Of Bruen, the Second Amendment, and Constitutional Insanity

 By Eric Segall

Last week, I wrote an essay explaining why New York State Rifle & Pistol Ass'n v. Bruendecided last June by the United States Supreme Court, is one of the most radical, anti-originalist, ahistorical, and tragic decisions of my lifetime. Bruen directs judges to perform a text, history and tradition only analysis to Second Amendment cases without any judicial balancing of the government's interest in the challenged law against the importance of the asserted right to "keep and bear arms." As I wrote here, this rejection of judicial balancing of rights against the public good would have been universally rejected by the ratifiers of both the Second and Fourteenth Amendments and the public during both time periods. Bruen is an anti-originalist opinion written by the Court's staunchest originalist Justice- Clarence Thomas. Oh, the irony.

This Friday I head to New Orleans for a symposium on judicial review and democracy where I will argue that Bruen wrongfully elevates judicial review above democracy in dangerous and maybe even fatal ways. In this blog post, I use a recent Fifth Circuit Second Amendment case and its majority and concurring opinions to illustrate many of these problems. Bruen is quite simply a national nightmare.

In United States v. Rahimi, the plaintiff challenged a federal law requiring people subject to domestic relations civil protective orders to give up their guns. Prior to Bruen, the Fifth Circuit had upheld the law because it minimized "the threat of lawless violence" according to the Rahimi court. But the panel then reversed course under Bruen's texthistory and tradition only approach. Here is how the court described the plaintiff's relevant behavior:

Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas.1 On December 1, after selling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver’s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7, Rahimi fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.

In addition to all this alleged misbehavior, Rahimi had allegedly threatened to assault his girlfriend who on February 5, 2020, secured a protective order prohibiting Rahimi from going within 200 yards of her or her family and requiring him to give up his guns under the relevant federal law. The issue in the case was whether that federal law unconstitutionally disarmed the plaintiff.

The panel opinion dutifully applied Bruen's text, history, and tradition approach. The panel first decided that at the time of the protective order, Rahimi was not a convicted felon and was therefore part of the "people" protected by the Second Amendment. Much could be said about this part of the opinion but that's a discussion for another post.

After finding Rahimi was entitled to the protections of the Second Amendment, the panel opinion then canvassed history from 1662 to the Founding and decided that there were not similar enough analogues to the modern federal law to uphold it. This history includes the following paragraphs:

Under the English Militia Act of 1662, officers of the Crown could 'seize all arms in the custody or possession of any person' whom they 'judge[d] dangerous to the Peace of the Kingdom....'

But the Militia Act’s provenance demonstrates that it is not a forerunner of our Nation’s historical tradition of firearm regulation. Under Charles I (who reigned 1625–1649), the Crown and Parliament contested for control of the militia. After the resulting civil war and Oliver Cromwell’s interregnum, the monarchy was restored in 1660 when Charles II took the throne. Charles II began using the militia to disarm his political opponents. The Militia Act of 1662 facilitated this disarmament, which escalated under the Catholic James II once he took the throne in 1685. After the Glorious Revolution, which enthroned Protestants William and Mary ... the 1689 English Bill of Rights qualified the Militia Act by guaranteeing '[t]hat the subjects which are Protestants may have arms for their defence suitable to their Conditions and as allowed by Law.'  This right, which restricted the Militia Act’s reach in order to prevent the kind of politically motivated disarmaments pursued by Charles II and James II, has long been understood to be the predecessor to our Second Amendment. This understanding, and the history behind it, defeats any utility of the Militia Act of 1662 as a historical analogue for [the federal law at issue].

What are we doing? Do we really trust the Fifth Circuit or any panel of judges to understand English history well enough to decide how similar ancient laws were to the ones we have today? This kind of law office history should not be the stuff of serious constitutional analysis of gun laws designed for our own times. 

The panel also canvassed and discussed laws from the 18th century disarming various people thought to be dangerous or disloyal, eventually concluding that the government had failed to meet its burden of proof demonstrating similar laws existed centuries ago.  A different panel of judges could easily have upheld the federal law under this approach by simply arguing that the laws cited by the government were similar enough. After all, with centuries of history to manipulate, judges can reach virtually any result they favor.

At the end of the panel opinion, the judges said the following:

Doubtless, [the federal law] embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of [the law] outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that [the law's] ban on possession of firearms is an outlier that our ancestors would never have accepted. Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated. 

Again, what are we doing? A law that serves valuable "policy goals" today is unconstitutional because "our ancestors" would have rejected it? Our ancestors being white, propertied males who had the right to rape their wives and who did not think domestic violence was a problem?

The Bruen analysis subjugates today's voters and today's democracy to the values of people who lived centuries ago in a world completely different from our own, especially when it comes to the most vulnerable around us. It is one thing to say that in a constitutional republic sometimes judicially enforceable rights must trump policy goals our elected officials want to further. The point of a written Constitution is to limit some of what the government can do. But that analysis should be informed by today's values and realities, not those of ancient times. The exclusive focus on laws enacted or not enacted centuries ago is simply too much for a modern democracy to bear.

Judge Ho wrote a concurring opinion that demonstrates a different problem with the Bruen text, history, and tradition only approach: judges will balance policy goals either implicitly or explicitly despite Bruen's directive not to do so. The panel smuggled in their policy views through their narrow interpretations of ancient gun laws. As discussed below, Judge Ho, as usual for this right-wing ideologue, took a different path.

At the beginning of his concurrence, Judge Ho wrote about how Second Amendment rights are as important as any other and how lower courts previously failed to recognize that equivalence, requiring the Supreme Court to issue the strongly worded Bruen opinion. Of course, Second Amendment rights are not like other constitutional rights, given the ability of those exercising said rights to engage in deadly behavior, crime, and mass shootings. Nevertheless, starting from that premise, Judge Ho agreed with the majority's analysis of centuries of English and American history. But at the end of his opinion, Judge Ho gives the game away with a bizarre discussion of how the federal law is actually bad policy. He states that "scholars and judges have expressed alarm that civil protective orders are too often misused as a tactical device in divorce proceedings—and issued without any actual threat of danger. That makes it difficult to justify [the law] as a measure to disarm dangerous individuals." 

Again, what are we doing? In the beginning of his opinion, Judge Ho recognized that Bruen prohibits policy analysis and means-end scrutiny. So why is Judge Ho pontificating on the justifications for the law at issue? He then spends pages discussing how civil protective orders are abused by parties to both sides of divorce proceedings and often leave potential victims of domestic violence unarmed and defenseless. He wrote the following:

Family court judges may face enormous pressure to grant civil protective orders—and no incentive to deny them. For example, family court judges may receive mandatory training in which they’re warned about the unfavorable publicity that could result if they deny requests for civil protective orders.  As one judge has noted, '[a] newspaper headline can be death to a municipal court judge’s career.' So 'the prospect of an unfavorable newspaper headline is a frightening one.' To quote another judge: 'Your job is not to become concerned about all the constitutional rights of the [defendant] you’re violating as you grant a restraining order. Throw him out on the street, give him the clothes on his back and tell him, ‘See ya’ around.’ Yet another judge said: 'If there is any doubt in your mind about what to do, you should issue the restraining order.”' As a result, '[r]estraining orders . . . are granted to virtually all who apply.'

So what? Even if this analysis were accurate, which is highly dubious given how serious a problem domestic abuse is in this country, is it Judge Ho's job to second guess the relative costs and benefits of disarming people subject to domestic violence civil protective orders? In a world of normal judicial review, the answer would be yes, though hopefully with Judge Ho showing sufficient deference to lawmakers (not a chance of course). But Bruen makes this entire discussion inappropriate. Or does it? Only time will tell.

As Professor Jacob Charles has recently written, since last June, lower courts "have received Bruen’s message to supercharge the Second Amendment, but not its (as yet undiscovered) Rosetta Stone. Their collective decisions in the months since the ruling have been scattered, unpredictable, and often internally inconsistent. More than 100 lower federal court decisions have already assessed whether new and settled regulations survive Bruen.”

The reality is that Bruen's history and tradition only approach is unworkable because judges and lawyers aren't historians, the approach will enable judges less ambitious than Judge Ho to smuggle in their policy judgments sub silento, leading to a great loss of transparency, and, most importantly, requires lower court judges to focus on the wrong questions and ignore the right ones. 

The people today and the folks they elect are allowed to pass gun control laws unless the Constitution prohibits them from doing so. But the balance between gun rights and public safety is a modern problem requiring contemporary solutions. Of course the founding fathers didn't think domestic abusers should be disarmed because they didn't believe husbands beating their wives was a problem. But according to both the panel opinion and Judge Ho's concurring opinion they did think some groups of dangerous people could be disarmed. Why isn't it enough to find that there was a general rule allowing the government to take away arms from those they considered dangerous, that rule applies today, and now we know domestic abuse is wrong and much too prevalent? A different panel of judges might reach exactly that conclusion. 

Bruen changes how constitutional law has been conducted for centuries by eliminating (in theory) means-end scrutiny, requires judges to perform tasks they are not competent to perform, and subjugates today's politics and judicial decisions to the values of people living centuries ago on an issue involving great societal and technological changes. In short, Bruen is constitutional insanity.