Major firearms decisions are few and far between in the history of the Supreme Court. Most of our nation’s gun laws derive instead from a variety of 19th and 20th-century statutes, as well as an assortment of principles and concepts inherited from English common law (including surety laws and going-armed laws) . By contrast, most of our major Supreme Court decisions on guns derive from the past 16 years. This new jurisprudence began with DC v. Heller (2008), which established an individual’s right to bear arms, embedding the previously little-touched Second Amendment into our legal system. Many are often surprised to learn that the Second Amendment was not the incontrovertible law of the land in the sense we think of it now until so recently, but it’s true. But the real flurry of activity in firearms jurisprudence has been in just the past two years, in which the Supreme Court has introduced a new and controversial paradigm for approaching legislation on gun use and ownership. Perhaps surprisingly, we now live in the most active, complicated period in the history of Supreme Court jurisprudence on gun issues.
What is the “Bruen Test”?
The Supreme Court’s new paradigm on guns was introduced in a 2022 decision–New York State Rifle and Pistol Association v. Bruen, Superintendent of New York State Police—which placed “history” at the center of firearms jurisprudence. Under what some scholars are calling the “Bruen test,” courts must now evaluate whether a gun law is “consistent with the Nation’s historical tradition of firearm regulation” to determine its constitutionality. Bruen’s originalist reading (the majority opinion was authored by Clarence Thomas) is quite vague on the particulars. What, exactly, is the nation’s historical “tradition” of firearm regulation? How does one decide between a law from 1810 that says one thing and another that says the opposite from 1820? How do developments in firearms technology change the reading of decisions based on technical specifics (relevant to Garland v. Cargill, this summer’s case on bump stocks)? Bruen offered little direction on these and other questions and subsequent Court rulings have provided insufficient clarification. We still don’t really know what the “Bruen test” entails and what that will mean for our country’s gun laws. Gun violence remains very high in the United States, and the issue, like so many others, is a virtual nonstarter at the congressional level. The stakes, of course, are high.
Challenges and Consequences: U.S. v. Rahimi
The Bruen decision directed lawyers, scholars, and judges to the thousands of firearms statutes and laws that have been drafted in American history since colonial times to establish the historical “consistency” of a new law. English common law, stretching back as far as the 13th century, is also fair game. In its entirety, this is an almost impossibly large corpus of laws from which to draw discrete conclusions. These laws were written in so many different contexts and by so many different authors that it is exceedingly challenging to establish with certainty any consistent interpretations.
The chaos unleashed by Bruen has led some of the Court’s originalist bloc, including Amy Coney Barrett, to question the workability of the Bruen test. In her concurring opinion in this summer’s U.S. v. Rahimi—which upheld that an individual who is subject to a domestic violence restraining order can be deprived of possession of a firearm—Barrett suggested that the legal community should only look for more general “historical analogs,” as opposed to more prescriptive “historical twins” of contemporary gun laws, hopefully loosening the constraints of the strict originalist approach endorsed by Thomas (who was the lone dissent in Rahimi). Nevertheless, Barrett did not fundamentally challenge Bruen or its originalist paradigm. Even with the questions introduced by Rahimi, the “inputs to the equation” of future gun decisions will remain historical, according to Joseph Blocher, a Duke Law Professor and leading expert on firearms law. “As I see it, Rahimi does not resolve the confusion of Bruen,” Blocher told me. The result is a “recipe for confusion and disagreement.”
The fact itself that the specific Rahimi case was granted certiorari by the Supreme Court indicates the uncertainty of the state of American firearms law. Simply put, this case would not have made it to the Supreme Court if it were not for Bruen, which has encouraged defendants to read their Second Amendment rights in the widest possible terms. Rahimi dealt with restrictions on gun ownership for domestic abusers. Such a restriction has been clearly established in American law since the 1994 Violence Against Women Act extended the provisions of the 1968 Gun Control Act to cover restraining orders. Bruen has encouraged conservative judges to dismiss those Congressional acts—which are generally treated as precedent-worthy—as too recent and too irrelevant in the face of a larger, amorphous historical tradition. Rahimi was granted certiorari by the Supreme Court because of a Fifth Circuit Court of Appeals ruling based on a spuriously slippery-slope reading of permissible challenges to Heller and the Second Amendment. That court essentially asserted that, if the government were to prevent those subject to domestic violence restraining orders from possessing guns, surely then unelected federal bureaucrats could also decide to restrict guns from any other category of people of its own artificial designation. The Fifth Circuit fretted that these categories could include “political nonconformists” and “people who do not recycle or drive an electric vehicle.” That court’s own political views were seemingly laid bare, intentionally or not, in these absurd suggestions. Fortunately, SCOTUS (minus Justice Thomas) disagreed with the Fifth Circuit’s Orwell-curious whataboutery. But the fact remains: a case on as flimsy ground as Rahimi—again, domestic abusers have long been prevented from possessing guns, without dispute—made its way to the Supreme Court because the Bruen test has introduced an unacceptable level of confusion and uncertainty about what is and is not consistent with America’s historical tradition of firearms laws. Bruen has opened the floodgates for all manner of questioning of past precedent. As with the Dobbs decision which overturned Roe v. Wade, American citizens have become more, not less, confused about their rights, under this 6-3 Court. If the Court does not soon clarify—or better yet, abandon —the Bruen test, this unproductive and destabilizing confusion can only persist.
