More than fifteen years after the Supreme Court’s decision in District of Columbia v. Heller,1 “the right of the people to keep and bear arms”2 is no longer “a ‘second-class’ right.”3 As a focus of popular,4 academic,5 and judicial attention,6 perhaps no constitutional provision is as hotly contested today as the Second Amendment, and the Supreme Court is still working through the ramifications of its originalist turn in Second Amendment jurisprudence.7 Most recently, in United States v. Rahimi,8 the Court held that 18 U.S.C. § 922(g)(8), which prohibits individuals subject to domestic violence restraining orders from possessing firearms, did not violate the Second Amendment.9 Rahimi is best interpreted as a course correction of the Court’s Second Amendment jurisprudence away from the position taken in New York State Rifle & Pistol Ass’n v. Bruen.10 However, the Court’s failure to definitively address the level of generality question means that many state and federal gun regulations still exist in a state of limbo. The Court’s Second Amendment jurisprudence will remain unsettled until the Court rules more conclusively in the future.

In December 2019, Zackey Rahimi got into an argument with his girlfriend C.M. in a parking lot.11 When C.M. attempted to leave, “Rahimi grabbed her wrist, dragged her back to his car, and shoved her inside.”12 Realizing that a bystander was witnessing the interaction, he pulled a gun from his car, during which time C.M. was able to escape.13 Rahimi fired his gun as she fled, “though it is unclear whether he was aiming at C.M. or the witness.”14 C.M. reported the incident, and in February 2020, a Texas state court granted C.M. a protective order,15 “deeming Rahimi to be a credible threat to C.M.’s physical safety.”16 The order prohibited Rahimi from communicating with C.M. for two years and also suspended his gun license.17

But Rahimi quickly violated the terms of the order: Just three months later, he “approached [C.M.’s] home in the middle of the night, prompting police to arrest him.”18 Then, in December 2020 and January 2021, Rahimi “engaged in a series of five shootings,” including one that arose from a drug deal and two during road rage incidents.19 After police identified him as a suspect in those shootings, they obtained a search warrant for his home; Upon executing the warrant, “they discovered a handgun, a rifle, ammunition, and a copy of the restraining order.”20

Rahimi was charged under 18 U.S.C. §§ 922(g)(8) and 924(a)(2),21 which together prohibit the “possession” of “any firearm or ammunition” by a person subject to a domestic violence restraining order who meets certain conditions.22 Rahimi moved to dismiss the indictment, arguing that 18 U.S.C. § 922(g)(8) violated the Second Amendment.23 The district court denied Rahimi’s motion, finding that his argument was precluded by Fifth Circuit precedent.24 “Rahimi then pleaded guilty.”25

On appeal, the Fifth Circuit initially affirmed the decision.26 In an unpublished per curiam opinion, the court dismissed Rahimi’s constitutional argument in a footnote, noting that it was precluded by circuit precedent.27 Rahimi then moved for rehearing en banc; While his petition was pending, the Supreme Court decided Bruen, radically changing lower court approaches to Second Amendment cases. 28 In light of Bruen, the panel withdrew its earlier opinion and ordered a supplemental briefing “addressing the effect of [Bruen] on this case.”29

On rehearing, the Fifth Circuit reversed the decision. 30 Writing for the panel, Judge Wilson31 first rejected the government’s “argument that Rahimi [was] not among the citizens entitled to Second Amendment protections.”32 While acknowledging that Rahimi was not a “model citizen,” Judge Wilson found that he was still “among ‘the persons’ entitled to Second Amendment guarantees.”33 Because Rahimi’s conduct (owning a firearm) was within the plain text of the Second Amendment, the analysis focused on whether § 922(g)(8) was “consistent with the historical tradition of the Second Amendment.”34 Nation’s regulation of firearms.”34 The court found that it was not, rejecting three categories of 35 Laws prohibiting firearms possession by “dangerous” persons were irrelevant because they disarmed people for “the preservation of political and social order,” not to protect specific individuals from domestic abuse. 36 “Going armed” laws, which “prohibited ‘driving or going armed, with dangerous or unusual weapons, [so as] to terrorize[] the good people of the land,’”37 were of little help because few imposed firearms confiscation as a penalty, and even those that did required a criminal conviction. 38 Finally, bail laws, which empowered magistrates to require bail from potential rioters who would otherwise be jailed,39 were not analogous because they prohibited firearms possession only when the target failed to provide bail. 40

The Supreme Court reversed the ruling. 41 Writing for the Court, Chief Justice Roberts42 found that “[s]ince the founding, our Nation’s firearms laws have included provisions preventing persons who threaten physical harm to others from misusing firearms.”43 Thus, the Court held that “[w]hen a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may be prohibited—pursuant to the Second Amendment—from possessing firearms while the order is in effect.”44

The Chief Justice began by noting that the right to bear arms had been subject to numerous restrictions throughout history. 45 It was for that reason that the Bruen Court “directed the [lower] courts to examine our ‘historic tradition of firearm regulation’ to help delineate the contours of the right.” 46 “However,” the Chief Justice wrote, “some courts have misinterpreted the methodology of our recent Second Amendment cases,” which “were not intended to suggest a law caught in amber.”47 Rather, “the proper analysis involves considering whether the challenged regulation is consistent with the principles underpinning our regulatory tradition,” focusing on “[w]hy and how the regulation affects the right” to keep and bear arms.48 Although a modern regulation “must comply with the principles underlying the Second Amendment, . . . it need not be a ‘look-alike’ or a ‘historical twin. ”49

Turning to the specifics of the case, the Chief Justice viewed two particular categories of regulations as historical analogues to § 922(g)(8): warrant laws and “go armed” laws. Warrant laws could be used to “prevent all forms of violence, including spousal abuse,” and “also targeted the misuse of firearms.”50 Paralleling the approach taken in § 922(g)(8), they offered “significant procedural protections” to defendants, including requiring a hearing before an individual could be disarmed.51 Relatedly, “go armed” laws operated against those who used firearms to threaten others, with violations punishable by “forfeiture . . . and imprisonment.”52

“Taken together,” these two sets of laws “confirmed what common sense suggests: . . . an individual [who] poses a clear threat of physical violence to another . . . 53 The Chief Justice found Section 922(g)(8) to be “‘substantially similar’” to these historical analogues “both in why and how it affects the Second Amendment right.”54 Section 922(g)(8) also offered procedural protections similar to the warrant and “go-armed” laws by requiring an individualized determination that a defendant “‘poses a credible threat to the physical safety’ of another.”55 The temporary nature of Section 922(g)(8)’s disarming—like the warrant laws—and its use of incarceration as a penalty—like the go-armed laws—further supported its constitutionality.56

Justice Sotomayor concurred, joined by Justice Kagan. 57 While still critical of the Court’s decision in Bruen,58 he supported the Rahimi Court’s focus on historical principles rather than “precise historical analogies.” 59 He strongly criticized Justice Thomas’s dissent, arguing that his reading of Bruen would create a “one-way ratchet”60 that would prevent any meaningful gun regulation.61 Although he agreed that “history has a role to play in the analysis of the Second Amendment,” the founding era’s starkly different views on gender and domestic abuse warned against “a rigid adherence to history.”62 Finally, noting the troubling correlation between access to firearms and fatal domestic violence, he argued that “the Government has a compelling interest in keeping firearms out of the hands of domestic abusers,” and that therefore § 922(g)(8) should have been upheld under any of the Court’s traditional levels of scrutiny.63

Justice Gorsuch concurred.64 He emphasized the heavy burden Rahimi faced in bringing a frontal challenge to § 922(g)(8), and agreed that Rahimi’s dissent would be a “one-way ratchet”65. that, “at least in some cases,” § 922(g)(8) was relevantly similar to the bail and gun laws.65 Justice Gorsuch also defended the Court’s originalist jurisprudence under the Second Amendment and held that any form of balancing-of-interests test would necessarily require judicial policymaking rather than impartial adjudication.66 Finally, he noted the limited scope of the Court’s decision and expressed some skepticism about the constitutionality of other restrictions that had not been before the Court.67

Justice Kavanaugh agreed.68 He sought to lay out a comprehensive theory of the Court’s originalist jurisprudence, including the proper roles of “pre-ratification history, post-ratification history, and precedent.” 69 In particular, he sought to defend the use of post-ratification history from criticism, arguing that, “for more than two centuries,” the Court had “looked at post-ratification history… to interpret a vague constitutional text.”70 He characterized the majority opinion as “carefully constructed on Heller, McDonald, and Bruen.”71 His main conclusion was that, “in Second Amendment cases, as in other constitutional cases, text, history, and precedent must remain paramount.”72

Judge Barrett concurred with this view and raised two main points.73 First, consistent with some of her earlier writings,74 she criticized the use of post-ratification history and tradition in constitutional analysis. For her, such evidence is worthless when it is not directly related to uncovering the original meaning of a given provision; its use therefore requires greater justification than “originalism simpliciter.”75 Second, she noted the difficulties lower courts face in applying Bruen’s method of “‘original contours’ history”—looking to historical regulations to determine the contours of the preexisting law enshrined in the Second Amendment.76 Judge Barrett urged courts to evaluate historical analogues at a higher level of generality than the Fifth Circuit did.77 For her, “[h]istorical regulations reveal a principle, not a mold.”78

Judge Jackson agreed. 79 She also focused on the difficulties faced by lower courts in applying the Bruen test,80 noting their divergent outcomes on Second Amendment issues.81 Justice Jackson further noted the plethora of questions left unanswered, including “[h]ow much analogues add to a tradition” and “[h]ow much support . . . “nonstatutory sources [can] lend.”82 Ultimately, she argued, both lower courts and the public “deserve clarity when this Court interprets our Constitution.”83

Justice Thomas dissented.84 In his view, “[n]o historical regulation justified the statute at issue.”85 Crucially, Justice Thomas disagreed that the warrant laws provided support for the constitutionality of § 922(g)(8). In his view, although the guaranty laws addressed the same problem as § 922(g)(8)—“the risk of interpersonal violence”—they did so through drastically different means and did not entirely revoke a person’s Second Amendment right under threat of imprisonment. 86 Justice Thomas also rejected the majority’s analogy to “go armed” laws, arguing that they differed from § 922(g)(8) in both “burden and justification.”87 Laws targeting “dangerous persons” for disarmament and Founding-era proposals to limit gun carrying to “‘peaceful’ citizens” also could not justify § 922(g)(8). 88 He criticized the majority for “picking up pieces from” several historical analogues to support the constitutionality of § 922(g)(8). 89 In his view, under Bruen, the proper question was “whether a single landmark law has both a burden and a justification for the constitutionality of § 922(g)(8). comparable to those in § 922(g)(8), not whether multiple statutes can be combined to qualify.”90

Rahimi represents a retreat from the maximalist position on the Second Amendment that the Court took in Bruen. However, unresolved uncertainties about the proper level of generality with which to assess historical analogues mean that the Court’s Second Amendment jurisprudence will remain unsettled for years to come.

Although eight Justices characterized Rahimi as consistent with the Bruen methodology, upon closer examination, the Rahimi test differs in both wording and application.91 Let’s start with wording. The canonical formulation of the Bruen test, applied by myriad lower courts,92 is that if an individual’s conduct falls within the plain text of the Second Amendment, “[t]he government must then justify its regulation by showing that it is consistent with the Nation’s historical tradition of firearms regulation.” 93 Rahimi, by contrast, held that “the proper analysis” for Second Amendment questions “involves considering whether the challenged regulation is consistent with the principles underpinning our regulatory tradition.”94 Although Rahimi said this formulation was “[as] [the Court] explained in Bruen,”95 the shift from looking solely at tradition to the principles underlying that tradition is significant. The fact that the Bruen opinion never used the term “principle” in this context further indicates that Rahimi effected a significant shift.

This difference was not merely semantic: it shows that in both cases two different tests were applied. The Bruen Court seized on minor differences to distinguish the government’s historical analogs: statutes regulating only concealed carry were distinguishable because they did not also regulate open carry;96 bail laws were distinguishable because they applied only in limited contexts;97 and a statute restricting handgun carrying to those with “reasonable cause to fear unlawful attack on [their] person”98 was distinguishable as a historical “outlier.”99 Rahimi, by contrast, glossed over differences between the historical analogs and § 922(g)(8), including that bail laws only permitted incarceration if a person failed to post bail, or that “go armed” laws were apparently intended only to prevent conduct that harmed the general public.100 Moreover, the Rahimi Court drew from multiple analogs that together supported the challenged regulation,101 while Bruen questioned whether even three direct analogs could “show a tradition of regulating public carry.”102 Indeed, applying the Bruen test in Rahimi would likely have led the Court to vacate § 922(g)(8), as Justice Thomas’ dissent argued.103 Applying the Rahimi test in Bruen might well have led to a different result as well. Rahimi, then, is better read as a course correction in the Court’s Second Amendment jurisprudence than the clarification it purports to be.104

Still, this course correction left open several methodological questions, most notably at what level of generality courts should assess the relationship between a challenged regulation and the relevant historical principles.105 The uncertainty surrounding this question may be due in part to disagreements within the Court over the proper role of tradition. Some of the Court’s decisions treat tradition as an independent source of authority, meaning that if a modern regulation or practice conforms to tradition, it is (at least presumptively) constitutional.106 But some members of the Court—notably, Justice Barrett107—steadfastly reject that tradition has any independent force. For them, its only value is to shed light on the original meaning of a given constitutional provision.

If tradition has independent force, it would make sense to seek a stricter analogy between a challenged norm and a specific historical norm or practice and to assess the relevant principles at a lower level of generality. But if tradition is relevant only to the extent that it sheds light on original meaning, then it would not be a unique tool in constitutional inquiry. Thus, it would be acceptable to consider the principles underlying a given historical norm at a higher level of generality, so long as those principles seem probative of the original meaning of the Second Amendment.

Some of the Court’s difficulties in resolving the level of generality question are no doubt attributable to the difficulty of articulating a general principle for something so inherently unquantifiable.108 But these difficulties may also arise from disagreements in the Court about what purpose the historical-analogical method serves in constitutional analysis. Whatever the reason for the Court’s difficulty in resolving this question, the lower courts remain without much guidance moving forward.

There are sure to be more Second Amendment cases, including challenges to section 922(g)(1) of title 18 of the United States Code, which prohibits the possession of firearms by persons convicted of “a crime punishable by imprisonment for more than one year.”109 That law is especially important because, as of 2010, approximately nineteen million Americans had been convicted of a felony.110

Although Rahimi ostensibly alleviates the government’s burden of demonstrating the constitutionality of a given regulation, § 922(g)(1) differs in two important ways from § 922(g)(8). First, § 922(g)(1) permanently disarms those to whom it applies, whereas § 922(g)(8) is a temporary restraint, applying only while a person “‘is’ subject to a restraining order.”111 Second, unlike § 922(g)(8), § 922(g)(1) does not require an “individualized [finding] by a court” that a person “poses a credible threat to the physical safety of another.” 112 Each of these distinctions makes warrant laws—which required an individual magistrate’s order and imposed time-limited restrictions—a poor analogue of § 922(g)(1). “Go armed” laws also offer little support for § 922(g)(1) for the same reasons, especially since the Court evaluated the two categories of laws together. 113 Indeed, even while applying the stricter Bruen test, several courts have found prohibitions on gun possession by felons to be unconstitutional as it relates to those convicted of nonviolent offenses,114 and even as it relates to those convicted of certain violent offenses. 115

There may be other ways to support the constitutionality of § 922(g)(1). In particular, the holdings in Heller and McDonald v. The Rahimi Court, in Rahimi v. City of Chicago,116 as well as Justice Kavanaugh’s concurring opinion in Bruen, emphasized the continuing constitutionality of “longstanding prohibitions on firearm possession by felons and the mentally ill.”117 The Rahimi Court also seemingly endorsed this holding.118 But, as detailed above, lower courts actually applying the Bruen methodology have reached a different result. To the extent that Rahimi’s project was to ensure that judicial interpretation of the Second Amendment conforms to “what common sense suggests,”119 significant challenges remain on the horizon.

Other provisions of federal firearms law appear similarly threatened even after Rahimi. Section 922(g)(9), which prohibits the possession of a firearm by anyone who “has been convicted in any court of a misdemeanor offense of domestic violence,”120 faces the same challenges as section 922(g)(1). Section 922(g)(3), which applies to anyone “who is an unlawful user of or addicted to any controlled substance,”121 may be on safer ground because of its limited duration. But Section 922(g)(5), which prohibits the possession of firearms by those who are illegally in the United States, effects permanent disarmament; in fact, district courts have held that law to be unconstitutional as it relates to certain defendants.122

Although Rahimi will impose some restrictions on judges’ ability to strike down gun regulations for lack of historical precedent, many challenges remain. These include determining which categories of modern weapons are “weapons” categorically protected by the Second Amendment;123 how long after ratification history remains relevant to determining the original contours of the law; and continuing struggles over the appropriate level of generality with which to analyze a given restriction. While Rahimi is a victory for those who support more restrictive gun laws, it is clear that the broader confrontation will persist.