The US Supreme Court today released its 8-1 decision in US v Rahimi, holding that:
When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.
The fact it’s an 8-1 decision is itself a red flag. Only one justice dissented — Clarence Thomas, that guy who wrote the Bruen opinion. While the Rahimi opinion and its many concurrences claim to be following the Bruen standard, that’s just lip service.
I agree with Thomas’ dissenting opinion which maintains there is no relevant historical analogue to 18 U. S. C. §922(g)(8), a federal statute that prohibits individuals subject to a domestic violence restraining order from possessing a firearm.
The only examples that come close are affray laws and surety laws.
Affray laws were aimed at treason and other threats to public safety, not private threats to particular people. Those laws do not pose a risk of abuse by other private individuals, to maliciously disarm another.
Surety laws did not even deprive anyone of gun rights. The target of these laws was able to continue possessing and carrying guns, and even acquire new ones, so long as he posted a surety bond. The bond would be forfeited in the event the aggrieved person who sought protection (spouse, for example) was harmed. The bond was meant to encourage lawful behavior without infringing on the right to bear arms.
In terms of Bruen, these supposed historical analogues fail to be “relevantly similar” because of the lack of “comparable burden” that is “comparably justified”:
Much like we use history to determine which modern
“arms” are protected by the Second Amendment, so too does
history guide our consideration of modern regulations that
were unimaginable at the founding. When confronting such
present-day firearm regulations, this historical inquiry that
courts must conduct will often involve reasoning by anal-
ogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical reg-
ulation is a proper analogue for a distinctly modern firearm
regulation requires a determination of whether the two reg-
ulations are “relevantly similar.” C. Sunstein, On Analogi-
cal Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And be-
cause “[e]verything is similar in infinite ways to everything
else,” id., at 774, one needs “some metric enabling the anal-
ogizer to assess which similarities are important and which
are not,” F. Schauer & B. Spellman, Analogy, Expertise,
and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For in-
stance, a green truck and a green hat are relevantly similar
if one’s metric is “things that are green.” See ibid. They
are not relevantly similar if the applicable metric is “things
you can wear.”
While we do not now provide an exhaustive survey of the
features that render regulations relevantly similar under
the Second Amendment, we do think that Heller and
McDonald point toward at least two metrics: how and why
the regulations burden a law-abiding citizen’s right to
armed self-defense. As we stated in Heller and repeated in
McDonald, “individual self-defense is ‘the central compo-
nent’ of the Second Amendment right.” McDonald, 561
U. S., at 767 (quoting Heller, 554 U. S., at 599); see also id.,
at 628 (“the inherent right of self-defense has been central
to the Second Amendment right”). Therefore, whether mod-
ern and historical regulations impose a comparable burden
on the right of armed self-defense and whether that burden
is comparably justified are “‘central’” considerations when
engaging in an analogical inquiry. McDonald, 561 U. S., at
767 (quoting Heller, 554 U. S., at 599).7
The very existence of surety laws is evidence that, even in the context of threats to private individuals, the right to bear arms was to be protected absent some type of criminal charge or conviction justifying deprivation of the right.
As Thomas points out, §922(g)(8) requires no criminal charge or conviction and no due process. There are many options for prosecuting and convicting a person who is truly a threat, but this code provision requires none of those in order to take away an individual’s right to bear arms.
While there are a few silver linings seen in the various opinions (deprivation can be only temporary, no deprivation for lack of “responsibility”), overall the decision is very disappointing.
Clarence Thomas appears to be the only true intellect with integrity on the Court, and it will be a sad day when he leaves us.
There is another possibility. This may be only a temporary departure from Bruen, in order to avoid Dobbs-like political fallout from appearing to support the arming of domestic abusers. Sad to see or even suspect this sort of political calculus begrime the beautiful genius of Bruen, but it’s understandable.
