Rahimi Paves Way for Courts to Stop Seeking Historical ‘Twins’

When the US Supreme Court took up United States v. Rahimi, many of us in the gun violence prevention and domestic violence prevention movements held our breath. Time and time again a majority of this particular court has gotten it wrong.

The most egregious of those decisions is Bruen, which led to a cascade of lower court challenges to gun violence prevention laws. That outrageous decision paved the way for the notoriously conservative US Court of Appeals for the Fifth Circuit to hear Rahimi, and, with its decision, undermine a common-sense gun safety measure that temporarily disarms individuals who pose a danger to those around them.

Thankfully, the Supreme Court, by a vote of 8-1, overturned the Fifth Circuit’s ruling and upheld as constitutional the federal prohibition on firearms for individuals subject to qualifying domestic violence restraining orders.

Our worst fears thankfully weren’t realized. Had the court made any other decision, it would have imperiled domestic violence victims, set in motion an inevitable deadly wave of decisions, and unraveled decades of life-saving gun safety laws across the nation.

The court’s decision uses the Bruen “history and tradition” test. While many of us in the legal community, particularly those of us working to free America from gun violence, still think Bruen was wrongly decided, the Rahimi court’s application of Bruen to Section 922(g)(8) is reason for cautious optimism. In Rahimi, as in Bruen, the Supreme Court once again found the constitutionality of a modern gun law depends on whether that law comports with history and tradition.

Yet, the decision made clear that the history and tradition test isn’t about whether a modern law has a historical twin, but whether a modern law aligns with the principles underlying historical laws.

In our amicus brief to the court, we argued similarly, pointing out that the US has long prevented individuals who pose a threat to others from having firearms, and that the Fifth Circuit’s analysis was seriously wrong when it dismissed each historical analogue from the government as an individual example that should be distinguished.

The Supreme Court agreed, concluding that Section 922(g)(8) sufficiently aligns with history and tradition. Although we agree that the history and tradition test mandates this conclusion, we reiterate that the test is wrong. Contrary to the court’s assertion, “history” is subjective and dynamic, and should be left to trained historians rather than lawyers and judges, who have been shown to make serious errors when trying to determine the relevant history.

Gun laws are too important to be subject to an unclear, “law office” history. Americans, and their duly elected lawmakers, have been passing gun legislation to meet the needs of their communities and constituents in record numbers. They deserve clarity, not confusion.

We hope that with this ruling, lower courts will follow the Supreme Court’s instruction to stop looking for historical “twins” and instead recognize that historical principles allow us to rely on the voices of Americans who have had enough of the gun violence wreaking havoc on our homes and our communities.

For today, we are thankful the court, despite its deadly decision in Cargill this session, recognizes that protecting survivors of domestic abuse is common sense.

The case is United States v. Rahimi, No. 22-915, decided 6/21/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Douglas N. Letter is chief legal officer at Brady, the nation’s leading gun violence prevention organization working to free America from gun violence.

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