In District of Columbia v. Heller (2008), a 5-4 majority of the Supreme Court acknowledged for the first time that the Second Amendment protects an individual right to keep and bear arms for self-defense, not a right of state governments to maintain militia organizations. The Court held D.C.’s ban on the civilian possession of handguns unconstitutional, while also offering preliminary endorsements of several other kinds of gun control. Heller was exceedingly equivocal about the appropriate way to determine the constitutionality of regulations other than those specifically discussed in the opinion.

In the following years, the lower courts took advantage of Heller’s ambiguities to uphold virtually every gun regulation they reviewed. Courts almost always treated the regulations Heller had endorsed as automatically valid. For other regulations, they routinely applied a form of means-end scrutiny that deferred to vague government claims about public safety concerns. Notwithstanding repeated protests from Justice Thomas (sometimes joined by Justice Scalia or his successor, Justice Gorsuch), the Court passively accepted an accumulating body of case law that threatened to reduce Heller and the Second Amendment to hollow symbols having little practical effect.

After Justices Kavanaugh and Barrett were appointed, the Court sought to end what increasingly resembled a charade. In New York State Rifle and Pistol Ass’n v. Bruen (2022), a 6-3 majority rejected a statute that authorized government officials to withhold licenses to carry a handgun for self-defense unless applicants could prove that they had been subjected to some extraordinary threat to their personal safety. This was an easy case because New York’s law transformed the constitutional right to bear arms into a mere privilege, dependent on the grace of the government and available only to a small fraction of the population. But Justice Thomas’s majority opinion did not stop there. After denouncing the deferential approach adopted by the lower courts, Bruen laid down a new rule:

We hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

On November 7, the Court will hear oral arguments in United States v. Rahimi, which involves a challenge to a federal statute, 18 USC 922(g)(8). This law automatically criminalizes the possession of a firearm by an individual who has been ordered by a court not to place the subject’s intimate partner in fear of bodily injury to the partner or the partner’s child. The ban on possession is triggered if the restraining order either (i) includes a finding that the subject represents a credible threat to the physical safety of the intimate partner or child, or (ii) explicitly prohibits the use or threat of physical force that would cause bodily injury to the partner or child.

Because the plain text of the Second Amendment covers the possession of a firearm, Bruen’s holding requires the government to demonstrate that 922(g)(8) is consistent with this Nation’s historical tradition of firearm regulation. In some cases, this rule provides an intuitively plausible way to identify the original meaning of the Amendment. Neither the constitutional text nor its very sparse legislative history specifies the scope of the right to keep and bear arms. Absent such direct evidence of the Amendment’s meaning, it is unlikely that the founding generation meant to outlaw a widespread and settled type of regulation that was familiar and uncontroversial during the founding period. This is the same intuition that has led the courts to assume that the First Amendment does not forbid laws against perjury, fraud, or defamation.

Bruen does not contain much detail about the type and amount of evidence governments must produce. But it does indicate that the evidentiary value of historical regulations is greater if such regulations were commonplace rather than rare, if they were near in time to the Amendment’s adoption, and if they were distinctly similar to a modern regulation that the government is defending.

In Rahimi, the brief for the United States does not cite a single pre-twentieth-century American law that punished American citizens, even those who had been convicted of a violent crime, for possessing a firearm in their own homes. Not one.

The government resisted the temptation to rely on early disarmament laws that applied to politically disfavored minorities such as slaves, free people of African descent, American Indians, Catholics, and those who would not sign loyalty oaths. The Constitution would not permit any of these laws to be adopted today, and they are—in any event—manifestly dissimilar to 922(g)(8) in their underlying purpose and effects.

But the government has not resisted the urge to cite other dissimilar regulations, such as laws that confiscated specific weapons that had been misused, or required certain individuals who threatened a breach of the peace to post a bond before carrying a gun in public. Such regulations do not come close to satisfying the government’s burden of defending 922(g)(8), which severely punishes the mere possession of a firearm in the home without requiring any evidence that a person covered by the statute has ever misused a firearm or is likely to do so.

Unable to identify any relevant historical regulations, the United States relies heavily on out-of-context references in Bruen to the importance of protecting “law-abiding, responsible citizens” from an overreaching government. The Supreme Court has never held that the Second Amendment applies only to people who have never broken a law or behaved irresponsibly. Tacitly recognizing the absurdity of drawing such a conclusion from Bruen, the government asserts that future courts can create “meaningful, judicially enforceable limits” on the government’s discretion to disarm people it doesn’t trust. That is an obvious invitation to revive the kind of deferential means-end analysis that Bruen forcefully rejected.

The government tries to distract attention from its failure to meet the Bruen test by emphasizing that Zackey Rahimi himself has been accused in state court of several violent crimes, some involving the misuse of firearms. But the government does not claim that he had been convicted of any crime before the state court issued its restraining order. In any event, the constitutionality of 922(g)(8) is not affected by the fact that Rahimi might legitimately be disarmed under other laws, such as those forbidding prison inmates to possess a gun.

In light of Bruen’s express and clearly stated holding, the government’s brief may look like little more than a Hail Mary pass aimed at persuading the Justices to revise or deceptively “clarify” the novel Bruen test. This gambit, however, could very well succeed. The Bruen holding has its roots in a dissenting opinion written by then-Judge Kavanaugh before he was promoted to the Supreme Court. His opinion was exposed to serious objections arising largely from the paucity of historical evidence that could support a viable history-and-tradition test. Bruen suffers from the same weakness, and it was clear from the start that the Court would find itself driven toward reliance on means-end analysis, although not necessarily the very deferential form of review that Bruen rejected.

What’s more, two members of the Bruen majority conspicuously signaled their discomfort with the holding that the Court purported to adopt. A concurrence filed by Justice Kavanaugh and Chief Justice Roberts underscored the majority’s gratuitous approval of licensing schemes that apparently had no precedents before 1961. Their concurrence also reiterated Heller’s endorsement of several forms of modern gun control which the Court had issued without evidence of any historical justification.

If the Rahimi Court openly or tacitly substitutes an appropriate form of means-end analysis for Bruen’s holding, the Court should see this as an easy case.

First, restraining orders that trigger the ban on possession need not be based on any evidence of prior misuse of a gun or of a proclivity to do so. A judicial finding of a threat to the physical safety of an intimate partner or child, for example, could be based on nothing but an allegation that an agitated man threatened to slap his girlfriend in the face or give their son a good spanking. In one case, a protective order was issued after a distraught man tried to block his ex-girlfriend’s car by lying on its hood. Such orders can be imposed with virtually no due process protections, and it is a serious mistake to assume that they are issued only against demonstrably dangerous individuals. Worse, 922(g)(8) does not require even an allegation of threatened violence. State judges often face enormous pressure to issue such orders, and little incentive to deny them, whether or not they are called for.

These orders are meant to protect a small number of specific individuals, and it’s easy to imagine cases in which the use of a firearm might justifiably be restrained. A state court judge, for example, might have good reasons to order someone not to bring a gun when he meets with his estranged wife. But even if the judge carefully tailors his order to suit the circumstances, 922(g)(8) automatically steps in with a complete federal ban on possession, which renders the man vulnerable to innumerable potential threats that have nothing to do with his wife or their relationship. And when divorce court judges routinely issue restraining orders against both parties, they may increase the danger of domestic violence by depriving the more vulnerable spouse of the means of self-protection.

The overbroad coverage of 922(g)(8) flouts the Constitution’s purpose, which includes protection for the inherent right of self-defense against violent attacks that the government cannot prevent. No one would defend a regulation that infringed the right of free speech in the way that 922(g)(8) infringes the right to keep and bear arms. Suppose a state court ordered a woman to refrain from making threatening phone calls to her former boyfriend. Congress obviously could not make it an automatic felony for that woman to possess a telephone. But somehow we’re supposed to believe that the same order may automatically criminalize her possession of a firearm for self-defense.

Besides the multiple defects that render 922(g)(8) unconstitutional, the statute looks more like a political performance than a serious effort to reduce abusive behavior. The states have ample tools for punishing and deterring domestic violence, and there is no evident justification for their decisions to be displaced by a federal statute. Nor is it apparent that this statute is authorized by the Constitution or Supreme Court precedent. On the contrary, it is hard to see how Congress would have such authority even if the Second Amendment had never been adopted.