Supreme Court maintains gun precedent, Thomas dissents

The 2022 Supreme Court precedent that bolstered Second Amendment rights for gun owners was affirmed on Friday despite a testy dissent from Justice Clarence Thomas in a ruling that upheld a gun ban for domestic violence offenders.

Thomas was the lone dissenter from an 8-1 majority opinion in United States v. Rahimi, which upheld a federal gun ban for people under domestic violence restraining orders — a decision that pleased the Biden administration and gun control groups. But despite the victory in favor of the government’s position, legal and firearms experts say the justice’s 2022 decision in a landmark gun case known as Bruen was left unscathed.

When Thomas authored the 2022 New York Rifle & Pistol Association v. Bruen decision, a 6-3 ruling set forth a new test for courts requiring gun regulations to conform with the nation’s history and tradition of firearm regulation. Chief Justice John Roberts and seven justices found that the domestic abuser gun statute could be likened to a tradition of disarming people who pose risks to public safety.

However, the Bruen author and lone dissenter in Rahimi said the majority failed to “point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence.”

“The question is whether the Government can strip the Second Amendment right of anyone subject to a protective order — even if he has never been accused or convicted of a crime. It cannot,” Thomas responded in his 32-page dissent, which was twice as long as the majority opinion written by Roberts.

Despite Thomas’s grueling dissent, Roberts’s emphasis of the “narrow” ruling in the Rahimi case overall preserved the relatively new Bruen test rather than diminishing it.

“Rather, we conclude only this: An individual found by a court to pose a credible threat to the
physical safety of another may be temporarily disarmed consistent with the Second Amendment,” Roberts wrote.

Cody Wisniewski, senior attorney for constitutional litigation with Firearms Policy Coalition, told the Washington Examiner the majority’s decision “underscores the fact that it is clear that individuals, peaceable individuals, have a natural, fundamental, and unalienable right to self-defense, which includes the keeping and bearing of arms.”

Plaintiff Zackey Rahimi, a Texas-based defendant, was placed under a restraining order after he allegedly dragged his girlfriend, with whom he has a child, in a parking lot and attempted to shoot a witness. He later allegedly partook in a series of five shootings and was indicted on the gun charge after police searched his home and found a rifle and a pistol.

Wisniewski said the majority was “so focused on the things that Rahimi did,” which distanced the defendant from other peaceable gun owners, “that it is understood that peaceable people have that natural right and that constitutionally protected right to self-defense.” He also said the decision is another reaffirming or “Version 3” of the 2008 ruling in District of Columbia v. Heller, which upheld individual rights to self-defense within the home.

The Justice Department argued in court that the challenged law in the case, 922(g)(8), was supported by analogues to surety and affray laws of the past, which included punishment for people who may engage in cruel or inhumane acts against their marital partners.

But Thomas wrote that “neither is a compelling historical analogue,” arguing that the majority didn’t consider “vital differences” when it reached the opposite conclusion in favor of the federal government.

The outcome of Rahimi provided clarity on how the framework established in Bruen applies to modern gun control measures, with Roberts suggesting that the test set in Bruen is “not meant to suggest a law trapped in amber.”

“The Second Amendment permits more than just those regulations identical to ones that could be found in 1791,” Roberts said. Without directly undercutting Thomas’s landmark majority opinion from two years ago, the chief justice emphasized that the case explained “a challenged regulation that does not precisely match its historical precursors ‘still may be analogous enough to pass constitutional muster.’”

Justice Sonia Sotomayor, an appointee of former President Barack Obama, critiqued Thomas’s dissent as “the strictest possible interpretation of Bruen.”

“It picks off the Government’s historical sources one by one, viewing any basis for distinction as fatal,” Sotomayor wrote in her concurrence, which was joined by Obama-appointed Justice Elena Kagan.

Justice Ketanji Brown Jackson, the newest member of the court who was appointed by President Joe Biden, chastised the Bruen precedent as a test that “appears to be creating chaos” in lower courts as different judges formulate inconsistent decisions about the constitutionality of gun laws.

“I concur in today’s decision applying Bruen. But, in my view, the Court should also be mindful of how its legal standards are actually playing out in real life,” Jackson warned.

Meanwhile, other Republican appointees, including Justice Brett Kavanaugh, stressed their reasoning for joining the majority in separate concurrences.

“Deciding constitutional cases in a still-developing area of this Court’s jurisprudence can sometimes be difficult,” Kavanaugh wrote. “But that is not a permission slip for a judge to let constitutional analysis morph into policy preferences under the guise of a balancing test that churns out the judge’s own policy beliefs.”

Justice Amy Coney Barrett suggested that lower courts have been using too narrow a “level-of-generality” to view gun laws, adding that “imposing a test that demands overly specific analogues has serious problems.”

“To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us ‘a law trapped in amber.’ And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a ‘use it or lose it’ view of legislative authority,” Barrett wrote. “Such assumptions are flawed, and originalism does not require them.”

Mark W. Smith, a constitutional attorney, professor of law, and the host of the Four Boxes Diner Second Amendment channel on YouTube, told the Washington Examiner he believes the Second Amendment community should be “pleased” with the narrow holding because the “Bruen methodology survived Merrick Garland’s attempt to destroy it with a case involving an allegedly very bad dude with bad facts.”

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Cato Institute Senior Vice President for Legal Studies Clark Neily suggested the decision does nothing to weaken the Bruen precedent.

Neily also emphasized that while Thomas’s point is “true” that there were no laws categorically disarming perpetrators of domestic violence at the time of the founding, the majority explained that the historical tradition test “requires only that the challenged law be sufficiently analogous to a founding-era restriction on guns — not that it be identical.”

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