A hollow victory in the Supreme Court

June 22, 2024

On Thursday, the Supreme Court ruled that a domestic abuser with a demonstrated history of gun violence could have his right to possess a firearm suspended pending a hearing on a restraining order. See US v. Rahimi. The result was the only rational outcome in a case with horrific facts. As described by Mark Joseph Stern in Slate,

Zackey Rahimi, who beat his girlfriend, then fired shots at either her or a witness as she fled his abuse. His girlfriend subsequently obtained a restraining order from a state court that found that he posed “a credible threat” to her “physical safety.” Rahimi, however, continued harassing her, threatened a different woman with a firearm, and was identified as the suspect in at least five additional shootings. When the police searched his apartment, they found a pistol, a rifle, ammunition, and a copy of the restraining order.

Although we should celebrate the outcome, the fact that that case made it to the Supreme Court is emblematic of the extremism that the Court’s prior Second Amendment decisions have unleashed. Worse, in attempting to walk back from the precipice of the absurd absolutist position adopted by the Court in an earlier case (Bruen), the justices needed seven different opinions to explain how their ruling in Bruen applied to the facts in Rahimi.

In short, the opinion in Rahimi is a hot mess that leaves lower courts with no meaningful guidance on how to apply the nonsensical rule of Bruen to the real world of a society under siege by gun violence. There is an old saying in law that “Hard cases make bad law.” That saying is true of today’s ruling in Rahimi, as explained below.

It is important to reflect on how we arrived at this moment—one in which rational people heaved a sigh of relief that the Court did not adopt an insane result. The fact that we are grateful for the crumbs that fall from the table of the reactionary majority is a sign of the urgent need to reform the Court.

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Background on Supreme Court Second Amendment cases

The Second Amendment was ratified in 1791. Between 1791 and 2008, the Supreme Court interpreted the language of the Second Amendment as protecting a collective right to bear arms, as was made plain by the language of the amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

But in 2008, the Supreme Court overthrew two centuries of jurisprudence to rule in District of Columbia v. Heller, that the right to bear arms belongs to individuals seeking self-defense in their homes. In 2010, the Court ruled that the provisions of the Second Amendment apply to states and municipalities. Finally, in 2022, in NY State Rifle & Pistol Ass’n v. Bruen, the Court ruled that the “ability to carry a pistol in public was a constitutional right guaranteed by the Second Amendment.”

See how fast that happened? For two centuries, the right to bear arms was a collective right grounded in state militias. In the 14 years from 2008 to 2022, the right quickly morphed from a right to self-defense in homes to the right pack a pistol in public. And last week, the Supreme Court ruled that right extended to private ownership of machine guns.

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The problem with Justice Thomas’ majority opinion in Bruen (2022)

Justice Thomas wrote the opinion in Bruen upholding the right to carry a pistol in public. He adopted an “originalist” approach, holding that laws regulating guns were presumptively unconstitutional and that regulations could pass muster only if they were “consistent with the Nation's historical tradition of firearm regulation.” Because most modern firearms were not in existence when the Second Amendment was ratified, virtually all restrictions on gun possession would be ruled unconstitutional under the originalist test in Bruen.

In short, Bruen was an absolutist nightmare that would lead to absurd results. District and appellate courts were quickly mired in rulings leading to nonsensical results—such as the Fifth Circuit’s ruling that Rahimi could not be deprived of his guns despite his demonstrated history of actual and threatened use of firearms against domestic partners.

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The ruling in Rahimi (2024)

In Rahimi, issued on Friday, the majority ruled (8 to 1) that temporarily suspending a respondent's gun ownership in a domestic violence proceeding was constitutional, notwithstanding the holding in Bruen. Justice Thomas dissented, writing (correctly) that applying the holding in Bruen to the facts of the case in Rahimi should have resulted in a ruling declaring the temporary suspension unconstitutional.

But the majority in Rahimi understood that the facts in that case were horrific and that it would be ludicrous to apply their earlier ruling in Bruen as written. In a just universe, the majority should have declared Justice Thomas’ opinion in Bruen a mistake and adopted a new rule. Sadly, the majority did not overrule Bruen. Instead, it came up with an exception to Bruen, which was crafted by Chief Justice Roberts.  

The exception created by Roberts is as nonsensical as Justice Thomas’s original rule. Or, as Ian Millhiser writes in Vox, Justice Roberts’ opinion is “incoherent gobbledygook.” See Vox, The Supreme Court refuses to accept blame for its worst guns decision, in US v. Rahimi.

Justice Roberts narrowed Bruen by writing that some gun regulations would be constitutional if they were based on “analogous regulations that existed when the Constitution was framed.” Okay, so far. What “analogous regulations” existed in 1791 that were similar to depriving a domestic abuser of his firearms? Answer: There were no such regulations. (A point made by Justice Thomas.)

Instead, Justice Roberts pointed to “surety laws” that required some people to post a bond if it could be shown they might engage in dangerous activity. But posting money is nothing like being deprived of a firearm (a point made by Justice Thomas). Nonetheless, Justice Roberts ruled that posting a surety bond was “relevantly similar” to depriving someone of gun ownership. Uh, okay. If you say so, Justice Roberts.

Don’t get me wrong. I am happy with the outcome. But Justice Roberts’ test of finding “relevantly similar analogous regulations” is pure mush—especially if posting a money bond is “analogous” to being deprived of gun ownership. The test provides no guidance and casts lower courts adrift on a sea of challenges to local gun regulations.

But it gets worse. Justice Roberts left the door open for future challenges from plaintiffs like Rahami. Why? Because Rahami claimed that the statute in question was invalid on its face as applied to everyone. This distinction is explained by Ian Millhiser in his Vox article, cited above:

Facial challenges allege that a particular law is unconstitutional in all of its applications, meaning that a court must effectively strike it from the books. They stand in contrast to weaker “as-applied” challenges, which allege that a law is unconstitutional only when enforced against a particular party. As Roberts explains, facial challenges are notoriously difficult to win — the party challenging the law must “establish that no set of circumstances exists under which the Act would be valid.”

So, it is possible that if Rahami had simply said, “The law is invalid as applied to me,” he might have won under Justice Roberts’ approach.

In the end, the Supreme Court has anointed itself as the final arbiter of every challenge to a gun regulation because no lower court can be certain that it has divined whether a regulation is “relevantly similar” to an “analogous regulation” that existed in 1791. Lower courts are effectively consigned to playing a game of Twenty Questions with the Supreme Court.

The Supreme Court's inability to set forth a coherent, predictable, interpretable rule for lower courts is due to its rushing headlong to overturn long-established, settled precedent—as it did in Heller, Bruen, and Dobbs.

Again, in the words of Ian Millhiser,

Rahimi, in other words, is a monument to this Court’s arrogance, and its inability to admit its own mistakes. Bruen is an unworkable disaster that has caused mass confusion within the lower courts. It should be overruled in its entirety.

To similar effect, with a slightly more positive view of the opinion in Rahimi, see Mark Joseph Stern in Slate, The Supreme Court Walks Back Clarence Thomas’ Guns Extremism. Stern writes,

By replacing Thomas’ hard-line views with a more malleable standard, SCOTUS has ended one battle over guns. But by remaining in this area, where it has no right to be in the first place, the court has invited a thousand more.

Finally, for a review of the various concurring opinions, see Chris Geidner’s Substack, Law Dork, What the justices are writing about when they write about Rahimi. Geidner includes the following excerpt of Justice Sotomayor’s concurring opinion, which will be the final word on the subject for today’s edition:

The Court today clarifies Bruen’s historical inquiry and rejects the dissent’s exacting historical test. I welcome that development.

That being said, I remain troubled by Bruen’s myopic focus on history and tradition, which fails to give full consideration to the real and present stakes of the problems facing our society today.

In my view, the Second Amendment allows legislators “to take account of the serious problems posed by gun violence” not merely by asking what their predecessors at the time of the founding or Reconstruction thought, but by listening to their constituents and crafting new and appropriately tailored solutions.

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Update on candidacy of Dr. Kristin Hook in TX-21

For those readers who attended this newsletter’s event for Dr. Kristin Hook in her bid for election in TX-21 (against Rep. Chip Roy), her campaign asked me to provide an update. Wendy Davis and Beto O’Rourke have endorsed Dr. Hook in her challenge to one of Congress’ most extreme members. See Dr. Hook’s announcement here: Wendy and Beto are Ready to FLIP CHIP!

Dr. Hook has stepped into a heavily red district to keep hope alive for Democrats in Texas. She is approaching a fundraising deadline and would appreciate any help supporters can give. See the donation link here: Act Blue | Hook for Texas.

Dr. Hook’s campaign website and bio are here: Dr. Kristin Hook for Congress.

Those readers who attended the event with Dr. Hook know that she is a terrific candidate with a bright future. Although she faces an uphill battle, Democrats should be willing to provide credible support for every fellow Democrat with the moxie to step into the ring with an entrenched, well-funded opponent in a red district.

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Concluding Thoughts

Two things are scheduled for next week: The Supreme Court should issue its immunity decision, and President Biden will debate Donald Trump. Joe Biden has already won by agreeing to an early debate with rules that will allow Biden to speak on substance. That is all upside for President Biden.

Of course, Trump will be his usual outrageous self. Fox News will selectively edit the debate tape to create misleading video clips. Fox must do so—because it has been telling its viewers for months that Joe Biden is on the verge of dropping out of the race. So, when Biden wins (again), they will need to create a false narrative based on deceptive editing.

President Biden is diligently preparing for the debate with former Chief of Staff Ron Klain. Biden also just returned from meetings with the G-7 and NATO allies—for which he prepared extensively. Trump, meanwhile, is not preparing. Instead, he is giving 90-minute rambling campaign speeches that are a stream of lies. While the media may have lost interest in fact-checking Trump on the campaign trail, he will be subjected to a different standard after the debate. Good! Trump needs to be held to account for his lies!

Here's my concluding thought: You can’t control what happens at the debate, so don’t sweat it! Let Biden and his team do the work. That’s their job. Your job is to get people to the polls to vote for Joe Biden and Democrats in Congress, state legislatures, and municipalities. That should keep you busy and your mind off things you can’t control. In the coming week, we truly have every reason to be hopeful but no reason to be complacent!

Talk to you on Monday!