Gun safety activists breathed a sigh of relief last week when the Supreme Court upheld a law prohibiting people with domestic violence restraining orders from possessing firearms by a commanding 8-1 margin.
But they shouldn't breathe too easily, wrote two legal experts for Slate. The right-wing justices didn't actually resolve anything over gun rights — they just made it even more confusing.
The case, United States v. Rahimi, was a major test of New York State Pistol & Rifle Association v. Bruen, a Clarence Thomas-authored opinion that took an absolutist stance on the Second Amendment to strike down restrictive gun permitting requirements and declare that any gun law must have existed in some form in the 1700s or early 1800s to be constitutional.
The same justices who joined Thomas in Bruen narrowed its scope with Rahimi, but didn't offer any consistent explanation for why and how it will work going forward.
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Bruen, wrote Dahlia Lithwick and Mark Joseph Stern, "Reimagined judges as amateur historians, or perhaps costumed reenactors of the founding, striking down every gun restriction that doesn’t have enough 'historical analogues' from the 18th and 19th centuries.
"The court instead cleaned up Bruen’s mess, transforming the decision into something less radical and more practical, but took great pains to paint its decision as a gentle refinement for confused lower courts.
"Nonetheless, Roberts kept the court firmly planted in the gun rights arena, giving policymakers a new test — under the guise of reaffirming the old one — that will spawn all-new confusion. We have entered the era of living originalism, with more Second Amendment chaos around the corner."
That's a problem, wrote Lithwick and Stern, for lower courts, who were already struggling with how to apply Bruen.
"I want to be really clear: This is not a win, this is a not-loss," stated Lithwick. "Rahimi prunes back the worst of Bruen without doing much to help solve the catastrophic gun violence in the country. Last year, more than 40,000 people were killed by guns in the United States. Gun violence is now the No. 1 killer of children in America. Every month about 70 American women are murdered by a gun-wielding intimate partner. If her abuser has a gun, a woman is five times more likely to be killed by that partner."
As far as the exact limits of the Second Amendment, added Stern, "I think it’s going to be a mixed bag. It’s still going to be a choose-your-own-adventure situation in the lower courts. The 5th Circuit is probably not going to take the hint. The 5th Circuit is going to continue to churn out extremist decisions affirming a sweeping right to bear arms specifically for its favored parties, and it will need to be reeled back in by the Supreme Court."
And this will start right away, he added, because the Supreme Court is likely going to send back tons of lower-court Second Amendment decisions to reconsider under Rahimi.
Kelly Roskam, a law and policy director at the Johns Hopkins Center for Gun Violence Solutions, concurred with their assessment.
"There’s still so much opportunity for subjectivity all over every single substep of this test — which really flies in the face of what we were told in Bruen, which was that this is so objective and administrable," she concluded. "What we have after Rahimi is much more open to interpretation and personal preference on the part of judges."
