How Rahimi May Screw Gun Rights for Good

AP Photo/Jae C. Hong

When the Bruen decision came out, it opened the proverbial floodgates. Now we had a guideline that made it very clear that unless there was a historic analog--it didn't have to be a one-to-one analog, just something similar--then a gun control law couldn't and shouldn't remain on the books.

The idea was that if our Founding Fathers felt it wasn't an infringement on the Second Amendment, then we shouldn't either.

As there wasn't a lot of gun control back in the day, that seemed like a hell of an idea, and then we started seeing gun control laws drop by the truckload.

Then last week, we got the Rahimi decision and suddenly, everything changed.

See, the issue with Rahimi was that he hadn't been convicted of anything. The press kept trying to make this about domestic abusers--and there was a good chance Zachy Rahimi was, in fact, a domestic abuser when the restraining order was issued--but the fact of the matter is that the law in question disarmed people who haven't been convicted of anything.

Unfortunately, the Supreme Court felt otherwise, as we all know now.

Yet over at Huffington Post, it seems they're excited by the post-Rahimi prospects, and that should worry all of us.

The Supreme Court almost unanimously agreed that the Second Amendment is not an unlimited right, and that a gun safety law without an exact historical analog could remain constitutional. Chief Justice John Roberts, who authored Friday’s ruling in Rahimi, called the court’s decision “common sense.”

The nationwide deep dive into obscure colonial-era laws and long-ignored historical monographs had gone overboard, Roberts seemed to imply. Historical gun regulations and modern ones simply need to share the same guiding principle, he wrote.

The fact that the early Republic had laws to curb threatening other people with weapons, and a civil system of imposing “sureties” that set bonds on specific people deemed dangerous in order to dissuade them from threatening others, was enough to tease out a working principle. “When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed,” Roberts wrote.

New laws don’t need to have precise historical antecedents — a demand that would make it difficult for Congress to pass any new gun laws after the Civil War.

That clarification leaves many of the dozens of other post-Bruen constitutional challenges to gun safety laws standing on shakier ground, especially considering that Roberts’ opinion comes across as frustrated that this wasn’t obvious.


All of this comes as welcome news to reformers, who now see Bruen as less of a death sentence for gun safety than they did two years ago.

“This decision moves the needle very much in favor of gun violence prevention laws,” said Janet Carter, a lawyer with Everytown for Gun Safety. “The same mistake is being made by several other lower courts. I’m optimistic that this decision will point lower courts in the right direction.”

Now, someone from Everytown thinking this is a good thing isn't really a slam dunk by any stretch of the imagination. However, what happened does muddy the waters a bit.

Sure, they're calling this clarification, but what actually is happening is that lower courts no longer have clear guidance on just how close the parallel to historic laws a measure has to have. That means someone can argue that a law prohibiting swords in churches is close enough to a handgun ban that such a law can be upheld.

Yes, that's an extreme example, as well as a purely hypothetical one, but it's meant to illustrate that what we're going to see now is some lower courts engaging in some mental contortions to try and justify gun control laws under this supposedly clearer standard.

The truth is that no one wanted to see someone like Rahimi walking around with a gun. He was a bad person who represented a serious problem to society.

For all of Roberts's pontification on hypothetical cases, though, the truth is that innocent people are disarmed by this law all the time. The fact that it's temporary shouldn't make it better, and now we have to face the fact that anti-gunners are excited by this for a very good reason.

The door is open now.

It's still more reason we shouldn't expect the courts to save us. We need to win in the legislatures.