The Volokh Conspiracy

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Some Commentary From The Left On Rahimi

I find myself in agreement with Mike Dorf and Linda Greenhouse.


I received a message last night that I did not know how to answer. Has there ever been a Supreme Court decision with a lopsided majority who insisted that it was simply reaffirming precedent, when in fact it was rewriting precedent. Sure, this happens all the time in 5-4 or (now) 6-3 cases, where the Roberts Court pretends to follow some decision when in fact it narrows or broadens it. But has there been such an 8-1 decision? I could not think of a case. [Update: A colleague flagged Groff v. DeJoy, which pretended to uphold TWA v. Hardison, when it in fact rewrote five decades of precedent.[

I think everyone realizes that the Court reinterpreted Bruen. Look no further than Linda Greenhouse's new column:

This was a misunderstanding of Bruen, Chief Justice Roberts insisted. The court had not meant to suggest "a law trapped in amber" but simply whether "the challenged regulation is consistent with the principles that underpin our regulatory tradition."

This was news to Justice Thomas, who objected that "not a single historical regulation justifies the statute at issue."

Chief Justice Roberts, for his part, found two, both imported into the United States from English common law. One required those found likely to "break the peace" by abusing a spouse or misusing firearms to post a bond or face jail. The other could disarm those who used weapons to "terrify the good people of the land."

"Since the founding," the chief justice said, "our nation's firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms." The law at issue in the case, he concluded, "fits comfortably within this tradition" and was "what common sense suggests."

There is quite a difference between a principle that "fits comfortably" on the one hand and an analogous regulation that has to be a near-perfect match on the other. Which requirement describes the real Bruen, a decision that the chief justice and four members of his 2024 majority had signed only two years ago? It's tempting to conclude that these justices wanted to reinterpret Bruen while not expressly disavowing it.

I agree fully with Greenhouse–not a sentence I write often. I welcome others to prove me wrong, but I doubt anyone will bother. The Court reached the "right" result so they'll let things sit. I regret all the scholarship on Bruen that was published in the last two years that has since been rendered obsolete.

Greenhouse also suggests that Justice Gorsuch "seemed particularly uneasy" and that Justice Barrett vigorously disagree with Kavanaugh's exposition on tradition.

I also found myself in agreement with parts of a post from Mike Dorf on the Kavanaugh concurrence:

I confess that before writing my post Friday or proofreading Prof Segall's post for Monday, I hadn't read Justice Kavanaugh's concurrence in full. I skimmed it and concluded it was a little law review article defending originalism against straw man arguments.

Reading the whole concurrence, as I had to in order to edit Rahimi down for the annual supplement to my casebook, confirmed my initial impression. For example, Justice Kavanaugh writes: "Some say that courts should determine exceptions to broadly worded individual rights . . . by looking to policy. Uphold a law if it is a good idea; strike it down if it is not." That's ridiculous. Nobody says uphold a law if it is a good idea or strike it down if it's a bad idea. Thus, my impression was correct. Justice Kavanaugh takes aim at a straw man. . . .

The entirety of Justice Kavanaugh's concurrence is a self-indulgent exercise the point of which appears to be to get himself quoted in books and articles about constitutional interpretation.

Dorf also suggests that Kavanaugh misread some caselaw concerning scrutiny.

T-minus six minutes to go till new opinions. Stay tuned.