2A Attorney Not Sweating Rahimi Decision

Townhall Media

Firearms Policy Coalition Action Foundation president and CEO Cody J, Wiskiewski tells Bearing Arms that, despite the jubilation of gun control groups over the Supreme Court's decision in U.S. v. Rahimi, there are some positive takeaways for Second Amendment advocates in the majority opinion authored by Chief Justice John Roberts. 


First, and perhaps most importantly, Wisniewski says that the Bruen test appears here to stay, with all eight justices in the majority signing on to the "text, history, and tradition" test adopted by the Court in Heller back in 2008. Even the liberal wing of the Court went along with the use of the test instead of applying a two-step, interest balancing test to uphold Section 922(g)(8)(C)(i) of the U.S. Code.

We now have every justice on the Supreme Court signed on to an opinion that lays out the text informed by history test for the Second Amendment. Rahimi was an 8-1 opinion, and Thomas was the author of Bruen, so every justice on the Supreme Court has signed off on that test. That means formally and affirmatively, the Supreme Court has said 'we're not playing any other game. We're not doing two-step tests, we're not doing interest-balancing.' I know they said that in Bruen, but of course we've seen these circuit courts get a little wonky. But that's not what they're doing. The test in Second Amendment cases is text as informed by history.

Wisniewski pointed out that the majority opinion in Rahimi is also extremely narrow in its holding that "When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment." While he says that Justice Clarence Thomas's lone dissent was the correct way to decide the case, Wisneiwski also maintains that Rahimi isn't as bad as some folks are making it out to be. 


Because Rahimi was decided on such narrow grounds, Wisniewski says it's hard to predict how the decision will impact future cases. Anti-2A judges will almost certainly cite the Court's assertion that laws are not "trapped in amber" to uphold modern gun restrictions by citing 18th and 19th-century statutes that have little resemblance to the challenged gun control law, but it's not like lower courts have been faithfully applying the "text, history, and tradition" text up until now. Rahimi may encourage more of those types of shenanigans from the bench, but the Court has still left room for it to smack down judicial overreach in 2A cases. 

Wisniewski will be back to talk about what the Supreme Court does with the dozen-or-so Second Amendment cases that it's been considering in conference when the justices finally take action, which will likely be next week. We'll also be talking with other 2A attorneys like Chuck Michel about those cases, because it's critically important to hear both sides in the gun control debate. The legacy media has focused almost exclusively on promoting the anti-gun point of view, leaving their audience with a warped perspective on what the justices actually said in Rahimi. Clarence Thomas didn't argue in favor of arming domestic abusers any more than John Roberts gave the green light to "assault weapon" bans, but that's not the impression left by anti-gun outlets parroting the talking points of the gun control lobby. 


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