For Rahimi: Two Cheers (the Result and the Methodology) and a Few Jeers

One would need to be especially cynical to read today's SCOTUS opinion in United States v. Rahimi as anything other than good news overall. The American gun-rights movement has organized itself around the notion that it takes a good guy with a gun to stop a bad guy with a gun (and yes, for that crowd, it's almost always a guy). Yet, as Chief Justice Roberts lays out in detail in his nearly unanimous opinion for the Court, Rahimi is a decidedly bad guy. He bashed his then-girlfriend's head against a car dashboard; he then got his gun and fired at her as she fled (or possibly at a witness); he violated an ensuing domestic violence protective order by menacing the ex-girlfriend; he was charged with aggravated assault against another woman; and the police suspected him in at least five shootings.

If Rahimi had been found to have a Second Amendment right to go about armed, it is hard to see how anybody would not. Only Justice Thomas dissented. The result of the case is thus worth cheering. Equally heartening was the Court's methodology.

Just two years ago, in NYS Rifle & Pistol v. Bruen, the Court invalidated New York's law restricting public carrying of firearms on the ground that the law did not fit squarely within the "Nation's historical tradition of firearms regulation." The Court so ruled even though a version of the New York statute had been in force since 1905--less than four decades after the adoption of the Fourteenth Amendment, which was the basis for even applying the Second Amendment to a state law. It so ruled despite the fact that whether a contemporary law is sufficiently closely analogous to a Founding-era (or perhaps a Reconstruction-era) law is in substantial measure a normative question, not, as Justice Thomas, the author of Bruen, seemed to think, a historical one. And Bruen's history-and-tradition-only approach was mostly novel, despite Justice Thomas's unpersuasive claim that the Court has followed the same approach in free speech cases.

Despite the flimsy justification for the history-and-tradition-only approach of Bruen, the case appeared to herald a trend. The day after it decided Bruen, the Court handed down its decision in Dobbs v. Jackson Women's Health Org., which also applied a history-and-tradition test, this time to eliminate the constitutional right to abortion. Three days later, in Kennedy v. Bremerton, the Court adopted a history-and-tradition-only test for the Establishment Clause, ruling for a high school football coach asserting a religious right to engage in public prayer at the conclusion of games.

That trio of 2022 bombshells written by the Roberts Court's three horsemen--Justices Thomas, Alito, and Gorsuch, respectively--underscores the heads-I-win-tails-you-lose quality of their jurisprudence. In Dobbs, where the plaintiffs asserted a right to abortion (disliked by the conservative super-majority), they bore the burden of marshaling history to their side. In Bruen and Kennedy, where the plaintiffs asserted rights, respectively, to carry guns and pray in public (both favored by the conservative super-majority), the state bore the burden. The history-and-tradition tests are sufficiently manipulable that this Court could likely reach any result it favored regardless of who bore the burden of persuasion, but the allocation of the burden in a way that just happens to favor the conservative outcome in each case is telling.

Thus it was undoubtedly good news that in Rahimi the Court backed away from the most aggressive version of the Bruen test. CJ Roberts even picked up on a point that critics of Bruen had voiced: it would be anomalous to say that the right to keep and bear arms evolves to encompass not just flintlocks and muskets but also much more powerful and accurate modern weapons without also allowing that the scope of government regulation can likewise evolve. The Court reined in Bruen's history-and-tradition test by allowing the government to point to Founding-era (or possibly Reconstruction-era) laws restricting firearms that served the same function, described at a high enough level of generality to avoid what the Chief Justice called a body of Second Amendment "law trapped in amber."

Justice Barrett's concurrence in Rahimi seems to go still further. She reiterates and emphasizes a concern she raised in Bruen: that post-enactment tradition, in and of itself, has no binding force. In addition, she quotes the majority's concern about trapping the law in amber and adds a further criticism of looking to positive law in the early Republic as a source of limits on the permissible scope of firearms regulation: doing so "assumes that founding-era legislatures maximally exercised their power to legislate, thereby adopting a 'use-it-or-lose-it' view of legislative authority." Well put.

Indeed, there is some indication that Justice Barrett, at least, is souring on the whole history-and-tradition enterprise. Just over a week before the Court released Rahimi, it released Vidal v. Elster, in which it rejected a First Amendment challenge to the denial of trademark registration for "Trump Too Small," upholding a statutory provision disallowing registration of a trademark making use of an identifiable person's name without consent. Justice Thomas wrote the majority opinion, which delved deeply into the history and tradition of trademarks in other people's names. Justice Barrett wrote a separate concurrence in the judgment--disavowing that approach as both unnecessary and unwarranted. In key respects, she was joined by all of the Democratic appointees.

That's the good news--and, to be clear, it's quite good. But (you knew there would be a "but,") there are some reasons for concern as well. For one thing, while Justice Barrett shows signs of restraint, Justices Gorsuch and Kavanaugh, in separate concurrences, wax poetic about the virtues and supposed determinacy (relative to all other interpretive methods) of the history-and-tradition approach.

Meanwhile it's way too early to pop the cork and celebrate even Justice Barrett's "evolution." Her objection to Justice Thomas's history-and-tradition approach is that it's the wrong way to do originalism. She certainly hasn't disavowed originalism. Indeed, she hasn't even disavowed history or tradition. The Court didn't just decide Rahimi today; it also decided five other cases, including Dep't of State v. Muñoz. There, Justice Barrett wrote an opinion for the majority rejecting the respondent's claim that, as a U.S. citizen, she had a constitutional right to an explanation for the government's refusal to admit into the country her non-citizen husband. Justice Barrett invoked the same test the Court applied in Dobbs, writing that Muñoz loses because she could not show that the right she asserted is "deeply rooted in this Nation's history and tradition."

Finally, the majority opinion in Rahimi is troubling for a wholly different reason. In order to reject Rahimi's Second Amendment claim, CJ Roberts repeatedly invokes the test the Court sometimes cites in evaluating facial challenges: a supposed requirement that the challenger demonstrate that there is "no set of circumstances" in which the law could be constitutionally applied. That language originally appeared in United States v. Salerno (1987), which Rahimi cites. The Court trots it out periodically, but there is a substantial body of scholarship by Professor Richard Fallon, me (e.g., one of my first law review articles, back in 1994), and others explaining that in fact the Court has sensibly declined to apply that draconian test in numerous contexts.

Rahimi itself is a good illustration of one of the oddities of the Salerno test. The Court points to the facts of Rahimi's own case as giving rise to one of the circumstances in which the challenged law is valid. Yet (as I noted way back in 1994), if the state can defeat a facial challenge by showing that the law is valid as applied to the person bringing the challenge, then there's no such thing as a facial challenge, because that's exactly what it takes to defeat an as-applied challenge. A facial challenge is not merely, as the Court says quoting Salerno, "the most difficult challenge to mount successfully," but utterly pointless.

To be clear, I'm not saying that Rahimi should have succeeded in his facial challenge. The Court was right to reject it. But that's because the challenged statutory provision does not impermissibly target Second Amendment rights, nor is it systematically flawed in some other way.

Does the deployment of the Salerno test matter? Maybe, at least a little. Justice Sotomayor, joined by Justice Kagan, concurs in Rahimi to say that she joined the opinion because it correctly applies Bruen, but she continues to think Bruen is wrong. Justice Jackson writes her own concurrence stating that if she had been on the Court when Bruen was decided, she would have dissented. So the Court's three Democratic appointees went out of their way to say they're not acquiescing in Bruen. Yet none of them said a thing about Salerno. Hence, in some future case in which the outcome is more dubious, they will find it more difficult to complain about the Court's opportunistic deployment of Salerno's no-set-of-circumstances test.