The Supreme Court is hearing argument today in United States v. Rahimi, the Second Amendment case involving a federal statute denying gun rights to persons subject to domestic violence restraining orders. Many people are looking to the Court for clarification of its "text, history and tradition" test announced in 2022 in the Bruen case. As discussed earlier, I think it's notable that leading defenders of Second Amendment rights disagree on the correct analysis of the issue.
On further reflection, and despite a Wall Street Journal op-ed by Stanford historian Jack Rakove saying the opposite, I think the Rahimi restriction implicates the core purpose of the Second Amendment. As its preamble indicates, the Amendment's central point was to prevent the federal government from interfering with the states' ability to form a militia, by denying the people access to arms. Contrary to some commentators, describing the Amendment this way doesn't undermine the idea of the Amendment as a protection for individual rights: the Amendment protected the militia by protecting individuals' right to arms. The federal statute at issue might be consistent with the Second Amendment as applied to Mr. Rahimi himself, but its broader effect is to disarm people the federal government thinks are dangerous — exactly what the Amendment was designed to prevent. In a sense the Amendment is a federalism provision: it gives the states, not the federal government, power to decide who should be excluded from the arms-bearing militia. (I'm leaving aside here the question of how the Fourteenth Amendment affects the states' power.)
Relatedly, I agree with Nelson Lund that from an originalist perspective the statute in Rahimi is very likely beyond Congress' Article I, Section 8 powers. The Federalists were partially right that the Bill of Rights amendments were somewhat redundant in that they prohibited the federal government from doing things it didn't have the power to do in the first place. The Anti-federalists were right, though, that this was far from entirely true. It seems especially true of the Second Amendment, however.
(Of course, I'm not a Second Amendment expert, so these thoughts — like many things appearing in this space — are mostly tentative. As to the outcome of the case itself, mostly I'm hoping that Justice Thomas writes a concurrence saying that the statute exceeds the government's enumerated powers.)
UPDATE: The argument does not go well for Rahimi, according to SCOTUSBlog.
RELATED: Via SCOTUSBlog, Ian Ayres (Yale) and Fredrick Vars (Alabama) have this article in the LA Times: Supreme Court should protect domestic violence victims from guns, even if the founders didn’t. They mostly argue that the Court's test from Bruen doesn't work in Rahimi because no one was focused on domestic violence at the founding. I think this misses a major element of Bruen – if there weren't similar statutes to the one at issue, the Court said, courts should look at roughly analogous statutes. Thus, in Rahimi pretty much everyone agrees there were no were no relevant domestic violence statutes and the argument is whether there were analogous statutes disarming people found to be dangerous in a broader sense.
The Ayres/Vars essay does highlight one significant problem I see with Bruen, which is: the fact that no laws were enacted (e.g., laws disarming people at risk for domestic violence) does not prove that anyone thought that no such laws could be enacted.
Posted at 6:07 AM