On Friday, the U.S. Supreme Court released the last of the opinions from its November argument session (actually late October and early November) — United States v. Rahimi. The issue in this case is part of Title 18, Section 922 of the U.S. Code (the section covering the possession and sale of firearms). In particular, paragraph (g) lists people who may not lawfully own a firearm including unlawful immigrants, convicted felons and those accused of felonies (i.e. Donald Trump), drug users (i.e. Hunter Biden), and, in subparagraph (8), people who are subject to qualifying orders of protection like Mr. Rahimi. Mr. Rahimi claimed in the trial court that subparagraph (8) violates the Second Amendment.
When we were last at the Supreme Court on the Second Amendment two years ago. Justice Thomas wrote the opinion of the Court and said that every other court that had been considering the Second Amendment was wrong in how they were looking at these issues. Rather than using heightened scrutiny (i.e. is the law narrowly tailored to promote a compelling interest) or intermediate scrutiny (closely tailored to promote a substantial interest), courts should be looking at legal history to determine the type of regulations that were permitted at the time that the Second Amendment was adopted. The Fifth Circuit, based on the language used by Justice Thomas, decided that, while there were somewhat similar regulations at the time of the Second Amendment, those regulations were not similar enough.
On the result, the Court decided by 8-1 that the Fifth Circuit was misinterpreting what the Court said two years ago. Of course, the one was Justice Thomas who actually wrote that opinion. From the current opinion, it is clear that the Supreme Court thinks that Justice Thomas’s language in 2022 was not precise (and some of the concurring opinions back then hinted that some of the justices who joined Justice Thomas’s opinion did not actually agree with it).
Chief Justice Roberts majority opinion stated that the Fifth Circuit was looking for too close of a match. According to the Chief Justice, the reasons for looking at the earlier regulations is to determine the why (in other words, the interests) behind the Eighteenth Century regulations of firearms and the how (in other words, what did the regulations do and were the regulations closely connected with the interests). According to the Chief Justice, the laws back in the Eighteenth Century did ban firearm possession by those who had engaged or were engaged in threatening behavior. And, at least for the part of subparagraph (8) which applies to Mr. Rahimi, people with orders of protection against them fit within that broad category. Thus, this part of the law is sufficiently similar to what was done in the Eighteenth Century to be constitutional.
What makes this case even more interesting is that besides the Chief Justice’s opinion, there were five concurring opinions. Given that Justice Kagan joined Justice Sotomayor’s concurring opinion, that means that only two justices agreed 100% with the opinion of the Court. Most significant were the dueling opinions of Justice Kavanaugh and Justice Barrett.
Justice Kavanaugh suggests that the Supreme Court should discard heightened scrutiny and intermediate scrutiny entirely as those are tools to allow judges to supplant the terms of the Constitution with their own policy preferences. The only thing that judges should be considering is the understanding of the Framers about the meaning of the Constitution (i.e. the history and interests behind the provision along with some consideration of post-ratification traditions about the meaning).
Justice Barrett, on the other hand, again raises significant concerns with the misuse of history (including post-ratification acts) to try to determine if current laws are valid. According to Justice Barrett (sort of echoing the majority opinion), many constitutional provisions are broad. And the Supreme Court should not be searching history for exact similarities to current statutes. Instead, Courts should recognize that the laws passed in 1800 dealt with things as they stood in 1800, and that, as circumstances change, what laws might be required will also change. As such, the Court should be consulting history to divine the principles embodied by the constitutional text. We should then apply those principles to modern society to determine what remedies are permitted by the constitution. Given changes to the problems, the remedies will not be exact matches for the remedies adopted in 1800. All that the courts should require is that current laws are analogous to those adopted in 1800.
Given the concurring opinions, this case still leaves a lot to be fleshed out by the lower court. Given the focus on proven danger, it is unclear, for example, that the regulation on all drug users and all felonies (given that many felonies are nonviolent) will survive challenge (and those challenges are working there way through the system). In short, this case is not the last word on these issues. And the question remains whether the Court’s approach to the Second Amendment is workable. Clearly, at least two justices think that it is and want to expand this approach to other issues. With the Court on the agenda for November’s election, this case is a warning of the chaos that electing Republicans could cause to the legal system.
