BELLEVUE, WA – Today’s narrow Supreme Court decision in Rahimi failed to produce the damage the anti-gun crowd hoped for against Bruen. The Bruen decision remains intact and will continue to be an important building block necessary to continue winning firearms freedom one lawsuit at a time.
None of the justices in the Bruen majority cast aside the test rearticulated in that decision which controls how Second Amendment challenges are to be analyzed. Additionally, the justices declined to adopt the Government’s preferred time period of reconstruction as the controlling era for which historical analogues may be drawn upon.
Rahimi posed a difficult issue for the Court to resolve. And while the Court may have arrived at a conclusion that society believes to be best, it did so in a manner that poses some inconsistencies with what Bruen demands. To be clear, domestic violence is abhorrent and those who commit such acts should be prosecuted to the fullest extent of the law – for which a conviction would result in their disarmament through imprisonment.
As Justice Thomas wrote “the question before us is not whether Rahimi and others like him can be disarmed consistent with the Second Amendment. Instead, 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.” Stripping an individual of their Second Amendment rights, when they have not been accused or convicted of a crime, is not consistent with what the Constitution protects.
The Court’s justification in upholding the law by cobbling together bits and pieces of historical laws to find a “historical analogue” may allow future courts to uphold various infringements on the Second Amendment by the same sort of manufacture.
While Rahimi himself is the focal point of this case, the unintended consequences of how the Court justified upholding 922(g)(8) may affect the Second Amendment rights of millions of Americans if the lower courts adopt a similar approach. This makes it all the more important the Court take any number of other Second Amendment cases at its door, to further clarify that the Second Amendment protects a pre-existing, fundamental individual right and how to appropriately conduct the analysis Bruen requires.