Some lower courts have interpreted Bruen as nixing any firearm regulation without a historical twin from the founding era. Roberts, however, said that the result has been a misinterpretation of the court's findings.
“These precedents were not meant to suggest a law trapped in amber,” he wrote.
Roberts said the court’s rulings were meant to extend to modern firearm equivalents, not just arms that were in existence in the founding era.
"By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791," Roberts wrote. "Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers."
By removing comparisons to founding-era weapons, Roberts said courts must instead review whether the modern balancing of public safety and Second Amendment rights matches the balance struck by the founding generation. This review will consider why and how a law burdens an individual’s right to arms.
Roberts said the easiest way to resolve this question is to decide if contemporary laws address a historically relevant problem.
“Even when a law regulates arms-bearing for a permissible reason, though, it may not be compatible with the right if it does so to an extent beyond what was done at the founding,” Roberts wrote. “And when a challenged regulation does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster.’”
Rahimi launched a facial challenge to the law, which Roberts noted would be the most difficult to win because Rahimi would have to prove that no set of circumstances under the law would be valid.
The court rejected Rahimi’s challenge, Roberts said, because common law has traditionally included bars on firearm possession for individuals who intend to use them to harm others. Roberts said English law disarmed brigands, highwaymen and political opponents, and early American law followed suit.
Roberts cited Massachusetts' 1795 surety law, which targeted the misuse of firearms. Under the regulation, justices of the peace could arrest armed people who were disrupting the peace.
At least four states, Roberts said, enacted “going armed" laws, which prohibited people from using dangerous weapons to terrorize others.
“Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed,” Roberts wrote.
A flurry of commentary
In his dissent, Thomas said Bruen made clear that gun laws must either fall within the Second Amendment’s plain text or be consistent with the historical tradition of firearm regulation. He said this law did neither.
Thomas rejected the government and his colleagues’ conclusion that this prohibition was historically consistent.
“Despite canvassing laws before, during and after our nation’s founding, the government does not identify even a single regulation with an analogous burden and justification,” Thomas wrote.
This is unsurprising, Thomas said, because while the prohibition addresses a societal problem that has persisted since the 18th century, it was addressed then in a much less burdensome way through surety laws, which essentially fined certain behavior.
Thomas noted that the founders fought against English laws that disarmed certain people.
“In short, laws targeting ‘dangerous’ persons led to the Second Amendment,” Thomas wrote. “It would be passing strange to permit the government to resurrect those self-same ‘dangerous’ person laws to chip away at that amendment’s guarantee.”
The ruling earned a flurry of writings from several different justices. Justice Sonia Sotomayor, a Barack Obama appointee, said she still disagreed with Bruen but wanted to make clear that Roberts’ interpretation was preferable to Thomas’.
“In short, the court’s interpretation permits a historical inquiry calibrated to reveal something useful and transferable to the present day, while the dissent would make the historical inquiry so exacting as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding,” Sotomayor wrote in an opinion joined by Justice Elena Kagan, a fellow Obama appointee.
While the court’s opinion clarifies Bruen, it is not likely to solve all the challenges to firearm regulations moving through the lower courts. Justice Brett Kavanaugh, a Donald Trump appointee, wrote a concurring opinion to lay out how text, history and precedent may be applied in some of these cases.
“Those are the tools of the trade for an American judge interpreting the American Constitution,” Kavanaugh wrote.
Justice Amy Coney Barrett, also a Trump appointee, similarly alluded to future challenges. Offering a note on the originalist approach the court has used to interpret the Second Amendment, Barrett commented on the level of generality courts should use when evaluating gun laws.
To round out the trio of Trump appointees, Justice Neil Gorsuch wrote a concurring opinion cautioning against reading the court’s ruling too broadly. Gorsuch said the court did not resolve all future cases in this vein, leaving open the question of whether a law might be unconstitutional in other circumstances.
Justice Ketanji Brown Jackson offered a critique of her colleagues' opinion in Bruen, placing blame on the court for creating confusion in the lower courts. The Joe Biden appointee said the court needed to pay attention to how its rulings play out in real life.
“We must remember that legislatures, seeking to implement meaningful reform for their constituents while simultaneously respecting the Second Amendment, are hobbled without a clear, workable test for assessing the constitutionality of their proposals,” Jackson wrote.
'A small step'
Gun violence advocacy groups were hesitant to laud the justices for upholding the law, claiming that the court only did the bare minimum.
“This law is lifesaving and we’re relieved that the court listened to survivors and finally prioritized Americans' safety over their own partisan feelings,” Ciara Malone, legal director at March For Our Lives, said in a statement. “However, this victory is just a small step towards correcting the errors in Bruen, and we urge the court to continue upholding and clarifying the constitutionality of vital gun safety laws to protect our communities from further tragedy.”
Senate Judiciary Committee Chair Dick Durbin said the ruling reaffirmed that the Second Amendment is not limitless.
“But let’s be clear: The only reason this case was before the court is that two years ago a conservative supermajority of judicial activists established a radical new standard that makes it much easier for the gun lobby to challenge long-standing gun safety laws,” Durbin wrote in a statement. “The court should overturn its misguided Bruen decision as soon as possible.”
Durbin also took the opportunity to critique Thomas, claiming that he isolated himself from a commonsense understanding of the bounds of gun rights.
Follow @KelseyReichmann
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