The Volokh Conspiracy

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Rahimi, Meenie, Miney, Mo; After Only Two Years Bruen's Gotta Go!


In November, I wrote that the Fifth Circuit's Rahimi decision "was a faithful application of Bruen." Seven months later, now having read the Supreme Court's Rahimi decision, I stand by what I wrote. After Justice Thomas's dissent, the most intellectually honest opinion in Rahimi was Justice Jackson's concurrence. Jackson explained that "Today's effort to clear up 'misunderst[andings],' is a tacit admission that lower courts are struggling" with Bruen. The struggle is this: Justice Thomas meant what he wrote, but the other five members of the Rahimi majority did not. And they've now all run for the hills.

June 2022 was a strange time. The Court was on the verge of overruling Roe and the Lemon test. According to recent reporting by the New York Times, Chief Justice Roberts and Justice Kavanaugh did not sign onto Bruen until fairly late in the process, and only with a narrowing concurrence. And Justice Barrett was quite vocal about her own reservations. Had Bruen been decided in a different term without Dobbs and Kennedy, perhaps we would have gotten a different opinion. Had Chief Justice Roberts assigned the case to anyone but Justice Thomas, we would have never had Rahimi. The New York law would have been declared unconstitutional, but there would have been nothing about analogical reasoning. So many things had to go right–or wrong, depending on your vantage point–for June 2022 to happen the way it did. And so it did.

But only two years later, and the Court's originalists are fracturing. Vidal was the canary in the coal mine.

I still do not understand Justice Gorsuch's Rahimi concurrence. I think he would have been better off saying nothing than trying to explain his position. There is a small irony to Gorsuch's reliance on Salerno. That is the exact test that Judge Sutton used to avoid declaring the Affordable Care Act unconstitutional. More NFIB PTSDSalerno may also make a cameo in the NetChoice case, with regard to facial challenges.

I'll give Justice Kavanaugh credit. He is really trying to make "tradition" a doctrine. He put a lot of work into that concurrence. It is long. Probably too long. And the string cites to everything Justice Scalia wrote comes off a tad desperate–look at me, I'm just like Justice Scalia! The genius of Scalia is that he didn't look like he was trying. Kavanaugh is trying way too hard. Still, having read all of Kavanaugh's concurrence, I'm not sure I learned anything new that wasn't already in some of the articles he cited. It was at most a synthesis. And Mike Rappaport has already started to point out Kavanaugh's mistakes.

Then there is Justice Barrett. She is such an effortless writer. In only a few pages, she conveys far more novel insights than can be found in Kavanaugh's treatise. Still, I worry about her. She talks the originalist talk, but she is hesitant to walk the originalist walk. The level of historical support she demands is probably more than can be established in most cases. And when lawyers don't meet her burden, she will revert to some sort of common law judging approach. By the way, my prediction for Barrett based on her Vidal concurrence was right on point. Justice Jackson kept citing Garcia, and I worry that Barrett, perhaps like Roberts, may have a Harry Blackmun moment soon enough.

I'll have much more to say about the case in some future writings. Don't worry. I haven't forgotten about the Chief Justice.