The good news is that the U.S. Supreme Court seems poised to reverse a Fifth Circuit decision that said police can’t confiscate guns from domestic abusers. The bad news is that the high court’s 2022 Bruen decision, which guided the lower court’s ruling, remains firmly in place.
Bruen is among the worst-reasoned Supreme Court decisions in recent memory. And even after the justices rule on the case currently before them, Bruen’s precedent will still be difficult for lower courts to apply given the decision’s confused logic.
The case the justices heard Tuesday involved Zackey Rahimi, a Texan with a history of assaulting his girlfriend, threatening people with guns, and firing shots into the air after a friend’s credit card was declined at a Whataburger. A state court in Texas that issued a protective order keeping Rahimi away from his girlfriend triggered a federal law that prohibits people subject to domestic violence protective orders from possessing firearms.
All that sounds entirely sensible in a world where shootings are tragically common. It’s hard to imagine any reasonable person thinking that it would be a good idea to let someone in Rahimi’s situation keep his guns.
Yet common sense did not deter the lower federal courts in Rahimi’s case from ruling the federal law unconstitutional under the Second Amendment. Those courts were interpreting the Supreme Court’s Bruen decision, which held that gun laws must match the “historical tradition” of earlier gun restrictions in U.S. history.
It’s worth noting that the Bruen decision did not tell the lower courts to follow the original meaning of the Second Amendment, despite the fact that the case’s author, Justice Clarence Thomas, is supposed to be an originalist. The reason, no doubt, is that the meaning of the Second Amendment is clearly spelled out in the amendment’s own text, which explains that the purpose is to ensure the existence of a “well regulated militia.”
Unwilling or unable to rely on the amendment’s original meaning, Thomas and the conservative majority instead concocted the novel legal category of “historical tradition.” The trouble is that no one, lawyer or otherwise, knows what it means to decide cases by historical tradition.
To resolve the case with any modicum of protection for the public, the justices will have to create some sort of category of people whose gun rights are not absolutely protected. The leading candidate in the oral argument was the category of “dangerous” people – people who may not have been convicted of a crime, but are nonetheless deemed by the court system to pose a probable danger.
But this is a stop-gap measure, one that will put lower courts in the position of having to guess what other categories might exist and how they can be derived from historical analogies rooted in “tradition.”
Until the Bruen decision, courts treated Second Amendment rights like other constitutional rights, weighing them against the government’s interest in essential goals such as public safety. The Rahimi case shows what happens when the justices throw the norms of legal reasoning to the wind: Poor decisions that leave us less safe.
The Bruen precedent is bad law, bad logic and bad history. It needs to be overturned — not “applied” in subsequent cases that produce unsound constitutional doctrine and unsafe homes.
Noah Feldman is a Bloomberg Opinion columnist and a law professor at Harvard University.
