SCOTUS Decision on Rahimi Offers Some Hope and a Basis for Resuming the Critique of and Challenge to the Flawed Decisions in Heller and Bruen

Well, finally a day to celebrate a Supreme Court ruling that begins to address the very real threat of U.S. gun violence, in this case to victims of domestic abuse, and which offers a flicker of hope for the future on the broader gun violence/Second Amendment front.

And perhaps it is worth observing at the outset that SCOTUS justices, no doubt mindful of the turmoil and flawed jurisprudence of the June 2022 Dobbs decision on women’s reproductive rights, may have realized that a ruling in favor of Rahimi would have represented an overwhelming double whammy against America’s women, who are the vast majority of domestic abuse victims.

That aside, a close reading of the majority opinion written by Chief Justice Roberts gives one some comfort that the Court might have some self-awareness and has given some confirmation that past Second Amendment rulings are inherently flawed.

For me, the key take aways from the Rahimi decision are found in the concurring opinions of Justices Kavanaugh, Gorsuch, and Jackson and the solo dissenting opinion of Justice Thomas.  Together, these tacitly and even explicitly acknowledge, while justifying their ruling against Rahimi, that the Court broke stark new ground with its Second Amendment rulings in Heller (2008) and Bruen (2022) and that both represent deliberate building blocks for the future evolution of Second Amendment jurisprudence along equally questionable lines.

The concurring opinions of the conservative Justices make much of the Scalia/Heller ruling’s singular focus on individual rights and establishing self-defense as being integral to the Second Amendment.  In Heller, Scalia wasted no time in ditching of stare decisis and excising the “well organized militia” clause from the Court’s consideration of the Second Amendment as he “established” the Amendment’s pre-eminent focus on the individual’s right to firearms.  In so doing he set the stage in Bruen for Justice’s Thomas’s new fundamental concept of “self-defense” as the Amendment’s “central component”.

Scalia’s departure from the traditional SCOTUS position confirming and recognizing the militia clause deliberately ignored or downplayed the fact that Congress, as the Bill of Rights was undergoing ratification, was concurrently developing and approving legislation meant specifically to regulate the militia cited in the Second Amendment.  As a result, the Militia Act was passed and signed into law on May 8, 1792, less than six months after the Bill of Rights was finally ratified (December 15, 1791). Justice Thomas’s beloved “self-defense” phrasing does not appear in the Constitution, initially or as amended by the Bill of Rights, or in the 1792 Militia Act.

There are a number of revelatory comments in the concurring opinions of the concurring Justices and in Thomas’s last man standing dissent. I provide underlines and bolding on key phrases.

Let’s start with Justice Kavanaugh, whose lengthy concurring opinion opens with a consistent description of exactly what the Court did not do in 2008 in voting 5-4 in favor of Justice Scalia’s opinion in the Heller case that the Second Amendment’s “well regulated militia” clause was irrelevant and inconsequential.

According to Justice Kavanaugh:

·       (Pages 1-2) “The first and most important rule in constitutional interpretation is to heed the text—that is, the actual words of the Constitution—and to interpret that text according to its ordinary meaning as originally understood. The text of the Constitution is the “Law of the Land.” Art. VI. As a general matter, the text of the Constitution says what it means and means what it says. And unless and until it is amended, that text controls.”

 ·       (Page 3, with reference to Heller): “From 1791 to the present, “the First Amendment has permitted restrictions upon the content of speech in a few limited areas”—including obscenity, defamation, fraud, and incitement. United States v. Stevens, 559 U. S. 460, 468 (2010) (quotation marks omitted). So too with respect to the Second Amendment: “Like most rights, the right secured by the Second Amendment is not unlimited”; it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

 ·       (Page 10-11) “After ratification, the National Government and the state governments began interpreting and applying the Constitution’s text. They have continued to do so ever since. As the national and state governments over time have enacted laws and implemented practices to promote the general welfare, those laws and practices have often reflected and reinforced common understandings of the Constitution’s authorizations and limitations.”

 ·       (Page 14:) “Justice Scalia wrote for the Court that “a critical tool of constitutional interpretation” is “the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification.” 554 U. S., at 605 (emphasis in original); see also ibid.”

 ·       (Page 22) “Heller indicated that: (i) “prohibitions on carrying concealed weapons were lawful”; (ii) the Second Amendment attaches only to weapons “in common use” because “that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons”; and (iii) “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” are presumptively constitutional.”

 ·       (Page 23) “This Court’s approach in those three recent Second Amendment cases—and in the Court’s opinion today—is entirely consistent with the Court’s longstanding reliance on history and precedent to determine the meaning of vague constitutional text. Heller rested on “constitutional text and history,” ante, at 6 (quotation marks omitted), and laid the foundation for McDonald and then Bruen.”

 ·       (Page 24) “As the Court’s decision today notes, Second Amendment jurisprudence is still in the relatively early innings, unlike the First, Fourth, and Sixth Amendments, for example. That is because the Court did not have occasion to recognize the Second Amendment’s individual right until recently.”

For his part, Justice Gorsuch starts with a “textualist” misrepresentation of the Second Amendment in his assertions and offers a disingenuous prediction of what happens when judges are allowed to veer from text and history, as has happened in Heller and Bruen, and arguably Cargill:

·       (Page 1) “As this Court has recognized, too, the Amendment’s text “‘guarantee[s] the individual right to possess and carry weapons in case of confrontation.’”

 ·       Page 5) “Come to this Court with arguments from text and history, and we are bound to reason through them as best we can. (As we have today.) Allow judges to reign unbounded by those materials, or permit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule.”

Lastly, we have Justice Jackson to thank for clarity in summing up what has really been going on with the Supreme Court and the Second Amendment in this gun lobby hey day since the early 2000s:

·       (Page 4): “To be sure, our decision in District of Columbia v. Heller, 554 U. S. 570 (2008), which first recognized an individual right to keep and bear arms for self-defense, see id., at 628, was disruptive in its own way. After all, before Heller, “[t]he meaning of the Second Amendment ha[d] been considered settled by courts and legislatures for over two centuries,” and “judges and legislators . . . properly believed . . . that the Second Amendment did not reach possession of firearms for purely private activities.”

 While many if not most observers are accepting of the SCOTUS decisions on Heller and Bruen, it is clear that Justices Sotomayor, Kagan and Jackson see serious flaws in both.  Unfortunately, none have yet stepped forward, as did Justices Stevens and Breyer in their Heller dissents, to highlight, explain and seriously challenge the radical departures from stare decisis embodied in Scalia’s arguments in Heller, departures clearly recognized by Justice Kavanaugh writing in Rahimi.

That Kavanaugh cites Heller in acknowledging that restrictions on “dangerous and unusual weapons” are constitutional, would suggest a position that on its face would allow a ban on assault weapons but for Scalia and Thomas’s recasting of such dangerous modern weapons as being in common use and thus no longer subject to restrictions of any kind.

So where does Rahimi’s glimmer of hope leave us today going forward?

To this concerned citizen, it would seem to be a propitious time to exploit the obvious contradictions in the justices’ varied arguments in Rahimi, particularly those that clearly run counter to stare decisis prior to Heller and Bruen as well as counter to Heller and Bruen themselves.  Public commentary by leading legal scholars and experts, and knowledgeable opinion makers, should make the case for a clear and true reading of the history of the Second Amendment and related 1792 Militia Act, which together reflect an accurate portrayal of Congressional intent and legislation during the time the Bill of Rights was enacted.

It took the NRA and other key players in the gun lobby thirty years to impact the Supreme Court via Heller, and sustained pressure since to achieve the decisions on Bruen and Cargill. So we should expect it will take years, if not decades, to win the battle to restore normalcy and long-established stare decisis to the debate on and understanding of the Second Amendment.

The particular politics surrounding the SCOTUS Rahimi decision and Dobbs decision two years before presented real obstacles for the Court and, given political realities, it seemingly opted not to allow Rahimi to compound the popular backlash among women to Dobbs.

This may seem overly nuanced to some, but it does offer an opportunity and clear justification to resume the arguments made by dissenters Justices Stevens and Breyer in Heller to begin to try to overturn the gun lobby’s false narrative that has led to such violence in our great country. 

It’s a time for hope and for renewed commitment to getting the Second Amendment right, both in understanding its conception in the 18th century and its impact today in the 21st.  Let’s continue on, and stay the course until history and common sense prevail in our highest court and legislative bodies.

On to the next 2nd Amendment case while the drum beat of deadly firearm violence continues unabated.  Please join this important effort in support of a 2nd Amendment for 21st century America.