Here's a thread on X by Carrie Severino of JCN. Although her former boss, Justice Thomas, was in dissent, she has positive things to say about the Court's decision—which she said is "yet another illustration of the obvious reality that the Court is not in the tank for one side over another, but rather working to apply neutral principles that promote the rule of law."
The Chief says the conduct at issue doesn’t have to be a twin to the historical precedent - just analogous. How analogous?he’swillingto sweep fairly broadly, especially, it seems to me, because Rahimi is a very bad guy. Kavanaugh and Gorsuch say, well, not too broadly, but this guy is very bad. Jackson says yes, gobroadly, because Bruen doesn’t help the lower courts and was wrongly decided. Thomas says Bruen basically requires a twin. Happy to see the 5th Circuit whacked for the second day in a row.
We seem to have gone overboard with concurring opinions. Once upon a time, in the days of William Howard Taft, this case would have been decided with one opinion for the Court and one dissent by Thomas. But now almost every justice seems to feel the need to write his or her OWN opinion so that the world knows what he or she thinks. It is, as Taft said about most dissents, a form of vanity; thinking more of oneself rather than the Court. I am not sure there is any solution, in the modern world.
Agreed. As a legal nerd, I love reading all these separate opinions—but I think you’re right that fewer would be better for the Court as an institution.
Hey David, thanks for the reporting! Would love an update on your thoughts for Flag-gate in light of the recordings of Alito and Roberts from just over a week ago. Should we in the legal community be concerned when a Justice appears to be fully committed to Christian Nationalism? These two data points (Appeal to Heaven + his recorded comments) seem more than sufficient to establish Alito’s perspective
Respectfully, I didn't hear anything from the secret recordings in which Alito expressed a commitment to "Christian Nationalism." He's obviously a very religious person, but we already knew that. The only thing newsworthy I got from the recordings came from Mrs. Alito's comments, which absolutely confirmed the Justice's account of the original flag incident. She seems to be a bit of a whack job with a serious flag fetish and a very strong mind of her own.
This is basically what I said on the podcast. Many Alito critics mocked his “it was my wife’s fault” statement, but the surreptitious recording of an unguarded Mrs. Alito confirmed the contents of Justice Alito’s letter.
I suppose our difference of opinion lies in our respective thresholds for what constitutes a commitment to Christian Nationalism. Just curious if anything short of an explicit statement would push you past your threshold?
I can appreciate reading Alito’s agreement with Windsor’s “People in this country who believe in God have got to keep fighting for that — to return our country to a place of godliness” as just “I’m very religious,” but (for me) the agreement + Appeal to Heaven flag strain the credulity of any null hypothesis that Alito’s NOT an adherent of Christian Nationalism, but that’s me
Yeah I saw your prev comment about her flag fetish - I get that perspective, I just find it unlikely - which is why I ask whether anything short of an explicit statement would convince you otherwise?
I ask because (short of such a statement) we’ll never ACTUALLY know if Alito shares his wife’s perspectives and is now throwing her under the bus and acting in bad faith, or instead is a man who doesn’t share his wife’s opinions but is fine with her flying flags over their household (is that a fair characterization of who you believe Alito to be?).
So how do we collapse the Alito super-position?
Let’s say the null hypothesis (H0) is the latter Alito - a religious man who doesn’t support Christian Nationalism or J6. The facts are 2 flags, a neighbor dispute, and a secret recording. The upside-down flag and dispute keep the null hypothesis in play w/r/t J6, but the alternative hypothesis for support of Christian Nationalism seems much more likely given the alignment of the recording and A2H flag (because for H0 to be more likely, who would Alito need to be? A conservative christian who doesn’t share his wife’s perspectives but is ok with her flying a Christian nationalist flag? Is that likely?).
An important caveat is we don’t have the full recordings, so that release would go a long way to updating priors established by this line of reasoning.
Imo a way to describe polarization is in defining who does/doesn’t get the benefit of the doubt. We’re looking at the same connect-the-dots, but I see an upside down flag and you see a long marriage b/w two people who don’t share the same perspective on everything. As some metacommentary here, I wonder if making those assumptions explicit will bridge divides in discourse.
Wow, Mimi, that’s a lot to respond to, but I’ll try. Since (as you say) we can’t get inside the heads of the Alitos, I wouldn’t ascribe bad faith to them absent compelling objective evidence. Personally, I attach no significance to the whole flag thing. The NYT story that started this was based on the clearly false narrative that an inverted U.S. flag was widely recognized and used as a symbol of support for Trump’s “Stop the Steal” nonsense. But there’s no evidence of such use beyond a few January 6 rioters (the vast majority held the U.S. flag upright) and some fringe MAGA groups; and the fact that the Washington Post originally passed on the story provides compelling evidence to the contrary. Like the inverted U.S. flag, the A2H flag has many meanings other than advocacy of Christian nationalism—historical interest, patriotism, general religiosity, and probably more. Note in this regard that the leaders of San Francisco--who yield to no one in sensitivity to real or imagined symbolism and wouldn't likely be taken as Trump supporters or Christian nationalists--flew the flag outside their city hall for years, continuing well after Stop the Steal and January 6. Finally, there is a huge difference between being religious and being a Christian nationalist. Christian nationalism in its true form is fundamentally incompatible with the First Amendment. I would need virtually conclusive evidence before accusing a Supreme Court justice of advocating something that is patently unconstitutional. (If all this isn’t enough for you, I did a lengthy post on the flag fiasco on my website, www.musingsfromoceanview.com. I also did a post on the Jesse Wegman op-ed you cite at the end of your comment.)
Thanks for the comprehensive response Henry! It’s fair to ascribe little significance to the flag affair due to its limited significance compared to, say, active wars.
I’ll definitely check out both of your posts, particularly re:Wegman’s post because I think our conversation shows a generational divide in how we view the prevalence (and risk) of bad faith actors. As Pr. McConnell’s quotation illustrated, I think younger people are starting closer to a presumption of bad faith rather than good faith, and I think there’s good reason to from both evidentiary and game theory perspectives.
I won’t touch on the numerous examples of bad faith that have eroded public trust (sorry for a third lengthy post!), but game theory wise, I’m reminded of Pascal’s wager. “Virtually conclusive evidence” seems too high a bar given that it would allow too many false negatives; it’d be too easy for bad faith actors to evade suspicion and the stakes here (despite it being about a flag) are high. Normatively, I’d also argue that in a time of such low regard for the Court, that Justices should go above and beyond to PROVE good faith rather than just rely on its presumption.
I’d also push back against the SF comparison because they’re fundamentally different organizing bodies (a local government vs a family); if anything, the local government flying a flag for its historical context aligns much more than a family flying a flag for its history. I think we can generally agree that families fly flags not for historical appreciation but for the cultural significance they hold - in this case, Dutch Sheets’s 2015 book.
Anyway, thanks again for the congenial dialogue, will read your posts after I do some work lol
It's just you. If the religious folks you know don't believe that the country should be "a place of godliness", they're not really religious folks. If you think that believing that we need more godliness means you are a Christian Nationalist, you probably need to get out more.
Bit of a strawman argument there or you’ve missed my point; for me, it’s the BOTH the recording AND the appeal to heaven flag.
Maybe I don’t get out enough - the religious couples I know tend to have fairly consistent views b/w them, and also don’t fly the Appeal to Heaven flag. Is it more common in your experience? Genuinely asking
Ah the suspected disagreement is why I asked anyway! This is one of the few places on the internet where I’ve seen constructive discourse; many thanks for carving out that space
Several observations based on a quick read: (1) This is obviously the right outcome. Any decision holding that the Second Amendment precludes denying firearms to Rahimi under the facts here would have to be deeply flawed. (2) The Roberts opinion’s emphasis on general principles rather than precise analogs in applying Bruen brings much-needed common sense to that decision. (3) The concurrences are very interesting. Untypically, all the concurring justices express full support (even praise) for the reasoning in the Roberts opinion. Their apparent purpose in writing is to stake out positions for future reference. Three of the concurrences (particularly Kavanaugh’s) read more like law review articles than judicial opinions.
I hope I am wrong, but I think all the Rahimi concurrences don’t bode well for those of us who are hoping for doctrinal clarity in the forthcoming presidential immunity opinion.
If you want a discourse on the flaws of originalism, Rahimi is a great place to start. The most important part of Rahimi is that a majority of the Court now practices originalism without explaining why it should be preferred. They just disagree on the details. Evan Kagan and Sotomayor play the game. Only Jackson seems skeptical.
After reading Roberts' opinion, I remember something a law school professor said: If you want precision and certainty, don't study constitutional law. His opinion is remarkably vague, but he is trying to apply rules that do not allow clarity. One prediction: a lot more courts will uphold gun control laws. Rahimi is a strong signal that they should. Lawyers and judges will no longer search, usually in vain, for precise historical analogies.
And perhaps we will have less absurdity in Second Amendment law. For example, cases finding bans on assault rifles unconstitutional or holding that governments cannot forbid huge ammunition clips. I even heard one professor argue that machine guns were legal because, at the time of the American Revolution, someone had created a Gatling gun.
Unless, of course, you are in the Fifth Circuit, where absurdity reigns. I expect most Fifth Circuit judges to read Rahimi narrowly because they can't take a hint.
Originalism is important only because most of the court believes in it. Ultimately, it will die out or be rejected. It makes no sense, has no strong political backing, and leads to results a strong majority of the public rejects.
Ultimately, if the Supreme Court wants to survive, it cannot go against public opinion unless we live in a tyranny. (A possibility, I fear). That is Rahimi's best lesson.
So, it's "history and tradition" with a twist: *Bruen* plus a "historical analog". And apparently, facially,§ 922(g)8 - and (g)9 - make the cut, as denying a firearm to a violent, domestic abuser under a court order has a sufficient "historical analog" - and common sense - to overcome a blanket 2nd A challenge.
How narrow should the opinion be read, and/or will this open up more challenges to *Bruen* ?
I'm at a conference right now where Erin Murphy of Clement & Murphy, who litigated (and won) Bruen, offered some preliminary thoughts on Rahimi (consistent with your comment). Here are two points she made:
1. Readers of Rahimi will wonder: is the Court backing away from Bruen? Note that Justice Thomas, the author of Bruen, is the lone dissenter in Rahimi.
2. In terms of looking at "historical tradition," as required by Bruen, what is the level of specificity at which the analysis should be conducted?
This seems to be the core of the disagreement between the majority and Justice Thomas.
Roman Martinez, who's on the same panel, said that the eight justices in the Rahimi majority seem to favor a pragmatic approach in answering the "what level of specificity" question, while Justice Thomas wants something stricter.
Thank you for your timely comment...very interested to hear any further takes from this panel re: *Rahimi*.
Also, even though the recent *Cargill* "bump-stock" decision was decided on "regulatory misapplication" grounds, could another challenge be raised upon the basic constitutionality of 26 U. S. C. §5845(b) - divorced from an ATF or other agency "interpretation" - as directed toward bump-stock-fitted weapons as de facto "machine guns" by any other name?
I can't believe that further modifications of rapid-fire "semi-automatics" won't lead to a weapon having all the traits of a machine gun other than its classification.
"For its part, the Fifth Circuit made two errors. First, like the dissent, it read Bruen to require a 'historical twin' rather than a 'historical analogue.' Second, it did not correctly apply our precedents governing facial challenges.... Rather than consider the circumstances in which Section 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where Section 922(g)(8) might raise constitutional concerns. That error left the panel slaying a straw man."
"I hope all is well! Big fan of the pod and newsletter (and, funny enough, right after your pod with Bryan Garner, I met with him for a writing class, ha). I write in now to briefly vent about Rahimi.
I agree fully with Justice Thomas's dissent (and do not mind Gorsuch's concurrence). It's pretty outlandish that surety laws and affray conditions (neither permanently abrogated Second Amendment rights) are comparable enough to endorse facial validity of 922g8. As Thomas said, the protections for those historical analogues involved way more due process and did not carry nearly so opprobrious a punishment. I further agree with Thomas that this invites in a whole myriad of new approaches to interpretation of THT—like Barrett's concurrence possibly leaving the door open for 'legislative possibility' (which renders a wide birth for interpretation).
While I get that part of the concurrences' roles (like Kavanaugh and Barrett) was to defend THT, it woefully lacks for Second Amendment analysis.
The way I see it, there are instances where one can uphold the facial validity of 922g1 (i.e. dangerous individuals that threaten true stability of the US), but we have laws that already cover affray type analogues (as Thomas pointed out—assault, etc.)
If anything, I think this opinion undermines history and tradition and will make lower courts struggle even more—it was clear in Bruen that 3 actual codified pieces of legislation at the time of the founding was insufficient to justify regulation. Those analogues were directly on point, and certainly we do not need an historical twin. Yet, now even surety laws hold a close enough analysis?
This is concerning for the sake of originalism as a whole and Second Amendment jurisprudence.
Sorry, this perhaps is more of a rant than anything else."
Here's a paper just posted by Rebecca Brown, Lee Epstein, and Mitu Gulati. From the abstract:
"This Essay reports data on the impact of Bruen and its predecessor, Heller, on gun rights cases. Put mildly, the impact was significant, increasing not only the number of cases in the courts but also the partisanship displayed in the application of Bruen. And that partisanship increase was particularly large on the part of Trump-appointed judges. The Supreme Court has now decided Rahimi, its first opportunity to apply Bruen. While the Court's new decision blunted some of the sharpest concerns raised by Bruen, it did not eliminate the key concern, recommitting itself to a test that places considerable unguided discretion in judges, inviting partisan bias. Thus, the revolution that the Court has wrought through Bruen and Heller seems only to have just begun."
I haven't yet read the opinions, I'm afraid -- too much else to do right now. Maybe I'll get to it over the weekend.
I am open to some argument that the laws here might (might! I have not delved into their particulars) not supply the necessary degree of due process consistent with removing a fundamental right. (If the rights of the Bill of Rights don't count as fundamental rights, I don't know what the term fairly understood can possibly mean.) Although my vague recollections are that he may have conceded away those arguments by not contesting judicial findings underlying the restrictions at issue here. And I doubt that even with enough due process anything of his case really changes.
Still, end of day, the idea that because there might not have been enough domestic violence statutes at the Framing, or at the second Framing at time of the Fourteenth Amendment, that therefore restrictions on domestic abusers are unconstitutional seems like originalism and textualism (and especially the Fifth Circuit) getting high on its own supply. (Strongly contra AO, I do not view there being a distinction between them -- originalism is textualism in light of the words with their original meaning. And there's nothing inconsistent about using observations about the world at time of enactment to verify, and to some degree in particulars, refine the meaning of the text.)
The question isn't whether you have *some exact legal analog*, in all its particulars, enacted in the time reasonably after ratification. The question is whether *the conduct at issue* was treated as cause for restriction of keeping and bearing arms. The conduct is not whatever the statute narrowly targets, it's the conduct *in general*. And being violent towards people is in fact something we've long punished people for, and we've imposed consequences on the keeping/bearing of arms if you're violent. That we maybe didn't have domestic abuse restrictions at either Framing is meaningless. It's whether we had any on *violence*. If Rahimi had done similar stuff against someone not in the domestic sphere, that conduct could have been punished at either Framing. The absence of a law in the domestic sphere isn't a *permission slip* that means people can't forfeit arms-use rights.
The Fifth Circuit is frequently the new Ninth Circuit. And this panel is just off in la-la land. But besides them, most of the people pushing the "originalism and textualism say Rahimi wins" are doing it in an attempt to smear the philosophies, not making an honest effort to fairly apply the philosophies.
Here's a thread on X by Carrie Severino of JCN. Although her former boss, Justice Thomas, was in dissent, she has positive things to say about the Court's decision—which she said is "yet another illustration of the obvious reality that the Court is not in the tank for one side over another, but rather working to apply neutral principles that promote the rule of law."
https://x.com/jcnseverino/status/1804200087079326073?s=46&t=dAMtcQgOk7D8xCQ6gIAPwQ
The Chief says the conduct at issue doesn’t have to be a twin to the historical precedent - just analogous. How analogous?he’swillingto sweep fairly broadly, especially, it seems to me, because Rahimi is a very bad guy. Kavanaugh and Gorsuch say, well, not too broadly, but this guy is very bad. Jackson says yes, gobroadly, because Bruen doesn’t help the lower courts and was wrongly decided. Thomas says Bruen basically requires a twin. Happy to see the 5th Circuit whacked for the second day in a row.
We seem to have gone overboard with concurring opinions. Once upon a time, in the days of William Howard Taft, this case would have been decided with one opinion for the Court and one dissent by Thomas. But now almost every justice seems to feel the need to write his or her OWN opinion so that the world knows what he or she thinks. It is, as Taft said about most dissents, a form of vanity; thinking more of oneself rather than the Court. I am not sure there is any solution, in the modern world.
Agreed. As a legal nerd, I love reading all these separate opinions—but I think you’re right that fewer would be better for the Court as an institution.
Hey David, thanks for the reporting! Would love an update on your thoughts for Flag-gate in light of the recordings of Alito and Roberts from just over a week ago. Should we in the legal community be concerned when a Justice appears to be fully committed to Christian Nationalism? These two data points (Appeal to Heaven + his recorded comments) seem more than sufficient to establish Alito’s perspective
Respectfully, I didn't hear anything from the secret recordings in which Alito expressed a commitment to "Christian Nationalism." He's obviously a very religious person, but we already knew that. The only thing newsworthy I got from the recordings came from Mrs. Alito's comments, which absolutely confirmed the Justice's account of the original flag incident. She seems to be a bit of a whack job with a serious flag fetish and a very strong mind of her own.
This is basically what I said on the podcast. Many Alito critics mocked his “it was my wife’s fault” statement, but the surreptitious recording of an unguarded Mrs. Alito confirmed the contents of Justice Alito’s letter.
Exactly!
Who ordered the US Marshall to sit in their car in front of the neighbor’s house? Why isn’t anyone talking about this abuse of power?
I suppose our difference of opinion lies in our respective thresholds for what constitutes a commitment to Christian Nationalism. Just curious if anything short of an explicit statement would push you past your threshold?
I can appreciate reading Alito’s agreement with Windsor’s “People in this country who believe in God have got to keep fighting for that — to return our country to a place of godliness” as just “I’m very religious,” but (for me) the agreement + Appeal to Heaven flag strain the credulity of any null hypothesis that Alito’s NOT an adherent of Christian Nationalism, but that’s me
My impression from everything I’ve read is that the Appeal to Heaven flag was also solely the work of his flag-loving wife.
Yeah I saw your prev comment about her flag fetish - I get that perspective, I just find it unlikely - which is why I ask whether anything short of an explicit statement would convince you otherwise?
I ask because (short of such a statement) we’ll never ACTUALLY know if Alito shares his wife’s perspectives and is now throwing her under the bus and acting in bad faith, or instead is a man who doesn’t share his wife’s opinions but is fine with her flying flags over their household (is that a fair characterization of who you believe Alito to be?).
So how do we collapse the Alito super-position?
Let’s say the null hypothesis (H0) is the latter Alito - a religious man who doesn’t support Christian Nationalism or J6. The facts are 2 flags, a neighbor dispute, and a secret recording. The upside-down flag and dispute keep the null hypothesis in play w/r/t J6, but the alternative hypothesis for support of Christian Nationalism seems much more likely given the alignment of the recording and A2H flag (because for H0 to be more likely, who would Alito need to be? A conservative christian who doesn’t share his wife’s perspectives but is ok with her flying a Christian nationalist flag? Is that likely?).
An important caveat is we don’t have the full recordings, so that release would go a long way to updating priors established by this line of reasoning.
Imo a way to describe polarization is in defining who does/doesn’t get the benefit of the doubt. We’re looking at the same connect-the-dots, but I see an upside down flag and you see a long marriage b/w two people who don’t share the same perspective on everything. As some metacommentary here, I wonder if making those assumptions explicit will bridge divides in discourse.
For an oped that touches on increased presumption of bad faith and legal education : https://www.nytimes.com/2024/02/26/opinion/constitutional-law-crisis-supreme-court.html
Wow, Mimi, that’s a lot to respond to, but I’ll try. Since (as you say) we can’t get inside the heads of the Alitos, I wouldn’t ascribe bad faith to them absent compelling objective evidence. Personally, I attach no significance to the whole flag thing. The NYT story that started this was based on the clearly false narrative that an inverted U.S. flag was widely recognized and used as a symbol of support for Trump’s “Stop the Steal” nonsense. But there’s no evidence of such use beyond a few January 6 rioters (the vast majority held the U.S. flag upright) and some fringe MAGA groups; and the fact that the Washington Post originally passed on the story provides compelling evidence to the contrary. Like the inverted U.S. flag, the A2H flag has many meanings other than advocacy of Christian nationalism—historical interest, patriotism, general religiosity, and probably more. Note in this regard that the leaders of San Francisco--who yield to no one in sensitivity to real or imagined symbolism and wouldn't likely be taken as Trump supporters or Christian nationalists--flew the flag outside their city hall for years, continuing well after Stop the Steal and January 6. Finally, there is a huge difference between being religious and being a Christian nationalist. Christian nationalism in its true form is fundamentally incompatible with the First Amendment. I would need virtually conclusive evidence before accusing a Supreme Court justice of advocating something that is patently unconstitutional. (If all this isn’t enough for you, I did a lengthy post on the flag fiasco on my website, www.musingsfromoceanview.com. I also did a post on the Jesse Wegman op-ed you cite at the end of your comment.)
Thanks for the comprehensive response Henry! It’s fair to ascribe little significance to the flag affair due to its limited significance compared to, say, active wars.
I’ll definitely check out both of your posts, particularly re:Wegman’s post because I think our conversation shows a generational divide in how we view the prevalence (and risk) of bad faith actors. As Pr. McConnell’s quotation illustrated, I think younger people are starting closer to a presumption of bad faith rather than good faith, and I think there’s good reason to from both evidentiary and game theory perspectives.
I won’t touch on the numerous examples of bad faith that have eroded public trust (sorry for a third lengthy post!), but game theory wise, I’m reminded of Pascal’s wager. “Virtually conclusive evidence” seems too high a bar given that it would allow too many false negatives; it’d be too easy for bad faith actors to evade suspicion and the stakes here (despite it being about a flag) are high. Normatively, I’d also argue that in a time of such low regard for the Court, that Justices should go above and beyond to PROVE good faith rather than just rely on its presumption.
I’d also push back against the SF comparison because they’re fundamentally different organizing bodies (a local government vs a family); if anything, the local government flying a flag for its historical context aligns much more than a family flying a flag for its history. I think we can generally agree that families fly flags not for historical appreciation but for the cultural significance they hold - in this case, Dutch Sheets’s 2015 book.
Anyway, thanks again for the congenial dialogue, will read your posts after I do some work lol
It's just you. If the religious folks you know don't believe that the country should be "a place of godliness", they're not really religious folks. If you think that believing that we need more godliness means you are a Christian Nationalist, you probably need to get out more.
Bit of a strawman argument there or you’ve missed my point; for me, it’s the BOTH the recording AND the appeal to heaven flag.
Maybe I don’t get out enough - the religious couples I know tend to have fairly consistent views b/w them, and also don’t fly the Appeal to Heaven flag. Is it more common in your experience? Genuinely asking
Sure! I discuss the controversy here (starting around 57:20):
https://thedispatch.com/podcast/advisoryopinions/the-consensus-court/
Amazing! Excited to give it a listen, thanks!
I suspect you might disagree with me—but that's okay! I welcome diverse viewpoints.
Ah the suspected disagreement is why I asked anyway! This is one of the few places on the internet where I’ve seen constructive discourse; many thanks for carving out that space
Barrett’s concurrence was the most interesting part for me. AO was spot on with predicting her shift away from the “tradition” part of THT.
Several observations based on a quick read: (1) This is obviously the right outcome. Any decision holding that the Second Amendment precludes denying firearms to Rahimi under the facts here would have to be deeply flawed. (2) The Roberts opinion’s emphasis on general principles rather than precise analogs in applying Bruen brings much-needed common sense to that decision. (3) The concurrences are very interesting. Untypically, all the concurring justices express full support (even praise) for the reasoning in the Roberts opinion. Their apparent purpose in writing is to stake out positions for future reference. Three of the concurrences (particularly Kavanaugh’s) read more like law review articles than judicial opinions.
No surprises here, although I thought Justice Thomas might get another vote or two for his dissent.
I hope I am wrong, but I think all the Rahimi concurrences don’t bode well for those of us who are hoping for doctrinal clarity in the forthcoming presidential immunity opinion.
If you want a discourse on the flaws of originalism, Rahimi is a great place to start. The most important part of Rahimi is that a majority of the Court now practices originalism without explaining why it should be preferred. They just disagree on the details. Evan Kagan and Sotomayor play the game. Only Jackson seems skeptical.
After reading Roberts' opinion, I remember something a law school professor said: If you want precision and certainty, don't study constitutional law. His opinion is remarkably vague, but he is trying to apply rules that do not allow clarity. One prediction: a lot more courts will uphold gun control laws. Rahimi is a strong signal that they should. Lawyers and judges will no longer search, usually in vain, for precise historical analogies.
And perhaps we will have less absurdity in Second Amendment law. For example, cases finding bans on assault rifles unconstitutional or holding that governments cannot forbid huge ammunition clips. I even heard one professor argue that machine guns were legal because, at the time of the American Revolution, someone had created a Gatling gun.
Unless, of course, you are in the Fifth Circuit, where absurdity reigns. I expect most Fifth Circuit judges to read Rahimi narrowly because they can't take a hint.
Originalism is important only because most of the court believes in it. Ultimately, it will die out or be rejected. It makes no sense, has no strong political backing, and leads to results a strong majority of the public rejects.
Ultimately, if the Supreme Court wants to survive, it cannot go against public opinion unless we live in a tyranny. (A possibility, I fear). That is Rahimi's best lesson.
So, it's "history and tradition" with a twist: *Bruen* plus a "historical analog". And apparently, facially,§ 922(g)8 - and (g)9 - make the cut, as denying a firearm to a violent, domestic abuser under a court order has a sufficient "historical analog" - and common sense - to overcome a blanket 2nd A challenge.
How narrow should the opinion be read, and/or will this open up more challenges to *Bruen* ?
I'm at a conference right now where Erin Murphy of Clement & Murphy, who litigated (and won) Bruen, offered some preliminary thoughts on Rahimi (consistent with your comment). Here are two points she made:
1. Readers of Rahimi will wonder: is the Court backing away from Bruen? Note that Justice Thomas, the author of Bruen, is the lone dissenter in Rahimi.
2. In terms of looking at "historical tradition," as required by Bruen, what is the level of specificity at which the analysis should be conducted?
This seems to be the core of the disagreement between the majority and Justice Thomas.
Roman Martinez, who's on the same panel, said that the eight justices in the Rahimi majority seem to favor a pragmatic approach in answering the "what level of specificity" question, while Justice Thomas wants something stricter.
Thank you for your timely comment...very interested to hear any further takes from this panel re: *Rahimi*.
Also, even though the recent *Cargill* "bump-stock" decision was decided on "regulatory misapplication" grounds, could another challenge be raised upon the basic constitutionality of 26 U. S. C. §5845(b) - divorced from an ATF or other agency "interpretation" - as directed toward bump-stock-fitted weapons as de facto "machine guns" by any other name?
I can't believe that further modifications of rapid-fire "semi-automatics" won't lead to a weapon having all the traits of a machine gun other than its classification.
The Chief's opinion should go a long way toward helping lower courts apply Bruen.
"For its part, the Fifth Circuit made two errors. First, like the dissent, it read Bruen to require a 'historical twin' rather than a 'historical analogue.' Second, it did not correctly apply our precedents governing facial challenges.... Rather than consider the circumstances in which Section 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where Section 922(g)(8) might raise constitutional concerns. That error left the panel slaying a straw man."
When I read “slaying a straw man” I was like Oooooo snap. The ultimate judicial diss.
Posting on behalf of a reader who emailed me:
"I hope all is well! Big fan of the pod and newsletter (and, funny enough, right after your pod with Bryan Garner, I met with him for a writing class, ha). I write in now to briefly vent about Rahimi.
I agree fully with Justice Thomas's dissent (and do not mind Gorsuch's concurrence). It's pretty outlandish that surety laws and affray conditions (neither permanently abrogated Second Amendment rights) are comparable enough to endorse facial validity of 922g8. As Thomas said, the protections for those historical analogues involved way more due process and did not carry nearly so opprobrious a punishment. I further agree with Thomas that this invites in a whole myriad of new approaches to interpretation of THT—like Barrett's concurrence possibly leaving the door open for 'legislative possibility' (which renders a wide birth for interpretation).
While I get that part of the concurrences' roles (like Kavanaugh and Barrett) was to defend THT, it woefully lacks for Second Amendment analysis.
The way I see it, there are instances where one can uphold the facial validity of 922g1 (i.e. dangerous individuals that threaten true stability of the US), but we have laws that already cover affray type analogues (as Thomas pointed out—assault, etc.)
If anything, I think this opinion undermines history and tradition and will make lower courts struggle even more—it was clear in Bruen that 3 actual codified pieces of legislation at the time of the founding was insufficient to justify regulation. Those analogues were directly on point, and certainly we do not need an historical twin. Yet, now even surety laws hold a close enough analysis?
This is concerning for the sake of originalism as a whole and Second Amendment jurisprudence.
Sorry, this perhaps is more of a rant than anything else."
Here's a paper just posted by Rebecca Brown, Lee Epstein, and Mitu Gulati. From the abstract:
"This Essay reports data on the impact of Bruen and its predecessor, Heller, on gun rights cases. Put mildly, the impact was significant, increasing not only the number of cases in the courts but also the partisanship displayed in the application of Bruen. And that partisanship increase was particularly large on the part of Trump-appointed judges. The Supreme Court has now decided Rahimi, its first opportunity to apply Bruen. While the Court's new decision blunted some of the sharpest concerns raised by Bruen, it did not eliminate the key concern, recommitting itself to a test that places considerable unguided discretion in judges, inviting partisan bias. Thus, the revolution that the Court has wrought through Bruen and Heller seems only to have just begun."
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4873330
I haven't yet read the opinions, I'm afraid -- too much else to do right now. Maybe I'll get to it over the weekend.
I am open to some argument that the laws here might (might! I have not delved into their particulars) not supply the necessary degree of due process consistent with removing a fundamental right. (If the rights of the Bill of Rights don't count as fundamental rights, I don't know what the term fairly understood can possibly mean.) Although my vague recollections are that he may have conceded away those arguments by not contesting judicial findings underlying the restrictions at issue here. And I doubt that even with enough due process anything of his case really changes.
Still, end of day, the idea that because there might not have been enough domestic violence statutes at the Framing, or at the second Framing at time of the Fourteenth Amendment, that therefore restrictions on domestic abusers are unconstitutional seems like originalism and textualism (and especially the Fifth Circuit) getting high on its own supply. (Strongly contra AO, I do not view there being a distinction between them -- originalism is textualism in light of the words with their original meaning. And there's nothing inconsistent about using observations about the world at time of enactment to verify, and to some degree in particulars, refine the meaning of the text.)
The question isn't whether you have *some exact legal analog*, in all its particulars, enacted in the time reasonably after ratification. The question is whether *the conduct at issue* was treated as cause for restriction of keeping and bearing arms. The conduct is not whatever the statute narrowly targets, it's the conduct *in general*. And being violent towards people is in fact something we've long punished people for, and we've imposed consequences on the keeping/bearing of arms if you're violent. That we maybe didn't have domestic abuse restrictions at either Framing is meaningless. It's whether we had any on *violence*. If Rahimi had done similar stuff against someone not in the domestic sphere, that conduct could have been punished at either Framing. The absence of a law in the domestic sphere isn't a *permission slip* that means people can't forfeit arms-use rights.
The Fifth Circuit is frequently the new Ninth Circuit. And this panel is just off in la-la land. But besides them, most of the people pushing the "originalism and textualism say Rahimi wins" are doing it in an attempt to smear the philosophies, not making an honest effort to fairly apply the philosophies.