Andrew’s post on the Fifth Circuit’s recent decision in United States v. Rahimi summarizes it well and criticizes some of the more problematic aspects. I want to take a step back and see what light it sheds on Bruen’s test. To my mind, there are two levels at which to consider the Fifth Circuit’s decision: (1) how it applies Bruen’s test, and (2) what its application reveals about Bruen’s test.
[NOTE: On March 2, the Fifth Circuit panel withdrew its prior opinion and filed a revised opinion, which reaches the same result regarding the constitutionality of 922(g)(8).]
Assessing the Application
There can be reasonable dispute about whether the panel properly applied Bruen’s test. On the one hand, the court fairly lays out the new test, which requires the government to put forward historical tradition, and then uses the two metrics Bruen laid out (the how and why) to test whether the challenged modern regulation is sufficiently analogous. On the other hand, there are some odd moves within the application of the test. I’ll focus on three.
First, the panel concluded that neither Bruen nor Heller restricted the scope of the Second Amendment to law-abiding, responsible individuals. It noted a debate between judges on different circuits (the Third and Seventh) over the question of whether individuals fall within the Second Amendment’s ambit. It then selected a theory that brings nearly everyone inside that scope, relegating questions about restrictions to the second stage historical inquiry. It said a contrary ruling would (1) contradict Heller & Bruen, (2) unjustifiably treat the Second Amendment different than other individual rights, and (3) have no limiting principle. Acknowledging that the Supreme Court spoke in terms of law-abiding citizens, the panel said that “read in context, the Court’s phrasing does not add an implied gloss that constricts the Second Amendment’s reach.” Instead, those phrases “meant to exclude from the Court’s discussion groups that have historically been stripped of their Second Amendment rights.”
What’s most surprising about this discussion is that the court doesn’t cite a single Fifth Circuit case in this section of the opinion, despite a plethora of precedent dealing with the very question of who gets Second Amendment protection. This is all the more surprising because Rahimi grounds its conclusions in Heller as much as Bruen (given that the latter adds no new guidance on who is protected), so one might expect that post-Heller pre-Bruen caselaw would be relevant. In fact, the Rahimi court seems to read both Heller and the Second Amendment directly contrary to a prior Fifth Circuit panel in United States v. Portillo-Munoz—a case Rahimi does not cite once. In that 2011 case, the panel concluded that undocumented immigrants did not fall within the scope of the Second Amendment. Unlike Rahimi, the Portillo-Munoz court found Heller’s precise phrasing important: “The Court’s language in Heller invalidates Portillo’s attempt to extend the protections of the Second Amendment to illegal aliens. Illegal aliens are not ‘law-abiding, responsible citizens’ or ‘members of the political community’ and aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood.” Portillo-Munoz, contra Rahimi, found Heller to limit the scope of Second Amendment protections.
Portillo-Munoz also rejected the argument—embraced by Rahimi—that reading the Second Amendment this way would unjustifiably make it different from other individual rights. In considering whether the Second Amendment should be read consistently with the Fourth Amendment (which also protects rights of “the people”), the Portillo-Munoz found ample reason for a distinction.
[E]ven if there were precedent for the proposition that illegal aliens generally are covered by the Fourth Amendment, we do not find that the use of “the people” in both the Second and the Fourth Amendment mandates a holding that the two amendments cover exactly the same groups of people. The purposes of the Second and the Fourth Amendment are different. The Second Amendment grants an affirmative right to keep and bear arms, while the Fourth Amendment is at its core a protective right against abuses by the government. Attempts to precisely analogize the scope of these two amendments is misguided, and we find it reasonable that an affirmative right would be extended to fewer groups than would a protective right.
The Rahimi court doesn’t quite explicitly contradict Portillo-Munoz on this point because Rahimi does not speak in terms of the Fourth Amendment analogy, but Rahimi still quickly dismisses an argument that the Second Amendment might have a different coverage than other individual rights—an argument that Portillo-Munoz directly credits.
A second odd aspect of the implementation concerns Rahimi’s understanding of the historical tradition step. As Andrew noted, the court strictly read the requirement that the how and why of a historical law had to match fairly precisely the how and why of a modern law. And that led to at least one very strange ground for distinction. The government had offered laws from the founding period that disarmed groups of individuals that the legislature considered dangerous. But those could not serve as proper analogues to 922(g)(8), said the court, because they applied more broadly and for broader purposes than the federal prohibition.
Despite some facial similarities in how these “dangerousness” laws worked—like § 922(g)(8), they operated to disarm covered people—there were also material differences. For one, they disarmed people by class or group, not after individualized findings of “credible threats” to identified potential victims. Even more, why they disarmed people was different. The purpose of these “dangerousness” laws was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another. Therefore, laws disarming “dangerous” classes of people are not “relevantly similar” to § 922(g)(8) such that they can serve as historical analogues.
That is an exceedingly strange reason to dismiss historical analogues. The court says that they applied to more people and were based on group characteristics rather than individualized findings, and sought to counteract broader public harms than protecting individuals from “specific threat.” In other words, the court seems to be saying that the challenged federal law is too narrowly tailored to the problem it seeks to solve. Does that suggest that making the prohibition less targeted would be more likely to insulate it from constitutional invalidity? It seems the court just needed a reason to distinguish the laws. I have no doubt that, if the situation were reversed, the court would still distinguish the history away (e.g, if the law it was reviewing was a broad-group based prohibition and the proffered analogue was a narrow one that required an individualized showing).
Third, also in the second stage of the Bruen test, the court inexplicably dismissed several proposed analogues on grounds that the states later changed their laws, as if laws in effect at the time of the Second Amendment’s ratification become less probative because future legislatures saw different needs at different times. (Bruen did make longevity relevant in uncertain ways, but the court here seems less concerned with duration than with future alteration.) Consider its treatment of three state laws that required firearm forfeiture for anyone going armed to the terror of the people, in Massachusetts, Virginia, and New Hampshire. Those three laws were in effect at the founding, but the court still found a way to discard them. “[F]airly early on, Massachusetts and Virginia dropped forfeiture as a penalty, . . . thereby undercutting the Government’s reliance on those laws.” How early? Well Massachusetts amended its law in 1795, but although the court finds the proximity to the Second Amendment’s enactment persuasive, it doesn’t provide any evidence to suggest the amendment had anything to do with the Second Amendment. But Virginia did not do so until 1847—more than half a century after the Second Amendment’s ratification! I’m not quite sure how that can be characterized as “early on.” (And it bears emphasizing that other courts facing challenges to federal laws have viewed laws enacted more 50 years after ratification as too late to shed light on original meaning.)
With those two state laws dismissed, it was down to New Hampshire. Given no evidence that New Hampshire jettisoned its forfeiture provision in the same period, the court could now safely dismiss New Hampshire as merely “one outlier” that could not support a tradition. (An adjacent problem is the court’s emphasis on the forfeiture penalty in the old statutes because the federal law under review does not require forfeiture of any firearms; a person who is prohibited from possessing guns can transfer or sell them or remove them from his custody and control during the pendency of the disqualification, but he doesn’t lose them for good.)
The panel’s application of Bruen’s test is, at times, surprising. But that’s not to say the entire implementation is so one-sided. Other conclusions the court reaches, some of which Andrew observes, seem in line with what Bruen likely imagined for application. That leads to the other level at which to view the decision.
What the Application Reveals
Even though I highlighted some strange ways the court applied the test, I don’t think the conclusion is entirely inconsistent with Bruen. To be sure, reasonable minds can differ on whether a given historical precursor is “sufficiently analogous,” and as Andrew notes the district courts are split on whether 922(g)(8) is constitutional after Bruen. Some have found the laws that Rahimi surveyed relevantly similar, while others have agreed with the Fifth Circuit that they are not.
But Rahimi is a reasonable implementation of the new test, and I think that underscores the problems with Bruen. Consider what one district court that reached the same conclusion as Rahimi said after looking to historical tradition: “This straightforward historical analysis . . . reveals a historical tradition likely unthinkable today. Domestic abusers are not new. But until the mid-1970s, government intervention—much less removing an individual’s firearms—because of domestic violence practically did not exist.” Or what Rahimi itself said, quoting, Bruen: “[W]e conclude that § 922(g)(8)’s ban on possession of firearms is an outlier that our ancestors would never have accepted.” That’s . . . basically the point. Our founders wouldn’t have accepted laws disarming domestic abusers because they did not even criminalize most domestic abuse. They safeguarded a husband’s right to beat his wife, so long as he didn’t inflict permanent injuries, not a wife’s right to be free from terror and violence.
What I think is one of the most problematic aspects of Bruen’s new test—as I detail in a draft article here—is that it requires treating the lack of historical regulations as dispositive. It doesn’t distinguish between, and therefore doesn’t require inquiry into, what different reasons there might be for past inaction. But obviously—as Justice Breyer emphasized, way back in Heller—“we must look, not to what 18th-century legislatures actually did enact, but to what they would have thought they could enact.” This caution went unheeded in Bruen. No matter why the founding generation didn’t enact a law, the absence makes similar laws untenable today. And decisions about modern domestic violence prohibitions reveal a darker rationale for the lack of historical regulations: Sometimes our ancestors didn’t regulate guns in a certain way because they didn’t care about the interests gun-wielders invaded. By making the lack of similar historical regulations fatal to modern gun regulations, Bruen freezes in time the founders’ values about whose interests matter.