The nine members of the Supreme Court peered over a precipice. A disagreeable choice loomed before them.
They could apply their two-year-old gun-rights precedent, as a lower court had, and declare unconstitutional a federal law aimed at keeping guns out of the hands of individuals under court-issued restraining orders for domestic violence. If they endorsed such an extreme outcome, they knew, they would be taking down not only a 30-year-old law but also perhaps even the court itself, already at a near low in public esteem. Or they could step back from the edge, relaxing their embrace of the Second Amendment just enough to issue a judicially worded “never mind.”
Eight justices decided not to make the leap — all but Justice Clarence Thomas, clinging tightly to the precedent on which five of the others had joined him only two years earlier as he went over the edge. He was left alone on the bottom to complain forlornly that the court had failed to “point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence.”
Of course, I’m taking a few liberties here; I can’t know whether any of the justices understood their dilemma in quite this way. But it’s impossible to see the outcome in United States v. Rahimi as anything other than an exercise in institutional self-preservation. It certainly wasn’t an exercise in judicial coherence. While Chief Justice John Roberts’s majority opinion garnered eight votes, five members of his majority felt impelled to express their own contrasting if not exactly conflicting views in separate opinions.
Clearly, the chief justice’s succinct 18-page opinion didn’t fully satisfy everyone who signed on. Often in such cases, a justice who agrees with the opinion writer’s bottom line but who has a substantially different view of how to get there won’t sign the main opinion but will write a separate opinion “concurring in the judgment.” With enough of those, the majority opinion no longer speaks for a majority of the court. That didn’t happen this time, I think because all eight recognized a transcendent need for the court to tell the world, in a voice at least nominally unified, that “when we transformed the law of the Second Amendment in New York State Rifle & Pistol Association v. Bruen two years ago, we didn’t intend for it to lead to this.”
The Rahimi case was argued on Nov. 7, 2023, making it the oldest undecided case of the term by the time the court handed down the decision on Friday. What was going on during those eight-plus months? We can only assume that the final product took a lot of work, both individual and collective. It’s a good guess that not all the conservative justices were quick to sign onto the chief justice’s opinion, at least not until they could have their say.
Justice Neil Gorsuch seemed particularly uneasy. He concluded his short concurring opinion by pointing out that this case posed a “facial challenge” to the statute, a difficult burden for a plaintiff to meet because a law that is unconstitutional “on its face” must be shown to have no lawful applications. “The case before us does not pose the question whether the challenged statute is always lawfully applied or whether other statutes might be permissible, but only whether this one has any lawful scope,” Justice Gorsuch wrote, adding: “Nor should future litigants and courts read any more into our decision than that.” Noted.
Justice Brett Kavanaugh’s 24-page concurring opinion was a spirited defense of the court’s reliance on history in Second Amendment cases and, by extension, in other constitutional cases as well. “History is far less subjective than policy,” he wrote, adding: “And reliance on history is more consistent with the properly neutral judicial role than an approach where judges subtly (or not so subtly) impose their own policy views on the American people.”
As Justice Kavanaugh surely knew, those are highly contested statements inside the court. Earlier this month, in objecting to Justice Thomas’s reliance on history in a trademark case, Justice Amy Coney Barrett made this observation: “Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests. But a rule rendering tradition dispositive is itself a judge-made test.” That debate goes on.
Justice Thomas’s 6-to-3 opinion in Bruen, striking down a New York gun licensing law, held that all restrictions on gun ownership were presumptively unconstitutional except those with a historical precursor, either identical or closely analogous, at the time of the country’s founding. In the Rahimi case, the United States Court of Appeals for the Fifth Circuit, applying that novel history-is-everything approach to a federal law, found no 18th-century instance of taking guns away from perpetrators of domestic violence.
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.
That may be true, but there was something else at work here with implications beyond this case, and even Second Amendment doctrine as a whole. For some years, largely below the surface, the members of the court have been engaged in an important debate about the level of generality to apply when interpreting the Constitution. While both Chief Justice Roberts and Justice Thomas agreed in this case that history held the answer, the chief justice surveyed the 18th-century landscape as a whole while Justice Thomas drilled down in search of a perfect analogy.
Justice Barrett, in her concurring opinion, identified what she called the “level of generality problem” that has troubled the lower courts in trying to apply Bruen. “Must the government produce a founding-era relative of the challenged regulation — if not a twin, a cousin?” she asked. “Or do founding-era gun regulations yield concrete principles that mark the borders of the right?”
Justice Barrett continued: “Historical regulations reveal a principle, not a mold.” But she warned that “to be sure, a court must be careful not to read a principle at such a high level of generality that it waters down the right.” The court got it right this time, she said, so that “harder level-of-generality problems can await another day.”
That day may come very soon. Awaiting the justices’ action are petitions that raise a cornucopia of Second Amendment questions: whether people convicted of felonies can be stripped of the right to own a gun, either any felony or a nonviolent offense; whether a state ban on assault weapons is constitutional; whether guns may be barred from certain “sensitive places.” In the post-Bruen, post-Rahimi world, what principles should apply? What analogies might suffice?
And who will say?
Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.
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