United States v. Rahimi: Five Takes

Abstract

In 2022, the U.S. Supreme Court decided New York State Rifle & Pistol Association v. Bruen.^[1] In doing so, the Court “retconned” its earlier decision in District of Columbia v. Heller,^[2] explaining the meaning of Heller, and the standards for review thereunder, in ways that contradicted a large, if admittedly somewhat unsatisfactory, body of appellate case law.^[3] This left the appellate courts with the not entirely enviable job of replacing their body of post-Heller case law with something entirely new, in the expectation that the Supreme Court would eventually get around to telling them whether they managed to get it right this time.

And in fact, that happened in the Rahimi case. Writing in the Minnesota Law Review, we had observed that “[t]o a remarkable degree, Rahimi highlights a number of questions we had about the original Bruen decision itself. These questions, moreover, are ones that have cropped up with frequency in the courts of appeals.”^[4]

The Court addressed some of these questions, while raising others of its own. We will address a number of these in our now-famous “Five Takes” formula^[5] in the coming pages, secure in the knowledge that any questions left unresolved will simply produce more such in the future, yielding still further law review articles. Such are the simple joys of law professordom.

First, we provide a summary of the case itself. Take one then discusses the fact that in reversing the Fifth Circuit, the Court retreated somewhat from Bruen’s maximalist opinion. In our second take, we observe that apparently what we termed the Heller safe harbor has now been incorporated, however uneasily, into Bruen’s history-and-tradition approach. Take three discusses the many concurring opinions in which several justices elucidate and defend their version of originalism. Take four pays particular attention to Justice Kavanaugh’s concurring opinion in which he contrasts the use of history by judges with what he considers improper judicial policymaking represented by creation and application of standards of review, such as strict scrutiny. Take five looks forward to cases the Court will likely have to take up as it continues to clarify the proper application of Bruen, especially regarding nonviolent felons. A brief conclusion follows.

I. Introduction

Zackey Rahimi is not a nice person.^[6] He is, in fact, a living embodiment of Justice Frankfurter’s observation that “[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.”^[7] United States v. Rahimi is all about the extent to which one may be not very nice without losing one’s constitutional rights.^[8] And the answer is, one must be nicer than Zackey Rahimi—which, to be fair, is not exactly difficult.

The defendant, Zackey Rahimi, was involved in multiple shootings in Texas during 2020 and 2021, including one incident in which he shot a customer to whom he had just sold drugs and a separate apparent road rage incident.^[9] In yet another case, he shot at a law enforcement officer’s vehicle.^[10] He also fired shots into the air at a Whataburger after a friend’s credit card was declined.^[11] He was identified as a subject in the shootings, and when officers executed a search warrant of his home, they recovered a rifle and pistol; Rahimi admitted to being in possession of them despite being the subject of a domestic violence protective order that explicitly forbade him to possess firearms.^[12] He eventually pled guilty but appealed, arguing that the applicable statute, 18 U.S.C. § 922(g)(8), is unconstitutional after Bruen.^[13]

The Fifth Circuit first addressed what might be termed Bruen step one—whether the “Second Amendment’s plain text covers an individual’s conduct,” triggering a presumption that “the Constitution . . . protects that conduct.”^[14] The government argued that Second Amendment rights belonged only to “law-abiding, responsible citizens,” and that such citizens were “the people” to whom the Amendment’s guarantees extended.^[15] However, on the Fifth Circuit’s reading, Heller’s and Bruen’s reference to law-abiding citizens was a shorthand way of distinguishing the people to whom the Second Amendment applied from those traditionally stripped of rights mentioned in what we have termed the Heller safe harbor.^[16] Rahimi, the court noted, fell into none of those groups mentioned in the safe harbor.^[17]

The court rejected the government’s argument that Rahimi’s order of protection “remove[d] him from the political community within the amendment’s scope.”^[18] The order was the result of a civil proceeding, and while suspected of crimes at the time, he had not been convicted of any.^[19] The Fifth Circuit criticized the government’s position that an individual could “be readily divested” of the right to keep and bear arms, noting that the idea “turn[ed] the typical way of conceptualizing constitutional rights on its head. And the Government’s argument reads the Supreme Court’s ‘law-abiding’ gloss so expansively that it risks swallowing the text of the amendment.”^[20] The court further faulted the government’s argument for admitting of “no true limiting principle. Under the Government’s reading, Congress could remove ‘unordinary’ or ‘irresponsible’ or ‘non-law-abiding’ people—however expediently defined—from the scope of the Second Amendment.”^[21] Speeders, the political unorthodox, even non-electric car drivers, the court posited, might be at risk of losing the right to keep and bear arms.^[22] Rahimi, it concluded, “while hardly a model citizen, is nonetheless among ‘the people’ entitled to the Second Amendment’s guarantees, all other things equal.”^[23]

Turning to the history-and-tradition question, the court recited the language from Bruen approving of the use of historical analogies if an on-all-fours example of a firearm restriction cannot be found in history.^[24] Focusing on the “how” and “why” of the statute in order to evaluate the strength of the government’s analogies, the court enumerated the four “key features of the statute”:

(1) [F]orfeiture of the right to possess weapons (2) after a civil proceeding (3) in which a court enters a protective order based on a finding of a “credible threat” to another specific person, or that includes a blanket prohibition on the use, of threatened use, of physical force, (4) in order to protect that person from “domestic gun abuse.”^[25]

To the court, “[t]he first three aspects go to how the statute accomplishes its goal; the fourth is the statute’s goal, the why.”^[26]

For its part, the government offered three groups of historical analogues: “(1) English and American laws . . . providing for disarmament of ‘dangerous’ people, (2) English and American ‘going armed’ laws, and (3) colonial and early state surety laws.”^[27] (As we have seen, these are familiar arrows in the government’s quiver.^[28]) The Fifth Circuit rejected each in turn. These laws were not, the Fifth Circuit determined, proper analogies to the domestic violence statute.^[29]

The Supreme Court reversed, and where the Fifth Circuit’s analysis was narrow and specific, the Supreme Court majority’s analysis was broader and more impressionistic.^[30] As Chief Justice Roberts said, the Second Amendment jurisprudence is not “law trapped in amber.”^[31] It is telling, in fact, that the author of the Bruen opinion, Justice Clarence Thomas,^[32] is the sole dissenter in Rahimi.^[33] This is one of several aspects of the decision that we will address below. In short, the majority—having retconned Heller in Bruen—turned around and essentially retconned Bruen, opening up reasoning that it appeared to have foreclosed in that case.

Where the Fifth Circuit had concluded that the statutes, involving things like surety bonds and the doctrine of “affray”, were not proper historical analogies for evaluating the statute, the Rahimi majority concluded precisely the opposite.^[34] Acknowledging that neither of those statutes had the effect of actually disarming individuals, the majority nonetheless found that they provided general support for the idea of statutes disarming individuals: “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.”^[35]

II. Take One: The Supreme Court Blinks

In our earlier writing on Rahimi, we predicted that the unsympathetic character of Zackey Rahimi^[36]—coupled with a general lack of sympathy for those committing domestic violence—made a reversal of the Fifth Circuit highly likely.^[37] Well, we were right.

Other than, perhaps, child molesters, few if any segments of American society are more reviled than domestic abusers. Regardless of what the holding in Bruen might have indicated, the likelihood that a majority of the Supreme Court was going to rule in Mr. Rahimi’s favor approached zero. The Court did leave open the possibility of due process attacks on the statute, which Rahimi had not raised, but even if some future case were to hold that the statute violates due process,^[38] that would not be the same as holding that domestic violence disarmament statutes, lacking any extensive history and tradition, could not withstand Second Amendment scrutiny. In a sense, the outcome of this case was largely assured as soon as certiorari was granted.

One might argue—as Justice Thomas does in a vigorous dissent that is actually significantly longer than the rather slim majority opinion—that public attitudes, and public reception of Supreme Court decisions, should not affect the Court’s legal judgment.^[39] Fiat justitia, ruat coelum, and all that. But it is very clear that the Court, and in particular the Roberts Court, does not think that way.

A. Raich and Lower-Court Resistance

Indeed, one of the models for Rahimi might be Gonzales v. Raich, the case that signaled an end to a promised Commerce Clause revolution in the courts.^[40] Raich, as readers will remember, followed the arc of Commerce Clause cases that began with United States v. Lopez.^[41] That case struck down the federal Gun-Free School Zones Act on the ground that possession of a gun in a school zone was insufficiently related to commerce among the states to support Congressional power.^[42]

Under Lopez, Congress’s commerce power extends only to three categories: (1) channels of commerce; (2) instrumentalities of commerce; and (3) activities substantially affecting commerce among the states.^[43] High school student Alfonso Lopez’s possession of a gun in a San Antonio high school did not pass the test under (3). The court held that individual instances lacking a substantial effect on commerce could be aggregated to find such an effect overall, but only if those instances constituted economic activity themselves. Noneconomic activity—such as simple possession of a firearm—could not be so aggregated.^[44]

This was a sweeping decision, and a dramatic reversal of the Court’s post-New Deal Commerce Clause jurisprudence, which boiled down essentially to a statement that Congress can do whatever it wants so long as it calls it regulating commerce.^[45] The Court followed this up with United States v. Morrison, in which it struck down the civil-damages provisions of the Violence Against Women Act due to the lack of any economic character where sexual assault was involved.^[46] It seemed like the making of a constitutional revolution.

However, it was a constitutional revolution where nobody showed up. Lower courts proved deeply uninterested in actually applying the Lopez reasoning to strike down federal laws in any quantity, despite the plausible vulnerability of many statutes on these grounds.^[47] After a number of years, the Court retreated after taking Raich, a case that would have required the Court to strike down a major drug law in order to apply Lopez.

The combination of an unpopular defendant, and a (then) popular^[48] federal statute was too much for the Court, which found ways to retreat from Lopez without quite admitting it. As we have explained previously:

In the years following Lopez, hundreds of cases flooded the lower courts, most brought by defendants convicted of violating various federal criminal statutes claiming that those laws also exceeded Congress’s commerce power. In the five years after Lopez, however, only one law—the civil suit provision eventually invalidated in Morrison—was struck down by a federal appellate court. Even after Morrison, when the Court not only reaffirmed Lopez but seemed to add, “and we mean it,” courts were still reluctant to rigorously analyze federal statutes using the Lopez-Morrison framework.^[49]

Though before Raich signaled a retreat, lower courts were beginning to uphold as-applied challenges to particular federal statutes.^[50]

Raich pretty much put paid to that, providing lower courts with an excuse to retreat. Now there’s at least an argument that Rahimi will follow the Raich pattern: An unpopular defendant, a popular law, and a Supreme Court experiencing cold feet regarding its new doctrine. Writing in the Northwestern Law Review, we noted this possibility shortly after Heller:

Will Heller suffer Lopez’s fate, serving more as casebook fodder than as actual authority? On the surface, there are some analogies between the Commerce Clause and the Second Amendment that suggest that like Lopez, Heller itself may end up as so much sound and fury, signifying nothing—or at least nothing much.^[51]

On one view—or perhaps we should say one take—that is what happened here. On other views, however, there are some significant differences.

B. Raich vs. Rahimi

One important aspect of Raich, as noted in Justice Antonin Scalia’s concurrence, was that the regulation of home-grown marijuana for medical uses—the actual subject of the opinion—was essential to an overarching national regulatory scheme governing marijuana.^[52] The Court was thus afraid that a contrary result in Raich would undercut the federal power to regulate marijuana—and other illegal drugs—across the board.^[53] Given the size and (apparent) national importance of federal regulation of marijuana and other illegal drugs, that made the stakes in Raich very high.

By contrast, there is no overarching national regulatory scheme regarding domestic abuse. As Justice Thomas’s dissent argued at some length, the domestic violence statute is of relatively recent vintage, and for the vast bulk of American history the nation functioned without any federal regulation of domestic violence as it related to firearms possession.^[54] Overturning the statute, even on the ground that domestic violence firearms statutes fell outside the American history and tradition of firearms regulation, would have had a rather minor impact on both domestic violence law and on firearms regulation.^[55]

A contrary result in Raich would have worked a revolution in drug law. Whereas a contrary result in Rahimi would have been merely a blip, though, ironically, a blip that would have been subject to considerably more controversy than a contrary decision in Raich. And that is probably the real difference. To be sure, no one doubts that domestic violence is a serious problem. But it is not clear that statutes like this one do much to prevent it. And again, Rahimi had not been convicted of domestic violence in a criminal proceeding.

C. Rahimi vs. Sebelius

Perhaps a better analogy is of the Court’s retreat in NFIB v. Sebelius.^[56] In that case it seems pretty clear that the Court—or, at least, swing vote Chief Justice Roberts—was swayed to change position by public pressure, or perhaps more accurately elite pressure via op-eds in national newspapers by Ivy League law professors and the like.^[57]

That led to the somewhat unusual structure of the opinion, in which the four-Justice dissent read as if it were drafted as a majority opinion, while the majority opinion threaded a number of rather narrow needles to arrive at the desired result.^[58] As we noted at the time:

The opinion’s odd construction, and the curious refusal of the dissenters to sign on to the Commerce Clause portion of the Chief Justice’s opinion, among other things, suggested some last minute, behind-the-scenes maneuvering. On cue, the opinion’s release was immediately followed by a flood of stories that the Chief Justice had changed his vote after initially siding with conservatives to strike it down. Moreover, the story broken by Jan Crawford alleged Roberts did so in response to mounting pressure on the Court to uphold the Act.^[59]

There was, as far as we know, less intra-Court drama this time around, but that’s likely because the lineup stayed the same from the beginning. And if Roberts didn’t like the idea of striking down Obamacare in an election year, you can imagine his discomfort with striking down a law disarming the likes of Mr. Rahimi in an election year.

And, as David Lat observes, the Roberts Court is now Roberts’s Court. “This is John Roberts’s Court,” he wrote, “and the other justices are just sitting on it.”^[60] Roberts does indeed wield considerable influence, and there’s little room for doubt that seeing things go smoothly, and keeping the Court from being embroiled in controversy that might, in his view, damage its legitimacy is a key goal. Or as one might say in Latin, fiat iustitia, sed non nimis—let justice be done, but not too much.^[61] With that in mind, the outcome in Rahimi was a no-brainer, and it’s no surprise that Roberts wrote the majority, even as Justice Thomas, who cares not a fig for public opinion when it conflicts with his view of the law, wound up in dissent, despite being the author of the opinion which was ostensibly being applied.

At any rate, if assuaging elite opinion was Roberts’s goal, he succeeded admirably, as captured in a post-Rahimi assessment from that font of conventional opinion, the New York Times’s Linda Greenhouse: “The Supreme Court Steps Back [f]rom the Edge.” Wrote Greenhouse: “[I]t’s impossible to see the outcome in United States v. Rahimi as anything other than an exercise in institutional self-preservation.”^[62] Or maybe not entirely admirably, as Greenhouse continues: “It certainly wasn’t an exercise in judicial coherence. While Chief Justice John Roberts’s majority opinion garnered eight votes, five members of his majority felt impelled to express their own contrasting if not exactly conflicting views in separate opinions.”^[63]

But one can be consistent, or one can be politic. It’s very difficult to do both for long. Fiat justitia ruat coelum is a fine motto, but the Supreme Court is, for better or worse, a political branch in its own right. The days of its being a gaggle of technical experts deciding dry questions of law, if such days ever obtained, are now long gone. Perhaps fiat iustitia, sed non nimis is the best we can hope for.^[64]

III. Take Two: The Heller Safe Harbor Becomes Canon

If more evidence were needed that the majority pulled its punches or applied Bruen-lite, look no further than what became of what we have dubbed the “Heller safe harbor.”^[65] That was the phrase we employed to describe the enumeration of “presumptively lawful” regulations like bans on gun possession by felons and the mentally ill in Justice Scalia’s opinion.^[66] If Bruen’s history and tradition method was applied faithfully, we observed, it might call elements of the safe harbor—such as the ban on possession by felons—into question, as those prohibitions are of relatively recent vintage.^[67] We also observed that lower courts, post-Bruen, continued to use it to dispose of cases, noting that the Court had not repudiated it.^[68] A close reading of Rahimi strongly suggests that the safe harbor remains viable, which could further dilute even the Bruen-lite approach of the Chief Justice’s opinion.

In response to Rahimi’s argument that § 922(g)(8) was unconstitutional insofar as it barred him from possessing a handgun in the home for self-defense—which Heller described as the core of the Amendment—the Chief Justice disputed the premise. “Heller,” he wrote, “never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home.” He continued, “[i]n fact, our opinion stated that many such prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.’”^[69]

In his concurring opinion—about which more later—Justice Kavanaugh too cast the Heller safe harbor as entirely consistent with the history-and-tradition approach adopted in Bruen. He wrote:

Although Heller declined to “undertake an exhaustive historical analysis,” it recognized a few categories of traditional exceptions to the right. For example, 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.

In McDonald . . . the Court reiterated the presumed constitutionality of the “longstanding regulatory measures” identified in Heller.^[70]

Justice Thomas’s dissent describes the Heller safe harbor as “dicta” in his critique of the government’s argument that the Second Amendment belongs only to “responsible” and “law-abiding” citizens. He characterized its argument as “specious at best,” adding in a footnote that “[t]he only conceivably relevant language in our precedents is the passing reference in Heller to laws banning felons and others from possessing firearms. That discussion is dicta.”^[71] Nevertheless, Thomas’s dissent goes on to say that “[s]tates have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution.”^[72] Noting that Texas law classifies “aggravated assault as a felony, punishable by up to 20 years’ imprisonment,”^[73] Thomas seems at least implicitly to accept part of the Heller safe harbor, dicta or not.

Justice Thomas aside, no other Justice seemed willing to question—much less repudiate—the safe harbor, despite the tension that still exists between it and the history-and-tradition methodology prescribed by Bruen. The Court’s apparent decision to incorporate the Heller safe harbor into its Second Amendment canon combined with the Bruen-lite approach of the majority opinion suggests that what Bruen apparently gaveth, Rahimi tooketh away. Given the reluctance of pre-Bruen lower courts to find the Second Amendment a bar to any regulation short of total prohibition of gun possession or outright evasion of Heller,^[74] we think that lower court judges will shoehorn laws limiting gun rights into the Heller safe harbor, sustain them by resorting to ever loosening and freewheeling analogies, or both.

IV. Take Three: One, Two . . . Many Originalisms

The Supreme Court seems poised to harmonize its constitutional analysis across a number of doctrinal areas including substantive due process,^[75] the free speech clause,^[76] and the religion clauses,^[77] as well as the Second Amendment. In each area, the Court has embraced the history-and-tradition test sometimes at the expense of the familiar standards of review the Court has refined over the last sixty-plus years.^[78] However, as a majority of the Court embraces originalism as the alpha and omega of constitutional interpretation, it has become clear that originalism is not a methodological monolith. And there’s no better example of that observation than Rahimi’s multiple concurring opinions.

On the one hand, this means that originalism has matured beyond the “Framers’ intent” version of the 1980s and has acquired significant depth and sophistication. On the other hand, the variegated approaches to ascertaining constitutional meaning tend to undermine its most touted virtue—that it restrains judges. Or at least, it might prove to restrain them no better than other methods that current Justices criticize.

In this Part, we summarize the various Justices’ approaches to originalism, highlighting the (sometimes subtle) difference in approaches. We also argue—as one of us (Reynolds) did thirty-five years ago—that there are reasons to doubt the degree to which originalism, even that done conscientiously, constrains judges all that much.^[79] Note that we are not claiming, as some critics do, that originalist arguments are simply legalistic window-dressing festooning a foregone conclusion; rather, we claim that even when deploying historical arguments, discretion and choice are inevitable in the decision-making process.

As noted above, Chief Justice Roberts’s majority opinion attempts to soften Bruen’s sharp edges. Courts, he argued, read Bruen too strictly; “[t]hese precedents were not meant to suggest a law trapped in amber.”^[80] Were that the way a historicist approach to interpretation was supposed to work the Second Amendment would extend only to “muskets and sabers.”^[81] The key was identifying the “principles that underpin our regulatory tradition.”^[82] Courts “must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit” and apply that to modern circumstances.^[83] Roberts then emphasized the “how” and the “[w]hy” mentioned by Justice Thomas in Bruen.^[84]

Roberts stressed that surety laws and laws that prohibited going armed to terrorize the general population were enacted for a similar “why” (to deal with “individuals found to threaten the physical safety of another”) and with a similar “how” (temporary disarmament in cases involving conviction under the going armed laws) to enable the Court to sustain § 922(g)(8)—at least against a facial challenge.^[85] The fact that the Chief Justice mixed-and-matched the how and the why from different historical analogues suggests that not only does he seem to think that government need only establish an analogue that rhymes with the current regulation but that he would even find an approximate rhyme acceptable.

His Bruen-lite approach likewise did not linger too long over the fact that the opinion only cites four states as having outlawed going armed or affrays between the mid-eighteenth and mid-nineteenth centuries. Nor did the Chief Justice assay the percentage of the population covered by these laws.^[86] By contrast, Justice Thomas’s Bruen opinion implied that such evaluations were necessary to distinguish acceptable analogues from “outliers.”^[87]

For his part, Justice Gorsuch’s concurring opinion offers a normative defense of a text-and-history approach. We require the government to show that a regulation is both comparable to those regulating firearms in the past and comparable in the burden imposed, he argued, because the Framers sought to memorialize in the Bill of Rights those rights that they saw as preexisting.^[88] Those rights, moreover, “carr[y] the same ‘scope’ today that [they were] ‘understood to have when the people adopted’ it.”^[89] That scope is “trapped in amber” and judges “have no authority to question that judgment.”^[90] In other words, any social costs associated with the right itself are already baked in and the Court should not endeavor to contract the scope of the right based on “[d]evelopments in the world” or “facts on the ground.”^[91] He noted that the Court has over the years refused to create exceptions to the Confrontation Clause based on perceived harms to, for example, child victims who must testify in front of the defendant in open court.^[92]

Yet, Justice Gorsuch, too, concluded that the analogies to sureties and going armed laws were close enough to (temporarily) disarm Zackey Rahimi under § 922(g)(8) if “after notice and hearing, [a court] finds that he ‘represents a credible threat to the physical safety’ of others.”^[93] He acknowledged that Justice Thomas, looking at the same history, drew a different conclusion, averring that “reasonable minds can disagree,” but added that disagreeing over history “at least keeps judges in their proper lane, seeking to honor the supreme law the people have ordained rather than substituting our will for theirs.”^[94]

Gorsuch contrasted this proper reliance on text and history with the pre-Bruen lower court approach “where courts would weigh a law’s burden on the right against the benefits the law offered.”^[95] He approvingly quoted another judge who argued “that the . . . two-step test had become ‘just window dressing for judicial policymaking.’”^[96] Gorsuch mused that judges might have it “easier if they could simply strike the policy balance they prefer. And a principle that the government always wins surely would be simple for judges to implement. But either approach would let judges stray far from the Constitution’s promise.”^[97]

For his part, Justice Kavanaugh likewise criticized the tiered-scrutiny approach of the pre-Bruen courts—indeed, as discussed below, he seems to regard any judge-made intermediating decision as incompatible with originalism. The first part of his opinion, however, describes his hierarchy of proper authority for interpreting the Constitution’s “broadly worded” or “vague” provisions of the Constitution.^[98] It’s also true, he notes, that some provisions (like the First Amendment) written in absolute terms are understood to have exceptions and are not to be read literally.^[99] So how is one to identify these unwritten exceptions or suss out the meaning of those vague or broadly worded provisions?

Absent controlling precedent, a judge can rely on either history or policy, a distinction he explained thus:

Generally speaking, the historical approach examines the laws, practices, and understandings from before and after ratification that may help the interpreter discern the meaning of the constitutional text and the principles embodied in that text. The policy approach rests on the philosophical or policy dispositions of the individual judge.^[100]

“History, not policy,” he continues, “is the proper guide.”^[101] Reliance on history has a long pedigree and “can supply evidence of the original meaning of vague text,” is “less subjective than policy,” and “is more consistent with the properly neutral judicial role than an approach where judges subtly . . . impose their own policy views on the American people.”^[102] Judges employing history to illuminate the meaning of vague provisions are—and here he revives Chief Justice Roberts’s analogy from his confirmation hearings—umpires calling balls and strikes.^[103]

Justice Kavanaugh then offers a hierarchy of authority for pre- and post-ratification history as well as the proper use of precedent. Pre-ratification history can be helpful as “strong evidence of meaning” such as when language from the Articles of Confederation was repeated in the Constitution or by examining “pre-ratification national or state laws” that might help “discern the meaning of particular constitutional provisions.”^[104] Pre-ratification history “can be probative of what the Constitution does not mean,” observing that some constitutional provisions were intended “to depart from rather than adhere to certain pre-ratification laws, practices, or understandings.”^[105] By way of example, he noted that “[t]his Court has recognized . . . that no ‘purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed.’”^[106]

But “[w]hen the text is vague and the pre-ratification history is elusive or inconclusive,” however, “post-ratification history becomes especially important” because it may be all that stands between deciding the case using a proper method and “the judge simply default[ing] to his or her own policy preferences.”^[107] He argued that the Framers themselves understood that through custom and usage, “tradition,” or “liquidation,” the contours of vague provisions of the Constitution would become set and furnish guidance for present-day judges.^[108] “For more than two centuries,” he wrote, “[t]he Court has repeatedly employed post-ratification history to determine the meaning of vague constitutional text.”^[109]

Finally, there is precedent, which Justice Kavanaugh declares “fundamental to day-to-day constitutional decisionmaking in this Court and every American court.”^[110] While the rule of stare decisis is not inviolable, “[i]n light of the significant amount of Supreme Court precedent that has built up over time, this Court and other courts often decide constitutional cases by reference to those extensive bodies of precedent.”^[111] Even so, text and history still matter because “[w]hen determining how broadly or narrowly to read a precedent; when determining whether to extend, limit, or narrow a precedent; or . . . when determining whether to overrule a precedent, a court often will consider how the precedent squares with the Constitution’s text and history.”^[112] Kavanaugh then contrasts reliance on those proper sources of law to interpret the “vague” parts of the Constitution with an improper reliance on “policy,” about which we’ll say more in the next section.^[113]

Justice Barrett, in contrast to Justice Kavanaugh, is wary of post-ratification history. Originalism, for her, is “built on two core principles: that the meaning of the constitutional text is fixed at the time of its ratification” and is both knowable and carries legal force.^[114] “So for an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function.”^[115] While it is useful, its use “requires some justification other than originalism simpliciter.”^[116]

She then addressed the level-of-generality problem that persists after Bruen. What she terms “[o]riginal history” can be deployed to fix meaning at the time of ratification or it can be used to “determin[e] the scope of the pre-existing right that the people enshrined in our fundamental law,” which she calls “‘original contours’ history.”^[117] Properly employed, original contours history can help with the level-of-generality problem by revealing principles animating the historical regulatory analogues.

[While] a court must be careful not to read a principle at such a high level of generality that it waters down the right. Pulling principle from precedent, whether case law or history, is a standard feature of legal reasoning, and reasonable minds sometimes disagree about how broad or narrow the controlling principle should be.^[118]

In Rahimi, however, Justice Barrett thought the Court got it just right: the nation has historically disarmed those who threaten harm to others, thus, Rahimi’s challenge must fail.^[119]

For his part, Justice Thomas was more interested in demonstrating why the majority’s examples of surety and affray laws did not provide the proper kind of analogy Bruen called for than in defending originalism or dilating on its proper practice. Surety laws, for example, did not disarm those subject to them.^[120] Affray laws “regulated only certain public conduct that injured the entire community.”^[121] Moreover, affray laws “regulated a niche subset of Second Amendment-protected activity. . . . [By prohibiting] only carrying certain weapons (‘dangerous and unusual’) in a particular manner (‘terrifying the good people of the land’ without a need for self-defense).”^[122] He was critical of the majority’s mix-and-match approach to the “how” and “why” of both types of laws.

The Court’s . . . approach of mixing and matching historical laws—relying on one law’s burden and another law’s justification—defeats the purpose of a historical inquiry altogether. Given that imprisonment (which involved disarmament) existed at the founding, the Government can always satisfy this newly minted comparable-burden requirement. That means the Government need only find a historical law with a comparable justification to validate modern disarmament regimes. As a result, historical laws fining certain behavior could justify completely disarming a person for the same behavior. That is the exact sort of “regulatory blank check” that Bruen warns against and the American people ratified the Second Amendment to preclude.^[123]

As noted by Justice Thomas, the “ready mechanism” for dealing with Mr. Rahimi was well at hand: trial and imprisonment.^[124]

As the Court’s majority seems intent on adopting a text-and_-history approach across a range of constitutional provisions, some explanation of how each member sees that methodology working is helpful. As should be clear from the summary of the Justices’ positions, “originalism” is hardly a monolith and hasn’t been for some time. And yet, the variegated nature of contemporary originalism, it seems to us, tends to undermine one of its main selling points: that it constrains judges. This is not a new critique of originalism; indeed, one of us (Reynolds) made this point thirty-five years ago,^[125] after Robert Bork’s The Tempting of America introduced originalism to a general audience.^[126] Reynolds noted that “[i]f a theory can produce results over a wide range, as Bork himself says, it is useless as a check on the judiciary.”^[127] Moreover, Bork himself could be alleged to employ originalism in an outcome-determinative manner, though perhaps not intentionally. To prove the point, Reynolds revisited Bork’s bête noir, Griswold v. Connecticut,^[128] showing that both Douglas’s reasoning and Griswold’s result could be given an originalist cast.^[129]

First, Reynolds argued, Douglas’s bricolage of constitutional provisions, methodologically, was not too far afield from the approach Joseph Story advocated, and of which Bork approved.^[130] Just as Story could draw on constitutional structure and some presumptions of liberty to conclude that—the Constitution notwithstanding—nothing in it could be read to authorize legislatures to effect a naked transfer of property from A to B, Reynolds argued that Douglas’s invocation of various textual provisions were in service of determining “whether the state government could be presumed to possess . . . the ‘transcendental sovereignty’ to invade the ‘sacred’ right of liberty” by banning the use of contraceptives or “whether ‘[t]he people ought not to be presumed to part with rights, so vital to their security and well-being’ as the right to decide whether or not to have children . . . ‘without very strong, and positive declarations to that effect’ going beyond any general delegations of legislative power.”^[131]

Reynolds then “rewrote” Griswold to bring it more in line with original understanding as propounded by Bork. Pace Bork, Reynolds argued that the Constitution stands foursquare against those who would enact laws so that “a majority [could] obtain moral satisfaction by preventing minority activities of which it disapproves, notwithstanding the lack of any tangible adverse impact of these activities on others.”^[132] Though generally understood to have no legal effect, Reynolds’s close reading of the Preamble leads him to conclude, generally, that it expresses a philosophy that, in part, expresses “the idea that legislatures simply are not empowered to advantage one group at the expense of another merely for some private gain to the group in power.”^[133]

He bolstered that with a reference to the Fifth Amendment’s Taking Clause’s requirement of compensation for private property taken for public use.^[134] The Connecticut law in Griswold, he argued, enabled the “majority [to] get[] something for nothing. For the trivial cost of passing a law, it is able to enjoy a wonderful sense of moral gratification, while the costs of that gratification are borne entirely by the couples who are unable to use contraceptives.”^[135] He doubted that counts as “public use.” He also noted that his reworking of the opinion also resulted in a neutral principle of the sort favored by Bork: “Where a majority, to satisfy its own sense of morality, intrudes into the lives of individuals regarding activities that do not create any cognizable non-moral harm, such an activity is a ‘moral taking not for public use’ and should be regarded as” beyond the legislature’s power.^[136]

That Reynolds could—using Bork’s methodology and that of his approved practitioners of originalism like Joseph Story—reach the opposite conclusion than Bork in Griswold, led him to conclude that Bork’s central concern with the Madisonian dilemma—the notion that our Constitution empowers a democratic republic to act in the majority’s name, yet simultaneously contains counter majoritarian elements, the Supreme Court and its power of judicial review chief among them—was incapable of definitive resolution.^[137] Certainly theory, originalism included, was not up to the task of constraining judges in the fashion Bork demanded.^[138]

We would argue that the multiplicity of concurring opinions with the Justices offering their own variations on originalism suggests that not much has changed in thirty-five years, except that for the first time there are six members of the Court who subscribe to originalism and appear determined to reorient the Court’s constitutional analysis around history and tradition. This would be a shift of tectonic proportions, equal to the Court’s reorientation announced in the Carolene Products case.^[139]

Constitutional law, at least since the 1960s—but there are progenitors dating back to the Marshall Court—developed a skein of intermediating “decision rules” that provided courts with a means of “implementing,” to borrow Richard Fallon’s term,^[140] a Constitution whose “constitutional operative proposition[s],” however derived, can sometimes be of little help in deciding actual cases.^[141] These take many forms across many different areas of constitutional law,^[142] but are often lumped under the synecdoche “tiered scrutiny” or “interest balancing.”^[143] These decision rules have come in for criticism from the new majority for a decade^[144] and Bruen’s repudiation of Second Amendment doctrine created in the lower courts was a particularly forceful rejection of that approach to constitutional adjudication. With Rahimi, however, and with Justice Kavanaugh’s concurring opinion, we can discern the majority’s specific objection to the decision rules model of adjudication. Kavanaugh (and to a degree, Justice Gorsuch) repeatedly contrasts the constraining history-and-tradition approach with what he terms a “policy” approach to vague constitutional texts, which includes the use of decision rules, but boils down to “[u]phold a law if it is a good idea; strike it down if it is not.”^[145] We take a closer look at his bill of particulars against “policy” in the next section.

V. Take Four: Justice Kavanaugh’s Requiem for Tiered Scrutiny

After offering his hierarchy of originalist sources,^[146] Justice Kavanagh embarks on a critique of judicial decisions according to what he terms “policy.” Policy, moreover, he equates with:

[B]alancing approach[es] variously known as means-ends scrutiny, heightened scrutiny, tiers of scrutiny, rational basis with bite, or strict or intermediate or intermediate-plus or rigorous or skeptical scrutiny. Whatever the label of the day, that balancing approach is policy by another name. It requires judges to weigh the benefits against the burdens of a law and to uphold the law as constitutional if, in the judge’s view, the law is sufficiently reasonable or important.^[147]

Justice Kavanaugh claims that the use of these decision rules^[148] is inconsistent with the intent of the Framers, sits in opposition to committed originalists like Justice Scalia,^[149] and is antithetical to the role of the judge-as-umpire.^[150] He further claimed that tiered-scrutiny was created—à la John Robert Seeley’s claim about the origins of the British Empire—in a fit of absentmindedness, but that its application is limited to “discrete areas of constitutional law—and even in those cases, history still tends to play a far larger role than overt judicial policymaking.”^[151] They are thus for Kavanaugh an aberration, rather than representative of the Court’s approach to constitutional cases generally. He claims that:

One major problem with using a balancing approach to determine exceptions to constitutional rights is that it requires highly subjective judicial evaluations of how important a law is—at least unless the balancing test itself incorporates history, in which case judges might as well just continue to rely on history directly.^[152]

The subjectivity, in turn, “forces judges to act more like legislators who decide what the law should be, rather than judges who ‘say what the law is’” because it forces judges to weigh benefits and burdens—a quintessentially legislative function.^[153] Moreover, this balancing is ill-defined because the tests themselves are subject to manipulation. “The balancing approach can be antithetical to the principle that judges must act like umpires. It turns judges into players.”^[154] Reliance on history to divine the meaning of vague constitutional texts may require “nuanced judgment[]” and can be “inconclusive” but, he argues, it “tends to narrow the range of possible meanings.”^[155]

After this wind-up, Justice Kavanaugh pronounces himself satisfied that the majority opinion (and the prior Second Amendment cases) “has carefully followed and reinforced the Court’s longstanding approach to constitutional interpretation—relying on text, pre-ratification and post-ratification history, and precedent.”^[156] The restriction here, he concludes quoting from the majority opinion, is entirely consistent with the tradition of disarming those who present threats to the safety of others.^[157]

It is deeply ironic that, after a lengthy paean to history as the lodestar for constitutional interpretation, Justice Kavanaugh’s conclusion that Rahimi is “entirely consistent with the Court’s longstanding reliance on history and precedent to determine the meaning of vague constitutional text” rests entirely on the Heller safe harbor—the least historically-grounded portion of that opinion!^[158]

Equally ironic is the fact in 2023, Justice Kavanaugh endorsed what is probably the paradigmatic example of interest balancing in National Pork Producers Council v. Ross.^[159] He joined Chief Justice Roberts’s partial dissent in which Roberts would have remanded the California law banning the sale of pork in the state if it was produced under cruel conditions to the lower courts for an application of the dormant Commerce Clause doctrine’s eponymous Pike balancing test.^[160] Taken from Pike v. Bruce Church, Inc., the test asks whether a facially neutral law that applies equally to both in-state and out-of-state goods or economic actors is nevertheless unduly burdensome to interstate commerce.^[161] Earlier versions of Pike balancing were criticized by Justice Black as usurping the legislative role of weighing benefits and burdens,^[162] and Justice Scalia famously derided Pike as not so much “balancing” but rather “like judging whether a particular line is longer than a particular rock is heavy.”^[163] Justice Kavanaugh’s implicit endorsement of Pike balancing could not be more at odds with his insistence that there is “history” and “policy” in constitutional adjudication and never the twain shall meet.^[164]

As for his shopworn analogy of judges to umpires, and his accompanying claim that indulgence in “policy” requires subjective judgment, thus turning “judges into players,”^[165] we would simply note that the calling of balls and strikes also involves the umpire’s antecedent estimation of the strike zone itself. Anyone who thinks that calling balls and strikes or determining whether a runner is safe or out does not require subjective judgment has not watched much baseball. In any event, it’s hard to escape judgment, be that choosing among competing historical claims or deciding whether a party has satisfied the terms of a particular constitutional decision rule. We don’t think that either is any more or less constraining than the other. Nor does the latter inevitably involve unconstrained “policy” determinations as Justice Kavanaugh alleges.

Moreover, we think that placing “history” and decision rules in opposition to one another is a false choice. As Mitch Berman argues, intermediating rules between constitutional meaning and a judgment is inevitable. Deciding whether a law complies with or violates the Constitution’s “meaning” requires some decision rule—at a minimum a “preponderance of the evidence” standard.^[166] No less a self-proclaimed originalist than Robert Bork, saw no constitutional infirmity in employing decision rules to implement constitutional meaning. He argued that creation and expansion of doctrine—which is midwifed by application of decision rules in cases over time—was inevitable, but that:

[M]ost doctrine is merely the judge-made superstructure that implements basic constitutional principles. There is not at issue . . . the question of creating new constitutional rights or principles. When there is a known principle to be explicated the evolution of doctrine is inevitable. Judges given stewardship of a constitutional provision—such as the first amendment—whose core is known but whose outer reach and contours are ill-defined, face the never-ending task of discerning the meaning of the provision from one case to the next. . . . The world changes in which unchanging values find their application.^[167]

And so it has been since John Marshall offered his set of decision rules for implementing the Necessary and Proper Clause in M’Culloch v. Maryland.^[168] As far as Kavanaugh’s claim that these are limited to “discrete areas of constitutional law,”^[169] pick any provision and one will likely find that decision rules abound.^[170] It is the Court’s insistence on a history-and-tradition approach that is the recent anomaly.^[171] The new majority’s monomaniacal focus on history-and-tradition and its casual abandonment of a mode of adjudication and a body of doctrine that has matured over more than five or six decades leaves it vulnerable to the charges of radicalism and pursuit of a particular ideological agenda. As Rahimi demonstrated, the historical turn made in Bruen is not necessarily the restraining square knot its defenders claim, but can easily become a taut-line hitch, capable of being tightened or loosened at will. The improvement over tiered-scrutiny, interest balancing, decision rules, or what have you, is not apparent to us—and not to the lower court judges forced to apply Bruen in the passel of cases that must now be relitigated after it. We discuss a few of those cases—which the Court will likely have to take up—in our final section.

VI. Take Five: The Future for Felons

It’s widely accepted that people can lose their right to arms for felonies. But what sort of felonies? Heller included what we have called the Heller safe harbor,^[172] providing inter alia that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.”^[173] Justice Scalia’s treatment of felons seemed categorical. If you’re a felon, you lose the right to arms, period. This view was widely accepted.

Yet Bruen created some doubt on the subject. If we are to look to history and tradition, it is impossible to ignore the rather promiscuous designation of felonies in modern times, compared to the comparatively narrow selection of felonies at the time of the framing. In modern times, felonies are so common that the statute books overflow with them quite literally beyond counting, and Americans, usually unwittingly, commit felonies all the time, giving rise to the title of Harvey Silverglate’s celebrated book on overcriminalization, Three Felonies a Day.^[174]

One might imagine that a court would distinguish between, say, nonviolent regulatory crimes or other modern innovations, and crimes that have a history and tradition of being treated as felonies. On the other hand, one might imagine a court simply concluding that “felons” simply means “felons,” with, say, Martha Stewart being treated identically to the likes of Charles Manson.^[175] And, indeed, some courts have done so. But not all.

The Fifth Circuit in United States v. Daniels engaged in a very different sort of analysis.^[176] Patrick Daniels was an “unlawful user” of marijuana.^[177] The government presented no evidence that he was intoxicated when he was arrested, and provided no information on when he might last have used the drug.^[178] Nonetheless, a jury convicted him of violating 18 U.S.C. § 922(g)(3), which makes it illegal for anyone who is “an unlawful user of or addicted to any controlled substance” to possess any firearm.^[179] The question before the Fifth Circuit was whether Daniels’s conviction violated the Second Amendment.^[180]

The district court had held that Daniels was not part of “the people” protected by the Second Amendment, because his drug use meant he was not a “law abiding, responsible citizen.”^[181] Regardless, the district court found that § 922(g)(3) was a longstanding gun regulation of the sort that Heller had found presumptively lawful, akin to bans on gun ownership by felons and the mentally ill.^[182] The Fifth Circuit found that the statute was unconstitutional as applied to Daniels.^[183] In reaching this conclusion, the court observed that:

Because historical gun regulations evince the kind of limits that were well-understood at the time the Second Amendment was ratified, a regulation that is inconsistent with those limits is inconsistent with the Second Amendment.

. . . Only by showing that the law does not tread on the historical scope of the right can the government “justify its regulation.”^[184]

The court began by rejecting the district court’s claim that the Second Amendment didn’t even apply to Daniels.^[185] It explained:

The right to bear arms is held by “the people.” That phrase “unambiguously refers to all members of the political community, not an unspecified subset.” Indeed, the Bill of Rights uses the phrase “the people” five times. In each place, it refers to all members of our political community, not a special group of upright citizens.

. . . .

. . . More than just “model citizen[s]” enjoy the right to bear arms.

. . . .

Once we conclude that Daniels has presumptive Second Amendment rights, the focus shifts to step two of the Bruen analysis: whether history and tradition support § 922(g)(3).^[186]

The court then concluded that the closest historical analogue to marijuana use was alcohol use.^[187] Noting that only a few laws touched on that, all of which were aimed at preventing the use of firearms while actually intoxicated, and none of which denied anyone, even habitual drunkards, the right to arms, the court concluded that as applied to Daniels, § 922(g)(3) was unconstitutional.^[188] “Despite the prevalence of alcohol and alcohol abuse, neither the government nor amici identify any restrictions at the Founding that approximate § 922(g)(3). Although a few states after the Civil War prohibited carrying weapons while under the influence, none barred gun possession by regular drinkers.”^[189]

The ban on arms possession, thus, is not categorical, but depends on circumstances, and on history and tradition in those particular circumstances.

Likewise, in Range v. Attorney General, an en banc panel of the Third Circuit held that a nearly thirty-year-old conviction for food stamp fraud that could have resulted in five years imprisonment, but for which the defendant received probation, could not constitutionally be the basis for a lifetime ban from possessing a firearm.^[190] In so doing, the panel explicitly rejected the argument that the defendant’s prior conviction removed him from “the people” entitled to Second Amendment rights.^[191]

First, the court noted that Heller’s references to “law-abiding, responsible citizens” were dicta because “the criminal histories of the plaintiffs in Heller, McDonald, and Bruen were not at issue in those cases.”^[192] Second, given the multiplicity of references to “the people” elsewhere in the Constitution, “to conclude that Range is not among ‘the people’ for Second Amendment purposes would exclude him from those rights as well,” unless “the meaning of the phrase ‘the people’ varies from provision to provision[, which the] Court in Heller suggested it does not.”^[193] Third, just because someone has Second Amendment rights does not mean that they might not be lawfully stripped of those rights.^[194] Finally, the panel noted that the phrase “‘law-abiding, responsible citizens’ is as expansive as it is vague.”^[195] The court expressed confidence “that the Supreme Court’s references to ‘law-abiding, responsible citizens’ do[es] not mean that every American who gets a traffic ticket is no longer among ‘the people’ protected by the Second Amendment.”^[196] The panel found the word “responsible” even less illuminating. “In our Republic of over 330 million people,” it wrote, “Americans have widely divergent ideas about what is required for one to be considered a ‘responsible’ citizen.”^[197]

Both Range and Daniels were before the Court on petitions for certiorari when Rahimi was decided. Both received the GVR (grant, vacate, remand) treatment after Rahimi and were returned to their respective circuits for further decision in light of that opinion.^[198] In Range, at least, on reargument before the Third Circuit, that court seemed sympathetic to Range’s arguments that his offense did not justify disarmament.^[199]

And, in fact, on remand the en banc Third Circuit stuck to its, er, guns, once again holding that a loss of firearm rights for a nonviolent felony like Range’s was a violation of the right to arms under the Second Amendment, the “safe harbor” language in Heller notwithstanding.^[200] Likewise the Fifth Circuit stuck to its position as well, holding that history and tradition did not support a loss of rights based on past use of marijuana.^[201]

If the Supreme Court hears these cases—and it should—it will be squarely confronted with the question of whether the “felony” safe harbor really means “felony,” or whether it means “crimes we don’t like.” It’s safe to say, as the Range and Daniels courts did, that there are no historical analogies to the loss of gun rights for making false statements on a food stamp application, or for past use of intoxicants.

Sooner or later these cases, or others like them, will come before the Court, and the Court will have to decide whether it wants to adopt a bright line approach, banning anyone convicted of a felony from possessing firearms, or whether it wants to adopt an approach that is more faithful to the history and tradition language of Bruen, as the appellate courts did in Daniels and Range. The bright line approach may seem more attractive, for being simpler, but it may not be as simple as it seems.

Indeed, if “felons” means just that, then the ban on domestic violence misdemeanants at issue in Rahimi shouldn’t have qualified. The existing federal statute bans firearms possession not only by felons, but also by certain classes of serious misdemeanants.^[202] But serious misdemeanants are not felons, and a bright line involving felons leaves them on the protected side of the Second Amendment equation.

On the other hand, if the “seriousness” of the crime is what matters, then many federal felonies—such as the ones in Range and Daniels—look questionable. As Michael Cottone has observed, numerous federal statutes and regulations make acts that are not intuitively criminal, and that do no particular harm to anyone, felonies. As Cottone notes, some of these statutes lack mens rea requirements, and impose strict liability.^[203] All of these regulatory crimes are, by definition, mere malum prohibitum and not malum in se. It will be difficult for the Court to argue, straight-facedly, that depriving people of the right to arms for violating such laws is consistent with the history and tradition of firearms regulation in this nation.

And, whether one takes the “bright line” approach or not—but probably especially if one does—the Court will be called to confront the question of whether, apart from the Second Amendment, the Due Process Clause might impose some limits on what sort of crimes may be designated felonies. Is there a threshold of seriousness below which it is a violation of due process to designate a felony?^[204]

That is a question beyond the scope of this short Article, except to the extent that Rahimi has opened the door to the consideration of such issues. And that extent is substantial.

VII. Conclusion

We made a few predictions in our post-Bruen article published after the Rahimi oral arguments. And on balance, they were fairly accurate. Specifically, we made the fairly obvious prediction that the Court would reverse the Fifth Circuit.^[205] It did. We likewise predicted the Court would express itself in multiple concurring opinions.^[206] Check. The opinion also trod, as we anticipated, a relatively narrow path, supporting the disarmament of “those who are ‘dangerous,’ either to themselves or others . . . as long as there is some historical basis for laws disarming similar groups.”^[207] We were uncertain how the Court would resolve the tension between the Heller safe harbor and Bruen’s history-and-tradition test.^[208] The answer appears to be that the Court has chosen to ignore the tension and simply fold in the exceptions. We now predict that will be a tempting escape hatch for judges who remain hostile to—or at least dubious of—the Court’s Second Amendment project.

Given the results in Range and Daniels and the continued necessity to relitigate a number of statutes after Bruen, it seems that the Court will continue to add to its Second Amendment canon. Compared to the interregnum between Heller and Bruen, moreover, it appears that the recent cohort of Trump appointed judges in the lower courts are heeding the Supreme Court’s signals sent in Bruen and rescuing the Second Amendment from what Justice Thomas claimed, pre-Bruen, was its relegation to second-class status.^[209]

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1. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2111 (2022).

2. District of Columbia v. Heller, 554 U.S. 570, 570 (2008).

3. Brannon P. Denning & Glenn H. Reynolds, Retconning Heller: Five Takes on New York State Rifle & Pistol Association, Inc. v. Bruen, 65 Wm. & Mary L. Rev. 79, 96–97 (2023) [hereinafter Retconning Heller] (explaining new standards). “Retcon” is shorthand for “retroactive continuity,” a term used mostly in the motion picture and comic book fields when a later episode of a series explains away or updates something that happened in an earlier episode. A famous early example involves Sir Arthur Conan Doyle’s rewriting of Sherlock Holmes’s death in a way that explained how, despite being seen plummeting over a cliff with Professor Moriarty, he did not in fact die. Id. at 95 n.83.

4. Brannon P. Denning & Glenn H. Reynolds, Trouble’s Bruen: The Lower Courts Respond, 108 Minn. L. Rev. 3187, 3195 (2024) [hereinafter Trouble’s Bruen].

5. See Retconning Heller, supra note 3, at 79; Glenn H. Reynolds & Brannon P. Denning, National Federation of Independent Business v. Sebelius: Five Takes, 40 Hastings Const. L.Q. 807, 807 (2013) [hereinafter Five Takes, Sebelius]; Glenn H. Reynolds & Brannon P. Denning, What Hath Raich Wrought? Five Takes, 9 Lewis & Clark L. Rev. 915, 915 (2005); Brannon P. Denning & Glenn H. Reynolds, Five Takes on District of Columbia v. Heller, 69 Ohio St. L.J. 671, 671 (2008); Brannon P. Denning & Glenn H. Reynolds, Five Takes on McDonald v. Chicago, 26 J.L. & Pol. 273, 273 (2011).

6. United States v. Rahimi, 61 F.4th 443, 448–49 (5th Cir. 2023) (noting Rahimi’s alleged criminal behavior), rev’d, 144 S. Ct. 1889 (2024).

7. United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting).

8. Rahimi, 61 F.4th at 448–49, 461 (protecting Rahimi’s Second Amendment rights, despite the fact that Rahimi was involved in five shootings, selling narcotics, and allegedly assaulting his ex-girlfriend).

9. Id. at 448–49.

10. Id. at 448.

11. Id. at 448–49. We told you; he’s not a nice man.

12. Id. at 449.

13. Id. at 449–50.

14. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2129–30 (2022).

15. U.S. Const. amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” (emphasis added)); Rahimi, 61 F.4th at 451 (quoting District of Columbia v. Heller, 554 U.S. 570, 635 (2008)).

16. Rahimi, 61 F.4th at 452 (“Heller’s reference to ‘law-abiding, responsible’ citizens meant to exclude from the Court’s discussion groups that have historically been stripped of their Second Amendment rights, i.e., groups whose disarmament the Founders ‘presumptively’ tolerated or would have tolerated. Bruen’s reference to ‘ordinary, law-abiding’ citizens is no different.” (citation omitted)). For a discussion of the Heller safe harbor, see infra note 65 and accompanying text.

17. Rahimi, 61 F.4th at 452.

18. Id.

19. Id.

20. Id. at 452–53.

21. Id. at 453.

22. Id.

23. Id.

24. Id. at 453–54 (noting the government’s burden is to identify a “historical analogue,” not necessarily a “historical twin” (quoting N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022))). The court completed the rest of step one concluding that the rifle and pistol were indeed “arms” in common use and that they and his keeping of them fell within the plain text of the Second Amendment. Id. at 454.

25. Id. at 454–55 (footnote omitted).

26. Id. at 455.

27. Id. at 456.

28. Trouble’s Bruen, supra note 4, at 3213–15 (reviewing the historical analogues used by the government and which are accepted by the courts when discussing Bruen step two).

29. Rahimi, F.4th at 456–57, 459–61.

30. United States v. Rahimi, 144 S. Ct. 1889, 1903 (2024).

31. Id. at 1897. It didn’t take long for someone—in this case Josh Blackman—to make the obvious Jurassic Park reference. See Josh Blackman, Is “Law Trapped in Amber?”: Lesson for Chief Justice Roberts from Jurassic Park, Volokh Conspiracy (June 25, 2024, at 13:14 CT), https://reason.com/volokh/2024/06/25/is-law-trapped-in-amber/ [https://perma.cc/7V6T-7XNJ] (“In a way, what Chief Justice Roberts did in Rahimi is akin to what the scientists did in Jurassic Park. He extracted an incomplete historical record from long ago, merged it with some modern-day know-how to fill the gaps, and created some new creation that people want to see. Mosquitos are not trapped in amber anymore than surety laws are stuck in amber. What the Court did here is not originalism. It is recreationism. We’re left with the Second Amendment merged with some frog DNA.”). We will discuss this take later on.

32. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2121 (2022).

33. Rahimi, 144 S. Ct. at 1894.

34. Id. at 1900–01.

35. Id. at 1896–97, 1902–03.

36. Seriously, he’s just not a very nice man at all.

37. Trouble’s Bruen, supra note 4, at 3189, 3223–24.

38. Rahimi, 144 S. Ct. at 1903 n.2.

39. See id. at 1930–47 (Thomas, J., dissenting).

40. See Gonzales v. Raich, 545 U.S. 1, 23 (2005).

41. United States v. Lopez, 514 U.S. 549, 549 (1995).

42. Id. at 551–52.

43. Id. at 558–59.

44. Id. at 551, 559, 567, 661.

45. Lainine Rutkow & Jon S. Vernick, The U.S. Constitution’s Commerce Clause, the Supreme Court, and Public Health, 126 Pub. Health Reps. 750, 751 (2011).

46. United States v. Morrison, 529 U.S. 598, 613 (2000).

47. Glenn H. Reynolds & Brannon P. Denning, Lower Court Readings of Lopez, or What if the Supreme Court Held a Constitutional Revolution and Nobody Came?, 2000 Wis. L. Rev. 369 passim.

48. In the years since, enthusiasm for enforcement of federal and state marijuana laws has plummeted, to the point where such laws face real prospects of desuetude. See Joanna R. Lampe, Lisa N. Sacco & Hassan Z. Sheikh, Cong. Rsch. Serv., IF12270, The Federal Status of Marijuana and the Policy Gap with States (2024). To borrow a phrase from Bernard Schwartz, who himself borrowed it from Justice Johnson, these laws seem to have “dropped lifeless from the statute books.” Bernard Schwartz, A History of the Supreme Court 81 (1993) (describing state regulations of interstate and foreign commerce after ratification of the Constitution); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 226 (1824) (Johnson, J., dissenting).

49. Glenn H. Reynolds & Brannon P. Denning, Heller’s Future in the Lower Courts, 102 Nw. U. L. Rev. 2035, 2038 (2008) (emphasis added).

50. While some decisions were no doubt sincere, several from the Ninth Circuit seem aimed at forcing the Court to retreat or reverse the convictions of some unsavory characters. See Brannon P. Denning, Can Judges Be Uncivilly Obedient?, 60 Wm. & Mary L. Rev. 1, 15–16, 19, 21–22, 33 (2018).

51. Reynolds & Denning, supra note 49, at 2039.

52. Gonzales v. Raich, 545 U.S. 1, 36–37, 40 (2005) (Scalia, J., concurring).

53. Id. at 40–41.

54. United States v. Rahimi, 144 S. Ct. 1889, 1941 (2024) (Thomas, J., dissenting).

55. Id. at 1930–32.

56. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 519 (2012).

57. See, e.g., Ezra Klein, Of Course the Supreme Court Is Political, Wash. Post (June 21, 2012), https://www.washingtonpost.com/news/wonk/wp/2012/06/21/of-course-the-supreme-court-is-political/ [https://perma.cc/94QS-BYCK] (quoting Yale law professor Akhil Amar saying that “[i]f they decide this by 5–4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t.”).

58. Five Takes, Sebelius, supra note 5, at 822 & n.91.

59. Id. (footnotes omitted). See also Jan Crawford, Roberts Switched Views to Uphold Health Care Law, CBS News (July 2, 2012, at 21:43 ET) https://www.cbsnews.com/news/roberts-switched-views-to-uphold-health-care-law/ [https://perma.cc/CKJ8-24F9] (explaining that Chief Justice Roberts had initially sided with the four conservatives to strike down the Affordable Care Act but later changed his position to side with the four liberals to uphold the bulk of the law); Ilya Shapiro, Chief Justice Roberts Sold Out the Constitution for Less Than Wales, CATO Inst. (July 2, 2012, 14:19 CT) https://www.cato.org/blog/chief-justice-roberts-sold-out-constitution-less-wales [https://perma.cc/FD6B-DV7J] (noting that John Roberts changed his vote on Obamacare, giving into political considerations).

60. David Lat, The Roberts Court Is Roberts’s Court, Original Jurisdiction (July 9, 2024), https://davidlat.substack.com/p/supreme-court-scotus-chief-justice-john-roberts [https://perma.cc/3ACW-R6UN].

61. Fiat Justitia, Art & Popular Culture, https://www.artandpopularculture.com/Fiat_justitia [https://perma.cc/57FC-RTM5] (last visited Sep. 17, 2025) (defining Fiat justitia as “let justice be done”); A Grammatical Dictionary of Botanical Latin, Mo. Botanical Garden, https://www.mobot.org/mobot/latindict/keyDetail.aspx?keyWord=too [https://perma.cc/RM43-LJ7R] (last visited Sep. 17, 2025) (defining nimis as “too much”).

62. Linda Greenhouse, The Supreme Court Steps Back from the Edge, N.Y. Times (June 26, 2024) (emphasis added), https://www.nytimes.com/2024/06/26/opinion/guns-supreme-court.html [https://perma.cc/85HG-EN5M].

63. Id.

64. At least in this case. Chief Justice Roberts’s loose application of Justice Thomas’s maximalist Bruen opinion might furnish an answer to the question that puzzled us in an earlier article, namely, why the Chief Justice assigned Justice Thomas to write the opinion in the first place. Retconning Heller, supra note 3, at 84. As Rahimi demonstrates, the language in Bruen can bear a strict approach or a looser one in cases like Rahimi. We thank Bob Cottrol for that observation.

65. Brannon P. Denning & Glenn H. Reynolds, Heller, High Water(mark)? Lower Courts and the New Right to Keep and Bear Arms, 60 Hastings L.J. 1245, 1248 (2009).

66. Id. at 1247.

67. Retconning Heller, supra note 3, at 109. See also Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1376 (2009) (noting that felon disarmament laws significantly postdate both the Second and Fourteenth Amendment); Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1357 (2009) (noting that the first general ban on firearm possession for felons was enacted in 1968, which was 177 years after the adoption of the Second Amendment).

68. Trouble’s Bruen, supra note 4, at 3204.

69. United States v. Rahimi, 144 S. Ct. 1889, 1902 (2024) (emphasis added).

70. Id. at 1923 (Kavanaugh, J., concurring) (citations omitted).

71. Id. at 1944–45, 1944 n.7 (Thomas, J., dissenting) (citation omitted).

72. Id. at 1947.

73. Id.

74. Brannon P. Denning, Anti-Evasion Doctrines and the Second Amendment, 81 Tenn. L. Rev. 551, 558–59 (2014) (citing examples of attempted evasion of Heller).

75. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2258–59 (2022).

76. Vidal v. Elster, 144 S. Ct. 1507, 1522 (2024).

77. Am. Legion v. Am. Humanist Ass’n, 588 U.S. 29, 63 (2019).

78. For an account of its emergence, see generally Richard H. Fallon, Jr., The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny (2019), tracing the historical emergence of strict scrutiny in the mid-twentieth century as a response to shifting judicial philosophies and the decline of Lochner-era reasoning.

79. Glenn Harlan Reynolds, Sex, Lies and Jurisprudence: Robert Bork, Griswold and the Philosophy of Original Understanding, 24 Ga. L. Rev. 1045, 1095 (1990).

80. United States v. Rahimi, 144 S. Ct. 1889, 1897 (2024).

81. Id. at 1898.

82. Id.

83. Id.

84. Id.; Retconning Heller, supra note 3, at 87 (discussing Justice Thomas’s use of “how and why the regulations burden a law-abiding citizen’s right to armed self-defense”).

85. Rahimi, 144 S. Ct. at 1898, 1901–02.

86. Id. at 1901.

87. Retconning Heller, supra note 3, at 105–06. For a critique of this aspect of Bruen, see Darrell A. H. Miller & Joseph Blocher, Manufacturing Outliers, 2022 Sup. Ct. Rev. 49, 64.

88. Rahimi, 144 S. Ct. at 1907 (Gorsuch, J., concurring).

89. Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 634–35 (2008)).

90. Id. at 1908.

91. Id.

92. Id. (citing Crawford v. Washington, 541 U.S. 36, 54 (2004)).

93. Id. (quoting 18 U.S.C. § 922(g)(8)(C)(i)).

94. Id. at 1909.

95. Id.

96. Id. (quoting Duncan v. Bonta, 19 F.4th 1087, 1148 (9th Cir. 2021) (en banc) (Bumatay, J., dissenting)).

97. Id.

98. Of course, if the text is clear—and, he writes “[i]n many important provisions, the Constitution is a document of majestic specificity with ‘strikingly clean prose’”—a judge’s inquiry is at an end. Id. at 1910–13 (Kavanaugh, J., concurring).

99. This concession is in some tension with his previous point that if the Constitution’s “strikingly clean prose” is clear on a matter, then a judge has no business resorting to collateral interpretive aids. Id. at 1911.

100. Id. at 1912.

101. Id.

102. Id.

103. Id.; Chief Justice Roberts Statement – Nomination Process, U.S. Cts., https://www.uscourts.gov/about-federal-courts/educational-resources/supreme-court-landmarks/nomination-process/chief-justice-roberts-statement-nomination-process [https://perma.cc/8ZCX-FRQV] (last visited Sep. 18, 2025).

104. Rahimi, 144 S. Ct. at 1913–14 (Kavanaugh, J., concurring).

105. Id. at 1914.

106. Id. at 1915 (quoting Bridges v. California, 314 U.S. 252, 265 (1941)).

107. Id. at 1916.

108. Id. at 1916–17. Scholars have begun examining this process more systematically of late. For a sampling of the literature, see, for example, William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 6 (2019); Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Madisonian Liquidation, and the Originalism Debate, 106 Va. L. Rev. 1, 16 (2020); Curtis A. Bradley, Doing Gloss, 84 U. Chi. L. Rev. 59, 69–70 (2017); Curtis A. Bradley & Neil S. Siegel, Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers, 105 Geo. L.J. 255, 261 (2017); Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 417–19 (2012).

109. Rahimi, 144 S. Ct. at 1918 (Kavanaugh, J., concurring).

110. Id. at 1920.

111. Id. (“Courts must respect precedent, while at the same time recognizing that precedent on occasion may appropriately be overturned.”).

112. Id.

113. See infra Part V.

114. Rahimi, 144 S. Ct. at 1924 (Barrett, J., concurring).

115. Id.

116. Id.

117. Id. at 1925.

118. Id. at 1925–26.

119. Id. at 1926.

120. Id. at 1930, 1939 (Thomas, J., dissenting).

121. Id. at 1942.

122. Id.

123. Id. at 1944 (citations omitted).

124. Id. at 1947.

125. Reynolds, supra note 79, at 1050, 1081.

126. See Robert H. Bork, The Tempting of America: The Political Seduction of the Law 143 (1990).

127. Reynolds, supra note 79, at 1081.

128. Griswold v. Connecticut, 381 U.S. 479, 479 (1965).

129. Reynolds, supra note 79, at 1082–83.

130. Id. at 1082–83, 1085. Story wrote, in the abridged version of his Commentaries on the Constitution:

     Whether, indeed, independently of the constitution of the United States, the nature of republican and free governments does not necessarily impose some restraints upon the legislative power, has been much discussed. It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. A government can scarcely deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty, and private property should be held sacred. At least, no court of justice, in this country, would be warranted in assuming, that any state legislature possessed a power to violate and disregard them; or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people, in the usual forms of the constitutional delegation of power. The people ought not to be presumed to part with rights, so vital to their security and well-being, without very strong, and positive declarations to that effect.

     Joseph Story, Commentaries on the Constitution of the United States § 712, at 510–11 (1833) (Ronald D. Rotunda & John E. Nowak eds., 1987). For Bork’s approval of Story both as an exemplary expositor and applicant of originalism, see Bork, supra note 126, at 5–6, 134, 154, 165, 289, 318.

131. Reynolds, supra note 79, at 1083.

132. Id. at 1086.

133. Id. at 1086–91.

134. Id. at 1091; U.S. Const. amend. V.

135. Reynolds, supra note 79, at 1093.

136. Id.

137. Id. at 1049–50, 1052, 1095, 1104. This concern was not new with Bork. His friend and colleague Alexander Bickel first explored this problem in his seminal work. See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16–17 (1962).

138. Reynolds, supra note 79, at 1103–04. He wrote:

     In examining Bork’s arguments, I have come to two conclusions. The first is that theory is of dubious value in constraining results. I believe that I have adequately demonstrated this point by showing two rather crucial instances in which Robert Bork and I have come to starkly different conclusions on the same questions, despite employing the jurisprudence of original understanding and relying on the same sources. One may accuse either (or both) of us of dishonesty or incompetence, but that does not undermine the conclusion, for if a theory cannot stop an unscrupulous or tricky judge—much less one who is simply confused—from reaching the result she wants, it is of little use in protecting democratic values. We do not really need theory to constrain the good judges.

     And that, of course, is the second conclusion. There is no escaping the Madisonian dilemma . . . .

     Id. (footnote omitted).

139. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). Famously, footnote four announced the Court’s intention to presume constitutionality of federal and state economic and social legislation, relaxing that presumption only when provisions of the Bill of Rights were implicated or when racial or ethnic minorities were discriminated against, or when the political process was rigged to the disadvantage of those groups rendering political safeguards less effective for repealing harmful or unpopular laws. Id. For an account of the case itself as well as the origins of footnote four, see Mark V. Tushnet, History of the Supreme Court of the United States: XI The Hughes Court: From Progressivism to Pluralism, 1930–1941, 408–16 (2021).

140. Richard H. Fallon, Jr., Implementing the Constitution 5 (2001).

141. See, e.g., Mitchell N. Berman, Constitutional Decision Rules, 90 Va. L. Rev. 1, 57–58 (2004) (“Call the courts’ determination of constitutional meaning a ‘constitutional operative proposition,’ and call the judicial direction regarding how courts are to decide whether an operative proposition has been complied with a ‘constitutional decision rule.’”). On the necessity of intermediating rules to decide cases, see Kermit Roosevelt III, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions 19–20 (2006).

142. For a taxonomy, see Fallon, supra note 140, at 77–79.

143. For classic works examining the Court during what in retrospect was probably the high tide of doctrinalism on the Court, see, for example, T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 963–72 (1987); Kathleen M. Sullivan, The Supreme Court, 1991 Term—Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 22, 57–61 (1992). For a critique of that era, see Robert F. Nagel, The Formulaic Constitution, 84 Mich. L. Rev. 165, 182 (1985).

144. Transcript of Oral Argument at 44, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290); Whole Woman’s Health v. Hellerstedt, 579 U.S. 582, 629–35 (2016) (Thomas, J., dissenting).

145. United States v. Rahimi, 144 S. Ct. 1889, 1920 (2024) (Kavanaugh, J., concurring).

146. See supra notes 98–112 and accompanying text.

147. Rahimi, 144 S. Ct. at 1920 (Kavanaugh, J., concurring).

148. We assume that he would lump the use of all intermediating decision rules under his umbrella term “policy.”

149. Rahimi, 144 S. Ct. at 1910, 1921 (Kavanaugh, J., concurring).

150. See supra notes 98–112 and accompanying text.

151. See Rahimi, 144 S. Ct. at 1921 (Kavanaugh, J., concurring) (“The Court ‘appears to have adopted’ heightened-scrutiny tests ‘by accident’ in the 1950s and 1960s in a series of Communist speech cases, ‘rather than as the result of a considered judgment.’” (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 125 (1991) (Kennedy, J., concurring)).

152. Id.

153. Id. (quoting Marbury v. Madison, 5 U.S. 137 (1803)).

154. Id. at 1922.

155. Id. (first quoting McDonald v. City of Chicago, 561 U.S. 742, 803–04 (2010); then quoting Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989)).

156. Id. at 1922–23.

157. Id. at 1923.

158. Id. He wrote:

     Although Heller declined to “undertake an exhaustive historical analysis,” it recognized a few categories of traditional exceptions to the right. For example, 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.

     Id. at 1923 (citation omitted) (quoting District of Columbia v. Heller, 554 U.S. 570, 626–27).

159. Nat’l Pork Producers Council v. Ross, 143 S. Ct. 1142, 1172, 1174 n.3 (2023) (Kavanaugh, J., concurring in part and dissenting in part).

160. Id. at 1150 (majority opinion); id. at 1167, 1172 (Roberts, C.J., concurring in part and dissenting in part).

161. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (“Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”).

162. S. Pac. Co. v. Arizona, 325 U.S. 761, 788 (1945) (Black, J., dissenting) (“If under today’s ruling a court does make findings, as to a danger contrary to the findings of the legislature, and the evidence heard ‘lends support’ to those findings, a court can then invalidate the law. In this respect, the Arizona County Court acted, and this Court today is acting, as a ‘super-legislature.’”).

163. Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring).

164. United States v. Rahimi, 144 S. Ct. 1889, 1912 (2024) (“History, not policy, is the proper guide.”).

165. See supra text accompanying note 154; Rahimi, 144 S. Ct. at 1921–22.

166. Berman, supra note 141, at 10–11, 10 n.35.

167. Bork, supra note 126, at 167–68.

168. M’Culloch v. Maryland, 17 U.S. 316, 421 (1819) (“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”).

169. See supra text accompanying note 151; Rahimi, 144 S. Ct. at 1921 (Kavanaugh, J., concurring).

170. For a catalogue of doctrinal tests ranging in different areas of constitutional law, see Fallon, supra note 140, at 77–79.

171. See Joseph Blocher & Brandon L. Garrett, Originalism and Historical Fact-Finding, 112 Geo. L.J. 699, 708–10, 712 (2024). Describing and critiquing this approach is beyond the scope of this Article, but we would argue that, as the post-Bruen state of affairs suggests, abandoning decision rules wholesale as a mode of implementing constitutional meaning would be a serious mistake with myriad unforeseen effects.

172. Denning & Reynolds, supra note 65, at 1247–48.

173. District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008).

174. See generally Neil Gorsuch & Janie Nitze, Over Ruled: The Human Toll of Too Much Law (2024) (discussing the growing volume and complexity of law and its effect on ordinary Americans); Harvey A. Silverglate, Three Felonies a Day: How the Feds Target the Innocent (2009) (discussing the rise of overcriminalization).

175. Dru Stevenson, In Defenses of Felon-in-Possession Laws, 43 Cardozo L. Rev. 1573, 1587 (2022); People v. Manson, 132 Cal. Rptr. 265, 274 (1976).

176. United States v. Daniels, 77 F.4th 337, 337 (5th Cir. 2023).

177. Id. at 339.

178. See id.

179. Id. at 340–41 (quoting 18 U.S.C. § 922(g)(3)).

180. Id. at 339.

181. Id. at 340 (quoting United States v. Daniels, 610 F. Supp. 3d 892, 894 (S.D. Miss. 2022)).

182. Id.

183. Id. at 357. Because of the court’s finding that the statute was unconstitutional as applied to Daniels, the Fifth Circuit did not rule on his claim that § 922(g)(3) was unconstitutionally vague. Id. at 341 n.1.

184. Id. at 341 (quoting N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2130 (2022)).

185. Id. at 342 (“We begin with the threshold question: whether the Second Amendment even applies to Daniels.”).

186. Id. at 342–43 (alteration in original) (citations omitted) (first quoting District of Columbia v. Heller, 554 U.S. 570, 580 (2008); then quoting United States v. Rahimi, 61 F.4th 443, 453 (5th Cir. 2023)).

187. Id. at 344–45 (“Because there was little regulation of drugs (related to guns or otherwise) until the late-19th century, intoxication via alcohol is the next-closest comparator.” (footnote omitted)).

188. Id. at 345–48 (describing the historical laws that dealt with intoxication and concluding that the history and tradition does not support the application of § 922(g)(3) to Daniels for a mere pattern of drug use).

189. Id. at 345.

190. Range v. Att’y Gen., 69 F.4th 96, 98, 106 (3d Cir. 2023) (holding that, despite Range’s conviction based on his false statements made to obtain food stamps, he was nevertheless protected by the Second Amendment).

191. Id. at 106.

192. Id. at 101.

193. Id. at 102.

194. Id. (agreeing with other courts’ reasoning that the people have the right to arms and the legislature may constitutionally remove that right for certain groups of people).

195. Id.

196. Id.

197. Id.

198. United States v. Daniels, 144 S. Ct. 2707, 2707 (2024) (granting certiorari, vacating judgment in light of Rahimi); Garland v. Range, 144 S. Ct. 2706, 2706–07 (2024) (same).

199. See Jackson Healy, Third Circuit Warms to Gun Ownership by Nonviolent Felons, Courthouse News Serv. (Oct. 9, 2024), https://www.courthousenews.com/third-circuit-warms-to-gun-ownership-by-nonviolent-felons/ [https://perma.cc/WD4M-XVSR].

200. Range v. Att’y Gen., 124 F.4th 218, 229, 232 (3d Cir. 2024) (en banc).

201. United States v. Daniels, 124 F.4th 967, 978–79 (5th Cir. 2025).

202. 18 U.S.C. § 922(g)(9).

203. Michael Cottone, Rethinking Presumed Knowledge of the Law in the Regulatory Age, 82 Tenn. L. Rev. 137, 140–143 (2014). See generally Silverglate, supra note 174 (discussing the proliferation of felonies and federal crimes due to expanded regulations).

204. Cf. Glenn Harlan Reynolds, Ham Sandwich Nation: Due Process When Everything Is a Crime, 113 Colum. L. Rev. Sidebar 102, 107–08 (2013) (discussing due process concerns of imposing criminal sanctions for violations of malum prohibitum regulatory laws).

205. Trouble’s Bruen, supra note 4, at 3223.

206. Id.

207. Id.

208. Id.

209. See Rebecca L. Brown, Lee Epstein & Mitu Gulati, Guns, Judges, and Trump, 74 Duke L.J. Online 81, 102–04 (2025) (finding that Trump-appointed judges were more likely to find for gun rights claimants than even other non-Trump-appointed Republican judges).