Trying hard to convince the public that it did not make a constitutional mistake two years ago in broadly expanding Second Amendment rights, the Supreme Court or Friday did give federal and state governments a bit more power to stop gun violence.
The Justice’s 8-to-1 ruling in the case of United States v. Rahimi, with only Justice Clarence Thomas dissenting, now becomes the Court’s most important Second Amendment decision in the 16 years since it first established a personal constitutional right to have guns.
The new ruling upheld, against a sweeping constitutional challenge, a 1994 federal law that forbids ownership or possession of a gun by individuals who have been ruled by a court to be violent toward others. The law was passed in response to a nationwide increase in gun violence toward domestic partners.
Friday’s ruling specified that the ban on having a gun would be valid as long as an individual remained under a court’s restraining order because of prior violence against a partner. The Court left open the issue of whether it would violate the Second Amendment to impose a permanent ban on gun ownership, beyond the end of a restraining order.
Reaching this result was from easy for the Court: it took almost eight months for the Justices to write 103 pages – spread over multiple opinions. Seven of the Justices – all but two – wrote opinions to explain the outcome.
Although Chief Justice John G. Roberts’ lead opinion Friday made a studied effort to leave intact the Court’s 2022 ruling on the Second Amendment (which was written by Justice Thomas), the new decision was in fact a significant modification. Judges are now to rule on gun control disputes based upon somewhat flexible constitutional principles rather than searching to find identical or closely similar controls in prior history; without such a parallel, a modern restriction could not stand under the 2022 approach.
What dominated all of Friday’s opinions, including Thomas’ solo dissent, was a serious and wide-ranging debate about the role that history is to play when the Court decides the meaning of the Constitution. If there is one notion that seemed to emerge from all of that writing, it is that interpreting America’s basic document will not be found only in the nation’s long-past history but can take on some modern meaning.
In other words, while the Court’s dominant conservative majority is far from embracing the idea of a “living Constitution” that changes with the times, it will sometimes allow itself — even if hesitantly – to indulge the needs of modern society.
It remains to be seen, however, whether the approach on display Friday will be extended to other constitutional controversies, or will make this ruling an isolated aberration. When the Court – also in 2022 – ended a woman’s constitutional right to abortion, it did so based heavily upon its reading of long-past history, abandoning modern civil rights principles.
One of the more interesting facets of Friday’s ruling on gun rights was the further emergence of one of the most junior conservative Justice, Amy Coney Barrett, as a critic of inflexible reliance on history and tradition as a guide to constitutional meaning. She has begun to speak more often in separate opinions to spell out her basic views.
Besides Barrett, the other Justices who wrote opinions agreeing with Friday’s result but who also felt the need to speak out on their own were conservatives Neil M. Gorsuch and Brett M. Kavanaugh and liberal Justices Ketanji Brown Jackson and Sofia Sotomayor.
The only two Justices who did not write separately were Samuel A. Alito and Elena Kagan, but they did support the result and Roberts’ lead opinon. Justice Kagan also joined Sotomayor’s separate writing.
Alone in dissent, Justice Thomas hewed closely to the reasoning on which he had relied when he wrote for the Court two years ago in the case of New York State Rifle & Pistol Association v. Bruen. Because he could not find in history a single law like the one at issue in this case involving loss of gun rights under court protective orders, the 1994 law failed the Second Amendment test he had outlined in 2022 in the Bruen decision.
Thomas’s 32-page opinion sought to dispute every key point of the 18-page Roberts opinion. The depth of his disagreement amounted to proof that the Court on Friday had, in fact, taken a different approach this time.
Since the Bruen decision in 2022, lower federal court judges have been struggling with how to approach cases to flesh out the long history of gun laws in the United States. Those struggles were outlined in specific detail in Justice Jackson’s separate opinion; she argued that the Court should have gone further than it did Friday in spelling out, with clarity, how judges are to interpret the Second Amendment.
Friday’s decision will now be tested, repeatedly, as lower courts try to figure out how much different it is – if any – from what Thomas had written in the Bruen case and what Roberts wrote Friday in the Rahimi case.
The new case involved Zackey Rahimi, an Arlington, Texas, drug dealer, who had challenged the 1994 federal law’s constitutionality after he was charged with violating it. He lost his right to have a gun because a state judge had issued a restraining order against him after he assaulted his girl friend following an argument.
His challenge argued that the federal law banning gun possession in that situation was invalid under the Second Amendment, without regard to the facts in the case. In other words, his claim was that the law could not be enforced in any case without violating his Second Amendment right. A federal trial rejected his challenge, but a federal appeals court – relying on the Supreme Court’s Bruen decision – struck it down.
His loss of gun rights will be in effect only as long as the state court’s restraining order against him remains in effect – a two-year period.
The Court is expected to release new rulings on at least two days next week as it moves toward completing its work for the term and recessing for the summer. It has about a dozen decisions remaining, including the historic constitutional test of whether former President Donald Trump is immune to criminal prosecution for the January 6, 2021, uprising at the Capitol.
