SUPREME COURT OF THE UNITED STATES
_________________
No. 22–915
_________________
UNITED STATES, PETITIONER
v. ZACKEY
RAHIMI
on writ of certiorari to the united states
court of appeals for the fifth circuit
[June 21, 2024]
Justice Thomas, dissenting.
After
New York State Rifle & Pistol
Assn., Inc. v.
Bruen, 597 U.S. 1 (2022), this Court’s
directive was clear: A firearm regulation that falls within the
Second Amendment’s plain text is unconstitutional unless it is
consistent with the Nation’s historical tradition of firearm
regulation. Not a single historical regulation justifies the
statute at issue, 18 U. S. C. §922(g)(8). Therefore, I
respectfully dissent.
I
Section 922(g)(8) makes it unlawful for an
individual who is subject to a civil restraining order to possess
firearms or ammunition. To trigger §922(g)(8)’s prohibition, a
restraining order must bear three characteristics. First, the order
issues after a hearing where the accused “received actual notice”
and had “an opportunity to participate.” §922(g)(8)(A). Second, the
order restrains the accused from engaging in threatening behavior
against an intimate partner or child. §922(g)(8)(B). Third, the
order has either “a finding that [the accused] represents a
credible threat to the physical safety of [an] intimate partner or
child,” or an “explici[t] prohibit[ion]” on “the use, attempted
use, or threatened use of physical force against [an] intimate
partner or child.” §922(g)(8)(C). If those three characteristics
are present, §922(g)(8) automatically bans the individual subject
to the order from possessing “any firearm or ammunition.”
§922(g).
Just as important as §922(g)(8)’s express terms
is what it leaves unsaid. Section 922(g)(8) does not require a
finding that a person has ever committed a crime of domestic
violence. It is not triggered by a criminal conviction or a
person’s criminal history, unlike other §922(g) subsections. See
§§922(g)(1), (9). And, §922(g)(8) does not distinguish contested
orders from joint orders—for example, when parties voluntarily
enter a no-contact agreement or when both parties seek a
restraining order.
In addition, §922(g)(8) strips an individual of
his ability to possess firearms and ammunition without any due
process.[
1] Rather, the ban is
an automatic, uncontestable consequence of certain orders. See
§922(g) (“It shall be unlawful for any [qualifying] person [to]
possess in or affecting commerce, any firearm or ammunition”).
There is no hearing or opportunity to be heard on the statute’s
applicability, and a court need not decide whether a person should
be disarmed under §922(g)(8). The only process §922(g)(8) requires
is that provided (or not) for the
underlying restraining
order.
Despite §922(g)(8)’s broad scope and lack of
process, it carries strong penalties. Any violation of §922(g)(8)
is a felony punishable by up to 15 years’ imprisonment. §924(a)(8);
see also
ante, at 3. And, a conviction for violating
§922(g)(8) itself triggers a permanent, life-long prohibition on
possessing firearms and ammunition. See §922(g)(1).
In 2020, Zackey Rahimi and his ex-girlfriend,
C. M., entered into a qualifying civil restraining order. App.
1. C. M. had requested the order and asserted that Rahimi
assaulted her. See
id., at 2. Because the order found that
Rahimi presented a credible threat and prohibited him from using
physical force against C. M., the order automatically
triggered §922(g)(8)’s firearms ban. A year later, officers
discovered firearms in Rahimi’s home. Rahimi pleaded guilty to
violating §922(g)(8).
Before his guilty plea, Rahimi challenged his
conviction under the Second Amendment. He pointed to
District of
Columbia v.
Heller,
554 U.S.
570 (2008), which held that the Second Amendment protects an
individual right to keep and bear firearms. Section 922(g)(8),
Rahimi argued, violates that right by penalizing firearms
possession. The District Court rejected Rahimi’s claim. At that
time, the Courts of Appeals, including the Fifth Circuit, applied a
form of means-end scrutiny to Second Amendment claims. See,
e.
g.,
United States v.
McGinnis, 956
F.3d 747, 753–754 (2020). Applying Circuit precedent, the Fifth
Circuit affirmed the District Court. 2022 WL 2070392 (2022).
Roughly two weeks later, this Court issued its
opinion in
New York State Rifle & Pistol Assn., Inc. v.
Bruen. The Court rejected the means-end-scrutiny approach
and laid out the appropriate framework for assessing whether a
firearm regulation is constitutional.
Bruen, 597 U. S.,
at 17–19. That framework requires the Government to prove that the
“regulation is part of the historical tradition that delimits the
outer bounds of the right to keep and bear arms.”
Id., at
19. The Fifth Circuit withdrew its opinion to apply the correct
framework to Rahimi’s claim. Relying on
Bruen, the Fifth
Circuit concluded that the Government failed to present historical
evidence that §922(g)(8) “fits within our Nation’s historical
tradition of firearm regulation.” 61 F. 4th 443, 460 (2023). The
Fifth Circuit, accordingly, vacated Rahimi’s conviction. We granted
certiorari. 600 U. S. ___ (2023).
II
The Second Amendment provides that “[a] well
regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be
infringed.” As the Court recognizes,
Bruen provides the
framework for analyzing whether a regulation such as §922(g)(8)
violates the Second Amendment’s mandate. “[W]hen the Second
Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct.” 597 U. S.,
at 17. To overcome this presumption, “the government must
demonstrate that the regulation is consistent with the Nation’s
historical tradition of firearm regulation.”
Ibid. The
presumption against restrictions on keeping and bearing firearms is
a central feature of the Second Amendment. That Amendment does not
merely narrow the Government’s regulatory power. It is a barrier,
placing the right to keep and bear arms off limits to the
Government.
When considering whether a modern regulation is
consistent with historical regulations and thus overcomes the
presumption against firearms restrictions, our precedents “point
toward at least two metrics [of comparison]: how and why the
regulations burden a law-abiding citizen’s right to armed
self-defense.”
Id., at 29. A historical law must satisfy
both considerations to serve as a comparator. See
ibid.
While a historical law need not be a “historical twin,” it must be
“well-established and representative” to serve as a historical
analogue.
Id., at 30 (emphasis deleted).
In some cases, “the inquiry [is] fairly
straightforward.”
Id., at 26. For instance, “when a
challenged regulation addresses a general societal problem that has
persisted since the 18th century, the lack of a distinctly similar
historical regulation addressing that problem is relevant evidence
that the challenged regulation is inconsistent with the Second
Amendment. Likewise, if earlier generations addressed the societal
problem, but did so through materially different means, that also
could be evidence that a modern regulation is unconstitutional.”
Id., at 26–27.
The Court employed this “straightforward”
analysis in
Heller and
Bruen.
Heller
considered the District of Columbia’s “flat ban on the possession
of handguns in the home,”
Bruen, 597 U. S., at 27, and
Bruen considered New York’s effective ban on carrying a
firearm in public, see
id., at 11–13. The Court determined
that the District of Columbia and New York had “addressed a
perceived societal problem—firearm violence in densely populated
communities—and [they] employed a regulation . . . that
the Founders themselves could have adopted to confront that
problem.”
Id., at 27. Accordingly, the Court “consider[ed]
‘founding-era historical precedent’ ” and looked for a
comparable regulation.
Ibid. (quoting
Heller, 554
U. S., at 631). In both cases, the Court found no such law and
held the modern regulations unconstitutional.
Id., at 631;
Bruen, 597 U. S., at 27.
Under our precedent, then, we must resolve two
questions to determine if §922(g)(8) violates the Second Amendment:
(1) Does §922(g)(8) target conduct protected by the Second
Amendment’s plain text; and (2) does the Government establish
that §922(g)(8) is consistent with the Nation’s historical
tradition of firearm regulation?
III
Section 922(g)(8) violates the Second
Amendment. First, it targets conduct at the core of the Second
Amendment—possessing firearms. Second, the Government failed to
produce any evidence that §922(g)(8) is consistent with the
Nation’s historical tradition of firearm regulation. To the
contrary, the founding generation addressed the same societal
problem as §922(g)(8) through the “materially different means” of
surety laws.
Id., at 26.
A
It is undisputed that §922(g)(8) targets
conduct encompassed by the Second Amendment’s plain text. After
all, the statute bans a person subject to a restraining order from
possessing or using virtually any firearm or ammunition. §922(g)
(prohibiting covered individuals from “possess[ing]” or
“receiv[ing] any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce”). A covered
individual cannot even possess a firearm in his home for
self-defense, “the central component of the [ Second Amendment]
right itself.”
Heller, 554 U. S., at 599 (emphasis
deleted). There is no doubt that §922(g)(8) is irreconcilable with
the Second Amendment’s text.
Id., at 628–629.
It is also undisputed that the Second Amendment
applies to Rahimi. By its terms, the Second Amendment extends to
“ ‘the people,’ ” and that “term unambiguously refers to
all members of the political community, not an unspecified subset.”
Id., at 580. The Second Amendment thus recognizes a right
“guaranteed to ‘all Americans.’ ”
Bruen, 597
U. S., at 70 (quoting
Heller, 554 U. S., at 581).
Since Rahimi is a member of the political community, he falls
within the Second Amendment’s guarantee.
B
The Government fails to carry its burden of
proving that §922(g)(8) is “consistent with the Nation’s historical
tradition of firearm regulation.” 597 U. S., at 24. 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.[
2]
The Government’s failure is unsurprising given
that §922(g)(8) addresses a societal problem—the risk of
interpersonal violence—“that has persisted since the 18th century,”
yet was addressed “through [the] materially different means” of
surety laws.
Id., at 26. Surety laws were, in a nutshell, a
fine on certain behavior. If a person threatened someone in his
community, he was given the choice to either keep the peace or
forfeit a sum of money. Surety laws thus shared the same
justification as §922(g)(8), but they imposed a far less onerous
burden. The Government has not shown that §922(g)(8)’s more severe
approach is consistent with our historical tradition of firearm
regulation.
1
The Government does not offer a single
historical regulation that is relevantly similar to §922(g)(8). As
the Court has explained, the “central considerations” when
comparing modern and historical regulations are whether the
regulations “impose a comparable burden” that is “comparably
justified.”
Id., at 29. The Government offers only two
categories of evidence that are even within the ballpark of
§922(g)(8)’s burden and justification: English laws disarming
persons “dangerous” to the peace of the kingdom, and commentary
discussing peaceable citizens bearing arms. Neither category
ultimately does the job.
i
The Government points to various English laws
from the late 1600s and early 1700s to argue that there is a
tradition of restricting the rights of “dangerous” persons. For
example, the Militia Act of 1662 authorized local officials to
disarm individuals judged “dangerous to the Peace of the Kingdome.”
14 Car. 2 c. 3, §13. And, in the early 1700s, the Crown authorized
lords and justices of the peace to “cause search to be made for
arms in the possession of any persons whom they judge dangerous,
and seize such arms according to law.” Calendar of State Papers
Domestic: William III, 1700–1702, p. 234 (E. Bateson ed. 1937)
(Calendar William III).
At first glance, these laws targeting
“dangerous” persons might appear relevant. After all, if the Second
Amendment right was historically understood to allow an official to
disarm anyone he deemed “dangerous,” it may follow that modern
Congresses can do the same. Yet, historical context compels the
opposite conclusion. The Second Amendment stems from English
resistance
against “dangerous” person laws.
The sweeping disarmament authority wielded by
English officials during the 1600s, including the Militia Act of
1662, prompted the English to enshrine an individual right to keep
and bear arms. “[T]he Stuart Kings Charles II and James II
succeeded in using select militias loyal to them to suppress
political dissidents, in part by disarming their opponents.”
Heller, 554 U. S., at 592. Englishmen, as a result,
grew “to be extremely wary of concentrated military forces run by
the state and to be jealous of their arms.”
Id., at 593.
Following the Glorious Revolution, they “obtained an assurance
. . . in the Declaration of Right (which was codified as
the English Bill of Rights), that Protestants would never be
disarmed.”
Ibid.
The English Bill of Rights “has long been
understood to be the predecessor to our Second Amendment.”
Ibid. In fact, our Founders expanded on it and made the
Second Amendment even more protective of individual liberty. The
English Bill of Rights assured Protestants “Arms for their
Defence,” but only where “suitable to their Conditions and as
allowed by Law.” 1 Wm. & Mary, ch. 2, (1688), in 6 Statutes of
the Realm 143. The Second Amendment, however, contains no such
qualifiers and protects the right of “the people” generally. In
short, laws targeting “dangerous” persons led to the Second
Amendment. It would be passing strange to permit the Government to
resurrect those selfsame “dangerous” person laws to chip away at
that Amendment’s guarantee.
Even on their own terms, laws targeting
“dangerous” persons cannot support §922(g)(8). Those laws were
driven by a justification distinct from that of §922(g)(8)—quashing
treason and rebellion. The Stuart Kings’ reign was marked by
religious and political conflict, which at that time were often one
and the same. The Parliament of the late 1600s “re-established an
intolerant episcopalian church” through legislation targeting other
sects, including “[a] fierce penal code” to keep those other sects
out of local government and “to criminalize nonconformist worship.”
Oxford Handbook of the English Revolution 212 (M. Braddick ed.
2015) (Oxford Handbook); see G. Clark, The Later Stuarts 1660–1714,
p. 22 (2d ed. 1955). These laws were driven in large part by a
desire to suppress rebellion. “Nonconformist ministers were thought
to preach resistance to divinely ordained monarchs.” Oxford
Handbook 212; see Calendar of State Papers Domestic: Charles II,
1661–1662, p. 161 (M. Green ed. 1861) (Calendar Charles II)
(“[P]reachers go about from county to county, and blow the flames
of rebellion”). Various nonconformist insurrections gave
credibility to these fears. See,
e.g., Clark, The Later
Stuarts, at 22; Privy Council to Lord Newport (Mar. 4, 1661), in
Transactions of the Shropshire Archaeological and Natural History
Society, Pt. 2, 3d Ser., Vol. 4, p. 161 (1904).
It is in this turbulent context that the English
kings permitted the disarming of “dangerous persons.” English lords
feared that nonconformists—
i.
e., people with
“ ‘wicked and Rebellious Principles’ ”—had
“ ‘furnished themselves with quantities of Arms, and
Ammunition’ ” “ ‘to put in Execution their Trayterus
designs.’ ” Privy Council to Lord Newport (Jan. 8, 1660), in
id., at 156; see Calendar Charles II 541 (“The fanatics
. . . are high and insolent, and threaten all loyal
people; they will soon be in arms”). In response, the Crown took
measures to root out suspected rebels, which included “disarm[ing]
all factious and seditious spirits.”
Id., at 538 (Nov. 1,
1662). For example, following “turbulency and difficulties” arising
from the Conventicles Act of 1670, which forbade religious
nonconformists from assembling, the lord mayor of London pressed
that “a special warrant or commission [was] necessary” empowering
commissioners to “resist, fight, kill, and execute such rebels.”
Calendar of State Papers, Domestic Series, 1670, p. 236 (May 25,
1670) (M. Green ed. 1895) (emphasis deleted). King Charles II
ordered the lord mayor “to make strict search in the city and
precincts for dangerous and disaffected persons, seize and secure
them and their arms, and detain them in custody till our further
pleasure.”
Id., at 237 (May 26, 1670).
History repeated itself a few decades later. In
1701, King William III declared that “great quantities of arms, and
other provisions of war” had been discovered in the hands of
“papists and other disaffected persons, who disown [the]
government,” and that such persons had begun to assemble “in great
numbers . . . in the cities of London and Westminster.”
Calendar William III 233. He ordered the lord mayor of London and
the justices of the peace to “secur[e] the government” by disarming
“any persons whom they judge[d] dangerous,” including “any papist,
or reputed papist.”
Id., at 233–234 (emphasis deleted).
Similar disarmaments targeting “Papists and Non-jurors dangerous to
the peace of the kingdom” continued into the 1700s. Privy Council
to the Earl of Carlisle (July 30, 1714), in Historical Manuscripts
Comm’n, Manuscripts of the Earl of Westmoreland et al. 10th
Report, Appx., Pt. 4, p. 343 (1885). As before, disarmament was
designed to stifle “wicked conspirac[ies],” such as “raising a
Rebellion in this Kingdom in favour of a Popish Pretender.” Lord
Lonsdale to Deputy Lieutenants of Cumberland (May 20, 1722), in
Historical Manuscripts Commission, Manuscripts of the Earl of
Carlisle, 15th Report, Appx., Pt. 6, pp. 39–40 (1897).
While the English were concerned about
preventing insurrection and armed rebellion, §922(g)(8) is
concerned with preventing interpersonal violence. “Dangerous”
person laws thus offer the Government no support.
ii
The Government also points to historical
commentary referring to the right of “peaceable” citizens to carry
arms. It principally relies on commentary surrounding two failed
constitutional proposals.[
3]
First, at the Massachusetts convention, Samuel Adams unsuccessfully
proposed that the Bill of Rights deny Congress the power “to
prevent the people of the United States, who are peaceable
citizens, from keeping their own arms.” 6 Documentary History of
the Ratification of the Constitution 1453 (J. Kaminski & G.
Saladino eds. 2000) (Documentary History). Second, Anti-Federalists
at the Pennsylvania convention unsuccessfully proposed a Bill of
Rights providing a “right to bear arms for the defense of
themselves and their own state, or the United States, or for the
purpose of killing game.” 2
id., at 597–598, ¶7 (M. Jensen
ed. 1976). The Anti-Federalists’ Bill of Rights would also state
that “no law shall be passed for disarming the people or any of
them, unless for crimes committed, or real danger of public injury
from individuals.”
Id., at 598.
These proposals carry little interpretative
weight. To begin with, it is “dubious to rely on [drafting] history
to interpret a text that was widely understood to codify a
pre-existing right.”
Heller, 554 U. S., at 603.
Moreover, the States rejected the proposals. Samuel Adams withdrew
his own proposal after it “alarmed both Federalists and
Antifederalists.” 6 Documentary History 1453 (internal quotation
marks omitted).[
4] The
Pennsylvania Anti-Federalists’ proposal similarly failed to gain a
majority of the state convention. 2 B. Schwartz, The Bill of
Rights: A Documentary History 628 (1971).
The Government never explains why or how
language
excluded from the Constitution could operate to
limit the language actually ratified. The more natural inference
seems to be the opposite—the unsuccessful proposals suggest that
the Second Amendment preserves a more expansive right. After all,
the Founders considered, and rejected, any textual limitations in
favor of an unqualified directive: “[T]he right of the people to
keep and bear Arms, shall not be infringed.”
In addition to the proposals, the Government
throws in a hodgepodge of sources from the mid-to-late 1800s that
use the phrase “peaceable” in relation to firearms. Many of the
sources simply make passing reference to the notion. See,
e.
g., H. R. Rep. No. 30, 39th Cong., 1st Sess., pt.
2, p. 229 (1866) (proposed circular explaining freed slaves “have
shown by their peaceful and orderly conduct that they can safely be
trusted with fire-arms, and they need them to kill game for
subsistence”). Other sources are individual musings on firearms
policy. See,
e.
g., The Sale of Pistols, N. Y.
Times, June 22, 1874 (advocating for “including pistols in the law
against carrying concealed weapons”). Sources that do discuss
disarmament generally describe nonpeaceable citizens as those who
threaten the public or government. For example, the Government
quotes a Union General’s order that “all loyal and peaceable
citizens in Missouri will be permitted to bear arms.” Headquarters,
Dept. of the Missouri, General Orders, No. 86 (Aug. 25, 1863), in
The War of the Rebellion: A Compilation of the Official Records of
the Union and Confederate Armies, Ser. 1, Vol. 22, Pt. 2, p. 475
(1888). Yet, the Government fails to mention that the Union
General’s order addresses the “[l]arge numbers of men
. . . leaving the broken rebel armies . . . and
returning to Missouri . . . with the purpose of following
a career of plunder and murder.”
Id., at 474. The order
provided that “all those who voluntarily abandon[ed] the rebel
cause” could return to Missouri, but only if they “surrender[ed]
themselves and their arms,” “[took] the oath of allegiance and
[gave] bond for their future good conduct.”
Ibid. By
contrast, “all loyal and peaceable citizens in Missouri w[ere]
permitted to bear arms” to “protect themselves from violence” and
“aid the troops.”
Id., at 475. Thus, the term “loyal and
peaceable” distinguished between the former rebels residing in
Missouri who were disarmed to prevent rebellion and those citizens
who would help fight against them.
The Government’s smorgasbord of commentary
proves little of relevance, and it certainly does not establish a
“historical tradition that delimits the outer bounds of the right
to keep and bear arms.”
Bruen, 597 U. S., at 19.
iii
The Government’s remaining evidence is even
further afield. The Government points to an assortment of firearm
regulations, covering everything from storage practices to treason
and mental illness. They are all irrelevant for purposes of
§922(g)(8). Again, the “central considerations” when comparing
modern and historical regulations are whether they “impose a
comparable burden” that is “comparably justified.”
Id., at
29 (emphasis deleted; internal quotation marks omitted). The
Government’s evidence touches on one or
none of these
considerations.
The Government’s reliance on firearm storage
laws is a helpful example. These laws penalized the improper
storage of firearms with forfeiture of those weapons. See,
e.g., Act of Mar. 1, 1783, ch. 46, 1782 Mass. Acts pp.
119–120. First, these storage laws did not impose a “comparable
burden” to that of §922(g)(8). Forfeiture still allows a person to
keep their other firearms or obtain additional ones. It is in no
way equivalent to §922(g)(8)’s complete prohibition on owning or
possessing any firearms.
In fact, the Court already reached a similar
conclusion in
Heller. The Court was tasked with comparing
laws imposing “a small fine and forfeiture of the weapon” with the
District of Columbia’s ban on keeping functional handguns at home
for self-defense, which was punishable by a year in prison. 554
U. S., at 633–634. We explained that the forfeiture laws were
“akin to modern penalties for minor public-safety infractions like
speeding or jaywalking.”
Id., at 633. Such inconsequential
punishment would not have “prevented a person in the founding era
from using a gun to protect himself or his family.”
Id., at
634. Accordingly, we concluded that the burdens were not
equivalent. See
id., at 633–634. That analysis applies here
in full force. If a small fine and forfeiture is not equivalent to
the District of Columbia’s handgun ban, it certainly falls short of
§922(g)(8)’s ban on possessing any firearm.
The Government resists the conclusion that
forfeiture is less burdensome than a possession ban, arguing that
“[t]he burdens imposed by bans on keeping, bearing, and obtaining
arms are all comparable.” Reply Brief 10. But, there is surely a
distinction between having
no Second Amendment rights and
having
some Second Amendment rights. If self-defense is “the
central component of the [ Second Amendment] right,” then common
sense dictates that it matters whether you can defend yourself with
a firearm anywhere, only at home, or nowhere.
Heller, 554
U. S., at 599 (emphasis deleted). And, the Government’s
suggestion ignores that we have repeatedly drawn careful
distinctions between various laws’ burdens. See,
e.g.,
id., at 632 (explaining that laws that “did not clearly
prohibit loaded weapons . . . do not remotely burden the
right of self-defense as much as an absolute ban on handguns”); see
also
Bruen, 597 U. S., at 48.
Our careful parsing of regulatory burdens makes
sense given that the Second Amendment codifies a right with a
“historically fixed meaning.”
Id., at 28. Accordingly,
history is our reference point and anchor. If we stray too far from
it by eliding material differences between historical and modern
laws, we “risk endorsing outliers that our ancestors would never
have accepted.”
Id., at 30 (internal quotation marks and
alteration omitted).
Second, the Government offers no “comparable
justification” between laws punishing firearm storage practices and
§922(g)(8). It posits that both laws punish persons whose “conduct
suggested that he would not use [firearms] responsibly.” Brief for
United States 24. The Government, however, does not even attempt to
ground that justification in historical evidence. See
infra,
at 28–29.
The Government’s proposed justification is also
far too general. Nearly all firearm regulations can be cast as
preventing “irresponsible” or “unfit” persons from accessing
firearms. In addition, to argue that a law limiting access to
firearms is justified by the fact that the regulated groups should
not have access to firearms is a logical merry-go-round. As the
Court has made clear, such overly broad judgments cannot suffice.
In
Bruen, New York claimed it could effectively ban public
carry because “the island of Manhattan [is] a ‘sensitive
place.’ ” 597 U. S., at 31. New York defined a “sensitive
place” as “all places where people typically congregate and where
law-enforcement and other public-safety professionals are
presumptively available.”
Id., at 30–31 (internal quotation
marks omitted). The Court rejected that definition as “far too
broa[d]” as it “would in effect exempt cities from the Second
Amendment and would eviscerate the general right to publicly carry
arms for self-defense.”
Id., at 31. Likewise, calling a
modern and historical law comparably justified because they both
prevent unfit persons from accessing firearms would render our
comparable-justification inquiry toothless.[
5]
In sum, the Government has not identified any
historical regulation that is relevantly similar to §922(g)(8).
2
This dearth of evidence is unsurprising
because the Founders responded to the societal problem of
interpersonal violence through a less burdensome regime: surety
laws. Tracing back to early English history, surety laws were a
preventative mechanism for ensuring an individual’s future
peaceable conduct. See D. Feldman, The King’s Peace, the Royal
Prerogative and Public Order, 47 Cambridge L. J. 101, 101–102
(1988); M. Dalton, The Countrey Justice 140–144 (1619). If someone
received a surety demand, he was required to go to a court or
judicial officer with one or more members of the
community—
i.
e., sureties—and comply with certain
conditions. 4 W. Blackstone, Commentaries on the Laws of England
249–250 (1769) (Blackstone). Specifically, the person providing
sureties was required to “keep the peace: either generally
. . . or . . . with regard to the person who
crave[d] the security” until a set date.
Id., at 250. If he
kept the peace, the surety obligation dissolved on that
predetermined date. See
ibid. If, however, he breached the
peace before that date, he and his sureties would owe a set sum of
money. See
id., at 249–250. Evidence suggests that sureties
were readily available. Even children, who “[we]re incapable of
engaging themselves to answer any debt,” could still find “security
by their friends.”
Id., at 251.
There is little question that surety laws
applied to the threat of future interpersonal violence. “[W]herever
any private man [had] just cause to fear, that another w[ould] burn
his house, or do him a corporal injury, by killing, imprisoning, or
beating him . . . he [could] demand surety of the peace
against such person.”
Id., at 252; see also J. Backus, The
Justice of the Peace 25 (1816) (providing for sureties when a
person “stands in fear of his life, or of some harm to be done to
his person or his estate” (emphasis deleted)).
Surety demands were also expressly available to
prevent domestic violence. Surety could be sought by “a wife
against her husband who threatens to kill her or beat her
outrageously, or, if she have notorious cause to fear he will do
either.”
Id., at 24; see 1 W. Hawkins, Pleas of the Crown
253 (6th ed. 1777) (“[I]t is certain, that a wife may demand [a
surety] against her husband threatening to beat her outrageously,
and that a husband also may have it against his wife”). The right
to demand sureties in cases of potential domestic violence was
recognized not only by treatises, but also the founding-era courts.
Records from before and after the Second Amendment’s ratification
reflect that spouses successfully demanded sureties when they
feared future domestic violence. See,
e.g., Records of the
Courts of Quarter Sessions and Common Pleas of Bucks County,
Pennsylvania, 1684–1700, pp. 80–81 (1943) (detailing surety
demanded upon allegations that a husband was “abusive to [his wife]
that she was afraid of her Life & of her Childrns lifes”); see
also
Heyn’s Case, 2 Ves. & Bea. 182, 35 Eng. Rep. 288
(Ch. 1813) (1822) (granting wife’s request to order her husband who
committed “various acts of ill usage and threats” to “find
sufficient sureties”);
Anonymous, 1 S. C. Eq. 113
(1785) (order requiring husband to “enter into recognizance
. . . with two sureties . . . for keeping the
peace towards the complainant (his wife)”).
3
Although surety laws shared a common
justification with §922(g)(8), surety laws imposed a materially
different burden. Critically, a surety demand did not alter an
individual’s right to keep and bear arms. After providing sureties,
a person kept possession of all his firearms; could purchase
additional firearms; and could carry firearms in public and
private. Even if he breached the peace, the only penalty was that
he and his sureties had to pay a sum of money. 4 Blackstone 250. To
disarm him, the Government would have to take some other action,
such as imprisoning him for a crime. See Feldman, 47 Cambridge
L. J., at 101.
By contrast, §922(g)(8) strips an individual of
his Second Amendment right. The statute’s breadth cannot be
overstated. For one, §922(g) criminalizes nearly all conduct
related to covered firearms and ammunition. Most fundamentally,
possession is prohibited, except in the rarest of circumstances.
See,
e.g., United States v.
Rozier, 598 F.3d
768, 771 (CA11 2010) (
per curiam) (concluding that it
was “irrelevant” whether defendant “possessed the handgun for
purposes of self-defense (in his home)”);
United States v.
Gant, 691 F.2d 1159, 1162 (CA5 1982) (affirming conviction
of a business owner under §922(g) predecessor statute for briefly
possessing a firearm to ward off suspected robbers). Courts of
Appeals have understood “possession” broadly, upholding convictions
where a person “picked up . . . three firearms for a few
seconds to inspect” each,
United States v.
Matthews,
520 F.3d 806, 807 (CA7 2008), or “made direct contact with the
firearm by sitting on it,”
United States v.
Johnson,
46 F. 4th 1183, 1189 (CA10 2022). They have also construed
§922(g) to bar “constructive possession” of a firearm, including,
for example, ammunition found in a jointly occupied home. See,
e.g., United States v.
Stepp, 89 F. 4th 826,
832–835 (CA10 2023).
Moreover, §922(g) captures virtually all
commercially available firearms and ammunition. It prohibits
possessing a firearm “in or affecting commerce” and “receiv[ing]
any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.” §922(g). As courts have
interpreted that nexus, if a firearm or ammunition has at any point
crossed interstate lines, it is regulated by §922(g). See
Scarborough v.
United States,
431
U.S. 563, 566–567 (1977) (holding §922(g)’s predecessor statute
covered firearm that “had previously traveled in interstate
commerce”);
United States v.
Lemons,
302 F.3d 769, 772 (CA7 2002) (affirming conviction under
§922(g) for possessing firearm that “crossed into Wisconsin after
its manufacture at some indeterminate moment in time—possibly years
before it was discovered in [the defendant’s]
possession”).[
6] In fact, the
statute goes even further by regulating not only ammunition but
also all
constituent parts of ammunition—many of which are
parts with no dangerous function on their own. See 18
U. S. C. §921(a)(17)(A).
These sweeping prohibitions are criminally
enforced. To violate the statute is a felony, punishable by up to
15 years. §924(a)(8). That felony conviction, in turn, triggers a
permanent, life-long prohibition on exercising the Second Amendment
right. See §922(g)(1).
The combination of the Government’s sweeping
view of the firearms and ammunition within its regulatory reach and
the broad prohibition on any conduct regarding covered firearms and
ammunition makes §922(g)(8)’s burden unmistakable: The statute
revokes a citizen’s Second Amendment right while the civil
restraining order is in place. And, that revocation is absolute. It
makes no difference if the covered individual agrees to a
no-contact order, posts a bond, or even moves across the country
from his former domestic partner—the bar on exercising the Second
Amendment right remains. See
United States v.
Wilkey,
2020 WL 4464668, *1 (D Mont., Aug. 4, 2020) (defendant agreed to
Florida protection order so he could “ ‘just walk away’ ”
and was prosecuted several years later for possessing firearms in
Montana).
That combination of burdens places §922(g)(8) in
an entirely different stratum from surety laws. Surety laws
preserve the Second Amendment right, whereas §922(g)(8) strips an
individual of that right. While a breach of a surety demand was
punishable by a fine, §922(g)(8) is punishable by a felony
conviction, which in turn permanently revokes an individual’s
Second Amendment right. At base, it is difficult to imagine how
surety laws can be considered relevantly similar to a complete ban
on firearm ownership, possession, and use.
This observation is nothing new; the Court has
already recognized that surety laws impose a lesser relative burden
on the Second Amendment right. In
Bruen, the Court explained
that surety laws merely “provide financial incentives for
responsible arms carrying.” 597 U. S., at 59. “[A]n accused
arms-bearer ‘could go on carrying without criminal penalty’ so long
as he ‘post[ed] money that would be forfeited if he breached the
peace or injured others.’ ”
Id., at 56–57 (quoting
Wrenn v.
District of Columbia, 864 F.3d 650, 661
(CADC 2017); alteration in original). As a result, we held that
surety laws were not analogous to New York’s effective ban on
public carry. 597 U. S., at 55. That conclusion is damning for
§922(g)(8), which burdens the Second Amendment right even more with
respect to covered individuals.
Surety laws demonstrate that this case should
have been a “straightforward” inquiry.
Id., at 27. The
Government failed to produce a single historical regulation that is
relevantly similar to §922(g)(8). Rather, §922(g)(8) addresses a
societal problem—the risk of interpersonal violence—“that has
persisted since the 18th century,” yet was addressed “through [the]
materially different means” of surety laws.
Id., at 26.
C
The Court has two rejoinders, surety and
affray laws. Neither is a compelling historical analogue. As I have
explained, surety laws did not impose a burden comparable to
§922(g)(8). And, affray laws had a dissimilar burden
and
justification. The Court does not reckon with these vital
differences, asserting that the disagreement is whether surety and
affray laws must be an exact copy of §922(g)(8).
Ante, at
16. But, the historical evidence shows that those laws are
worlds—not degrees—apart from §922(g)(8). For this reason, the
Court’s argument requires combining aspects of surety and affray
laws to justify §922(g)(8). This piecemeal approach is not what the
Second Amendment or our precedents countenance.
1
Despite the foregoing evidence, the Court
insists that surety laws in fact
support §922(g)(8). To make
its case, the Court studiously avoids discussing the full extent of
§922(g)(8)’s burden as compared to surety laws. The most the Court
does is attack
Bruen’s conclusion that surety laws were less
burdensome than a public carry ban. The Court reasons that
Bruen dealt with a “broad prohibitory regime” while
§922(g)(8) applies to only a subset of citizens.
Ante, at
15–16. Yet, that was only one way in which
Bruen
distinguished a public carry ban from surety laws’ burden. True,
Bruen noted that, unlike the public carry ban, surety laws
did not restrict the general citizenry. But,
Bruen also
plainly held that surety laws did not “constitut[e] a ‘severe’
restraint on public carry, let alone a restriction tantamount to a
ban.” 597 U. S., at 59. In fact, that conclusion is repeated
throughout the opinion.
Id., at 55–59 (surety laws “were not
bans on public carry”; “surety laws did not
prohibit
public carry”; surety laws “were not viewed as substantial
restrictions on public carry”; and “surety statutes did not
directly restrict public carry”).
Bruen’s conclusion is
inescapable and correct. Because surety laws are not equivalent to
an effective ban on public carry, they do not impose a burden
equivalent to a complete ban on carrying
and possessing
firearms.
Next, the Court relies on affray laws
prohibiting “riding or going armed, with dangerous or unusual
weapons, [to] terrif[y] the good people of the land.” 4 Blackstone
149 (emphasis deleted). These laws do not justify §922(g)(8)
either. As the Court concedes, why and how a historical regulation
burdened the right of armed self-defense are central
considerations.
Ante, at 7. Affray laws are not a fit on
either basis.
First, affray laws had a distinct justification
from §922(g)(8) because they regulated only certain public conduct
that injured the entire community. An affray was a “common
Nusanc[e],” 1 Hawkins, Pleas of the Crown, at 135, defined as “the
fighting of two or more persons in some public place, to the terror
of his majesty’s subjects,” 4 Blackstone 145. Even though an affray
generally required “actual violence,” certain other conduct could
suffice. 1 R. Burn, The Justice of the Peace, and Parish Officer 13
(2d ed. 1756). As relevant here, an affray included arming oneself
“with dangerous and unusual weapons, in such a manner as [to]
naturally cause a terror to the people”—
i.
e., “going
armed.”
Ibid. Many postfounding going armed laws had a
self-defense exception: A person could “go armed with a[n]
. . . offensive and dangerous weapon” so long as he had
“reasonable cause to fear an assault or other injury.” Mass. Rev.
Stat., ch. 134, §16 (1836); see also 1838 Terr. of Wis. Stat. §16,
p. 381; 1851 Terr. of Minn. Rev. Stat., ch. 112, §18.
Affrays were defined by their public nature and
effect. An affray could occur only in “some public place,” and
captured only conduct affecting the broader public. 4 Blackstone
145. To that end, going armed laws did not prohibit carrying
firearms at home or even public carry generally. See
Bruen,
597 U. S., at 47–50. Instead, they targeted only public carry
that was “accompanied with such circumstances as are apt to terrify
the people.” 1 Burn, Justice of the Peace, at 13; see
Bruen,
597 U. S., at 50 (explaining that going armed laws “prohibit
bearing arms in a way that spreads ‘fear’ or ‘terror’ among the
people”).
Affrays were intentionally distinguished from
assaults and private interpersonal violence on that same basis. See
Cash v.
State, 2 Tenn. 198, 199 (1813) (“It is
because the violence is committed in a public place, and to the
terror of the people, that the crime is called an affray, instead
of assault and battery”);
Nottingham v.
State, 227
Md. App. 592, 602, 135 A.3d 541, 547 (Md. 2016) (“[U]nlike assault
and battery,” affray is “not a crime against the person; rather,
affray is a crime against the public” (internal quotation marks
omitted)). As treatises shortly before the founding explain, “there
may be an Assault which will not amount to an Affray; as where it
happens in a private Place, out of the hearing or seeing of any,
except the Parties concerned; in which Case it cannot be said to be
to the Terror of the People.” 1 Hawkins
, Pleas of the Crown,
at 134; see 1 Burn, Justice of the Peace, at 13. Affrays thus did
not cover the very conduct §922(g)(8) seeks to
prevent—interpersonal violence in the home.
Second, affray laws did not impose a burden
analogous to §922(g)(8). They regulated a niche subset of Second
Amendment-protected activity. As explained, affray laws prohibited
only carrying certain weapons (“dangerous and unusual”) in a
particular manner (“terrifying the good people of the land” without
a need for self-defense) and in particular places (in public).
Meanwhile, §922(g)(8) prevents a covered person from carrying any
firearm or ammunition, in any manner, in any place, at any time,
and for any reason. Section 922(g)(8) thus bans
all Second
Amendment-protected activity. Indeed, this Court has already
concluded that affray laws do not impose a burden “analogous to the
burden created by” an effective ban on public carry.
Bruen,
597 U. S., at 50. Surely, then, a law that imposes a public
and private ban on a covered individual cannot have an analogous
burden either.
The Court counters that since affray laws
“provided for imprisonment,” they imposed a lesser burden than
§922(g)(8)’s disarmament.
Ante, at 14. But, that argument
serves only to highlight another fundamental difference: Affray
laws were criminal statutes that penalized past behavior, whereas
§922(g)(8) is triggered by a civil restraining order that seeks to
prevent future behavior. Accordingly, an affray’s burden was vastly
harder to impose. To imprison a person, a State had to prove that
he committed the crime of affray beyond a reasonable doubt. The
Constitution provided a bevy of protections during that
process—including a right to a jury trial, counsel, and protections
against double jeopardy. See Amdts. 5, 6.
The imposition of §922(g)(8)’s burden, however,
has far fewer hurdles to clear. There is no requirement that the
accused has actually committed a crime; instead, he need only be
prohibited from threatening or using force, or pose a “credible
threat” to an “intimate partner or child.” §922(g)(8)(C). Section
922(g)(8) thus revokes a person’s Second Amendment right based on
the suspicion that he
may commit a crime in the future. In
addition, the only process required before that revocation is a
hearing on the underlying court order. §922(g)(8)(A). During that
civil hearing—which is not even about §922(g)(8)—a person has fewer
constitutional protections compared to a criminal prosecution for
affray. Gone are the Sixth Amendment’s panoply of rights, including
the rights to confront witnesses and have assistance of counsel, as
well as the Fifth Amendment’s protection against double jeopardy.
See
Turner v.
Rogers,
564 U.S.
431, 441 (2011) (“[T]he Sixth Amendment does not govern civil
cases”);
Hudson v.
United States,
522 U.S.
93, 99 (1997) (“The [Double Jeopardy] Clause protects only
against the imposition of multiple
criminal punishments for
the same offense”). Civil proceedings also do not require proof
beyond a reasonable doubt, and some States even set aside the rules
of evidence, allowing parties to rely on hearsay. See,
e.g.,
Wash. Rule Evid. 1101(c)(4) (2024) (providing the state rules of
evidence “need not be applied” to applications for protection
orders (boldface and capitalization deleted)); Cal. Civ. Proc. Code
Ann. §527.6(i) (West Supp. 2024) (judge “shall receive any
testimony that is relevant” and issue order based on clear and
convincing evidence). The differences between criminal prosecutions
and civil hearings are numerous and consequential.
Affray laws are wide of the mark. While the
Second Amendment does not demand a historical twin, it requires
something closer than affray laws, which expressly carve out the
very conduct §922(g)(8) was designed to prevent (interpersonal
violence in the home). Nor would I conclude that affray
laws—criminal laws regulating a specific type of public carry—are
analogous to §922(g)(8)’s use of a civil proceeding to bar all
Second Amendment-protected activity.
2
The Court recognizes that surety and affray
laws on their own are not enough. So it takes pieces from each to
stitch together an analogue for §922(g)(8).
Ante, at 13. Our
precedents foreclose that approach. The question before us is
whether a single historical law has both a comparable burden and
justification as §922(g)(8), not whether several laws can be
cobbled together to qualify. As
Bruen explained,
“determining whether a historical regulation is a proper analogue
for a distinctly modern firearm regulation requires a determination
of whether the two regulations”—the historical and modern
regulations—“are ‘relevantly similar.’ ” 597 U. S., at
28–29. In doing so, a court must consider whether that single
historical regulation “impose[s] a comparable burden on the right
of armed self-defense
and whether that burden is comparably
justified.”
Id., at 29 (emphasis added).
The Court’s contrary approach of mixing and
matching historical laws—relying on one law’s burden and another
law’s justification—defeats the purpose of a historical inquiry
altogether. Given that imprisonment (which involved disarmament)
existed at the founding, the Government can always satisfy this
newly minted comparable-burden requirement. See
ante, at
14–15. That means the Government need only find a historical law
with a comparable justification to validate modern disarmament
regimes. As a result, historical laws fining certain behavior could
justify completely disarming a person for the same behavior. That
is the exact sort of “regulatory blank check” that
Bruen
warns against and the American people ratified the Second Amendment
to preclude. 597 U. S., at 30.
Neither the Court nor the Government identifies
a single historical regulation with a comparable burden and
justification as §922(g)(8). Because there is none, I would
conclude that the statute is inconsistent with the Second
Amendment.
IV
The Government, for its part, tries to rewrite
the Second Amendment to salvage its case. It argues that the Second
Amendment allows Congress to disarm anyone who is not “responsible”
and “law-abiding.” Not a single Member of the Court adopts the
Government’s theory. Indeed, the Court disposes of it in half a
page—and for good reason.
Ante, at 17. The Government’s
argument lacks any basis in our precedents and would eviscerate the
Second Amendment altogether.
A
The Government’s position is a bald attempt to
refashion this Court’s doctrine. At the outset of this case, the
Government contended that the Court has already held the Second
Amendment protects only “responsible, law-abiding” citizens. Brief
for United States 6, 11–12. The plain text of the Second Amendment
quashes this argument. The Amendment recognizes “the right of the
people to keep and bear Arms.” (Emphasis added.) When the
Constitution refers to “the people,” the term “unambiguously refers
to all members of the political community.”
Heller, 554
U. S., at 580; see also
id., at 581 (beginning its
analysis with the strong “presumption that the Second Amendment
right . . . belongs to all Americans”). The Government’s
claim that the Court already held the Second Amendment protects
only “law-abiding, responsible citizens” is specious at
best.[
7] See
ante, at
17.
At argument, the Government invented yet another
position. It explained that when it used the term “responsible” in
its briefs, it
really meant “not dangerous.” See Tr. of Oral
Arg. 10–11. Thus, it posited that the Second Amendment protects
only law-abiding and
non-dangerous citizens. No matter how
many adjectives the Government swaps out, the fact remains that the
Court has never adopted anything akin to the Government’s test. In
reality, the “law-abiding, dangerous citizen” test is the
Government’s own creation, designed to justify every one of its
existing regulations. It has no doctrinal or constitutional
mooring.
The Government finally tries to cram its
dangerousness test into our precedents. It argues that §922(g)(8)
and its proffered historical laws have a shared justification of
disarming dangerous citizens. The Government, however, does not
draw that conclusion by examining the historical justification for
each law cited. Instead, the Government simply looks—from a modern
vantage point—at the mix of laws and manufactures a possible
connection between them all. Yet, our task is to “assess whether
modern firearms regulations are consistent with the Second
Amendment’s text and
historical understanding.”
Bruen, 597 U. S., at 26 (emphasis added). To do so, we
must look at the historical law’s justification as articulated
during the relevant time period—not at modern
post-hoc
speculations. See,
e.g.,
id., at 41–42, 48–49;
Heller, 554 U. S., at 631–632. As I have explained, a
historically based study of the evidence reveals that the
Government’s position is untenable.
Supra, at 7–13.
As it does today, the Court should continue to
rebuff the Government’s attempts to rewrite the Second Amendment
and the Court’s precedents interpreting it.
B
The Government’s “law-abiding, dangerous
citizen” theory is also antithetical to our constitutional
structure. At bottom, its test stems from the idea that the Second
Amendment points to general principles, not a historically grounded
right. And, it asserts that one of those general principles is that
Congress can disarm anyone it deems “dangerous, irresponsible, or
otherwise unfit to possess arms.” Brief for United States 7. This
approach is wrong as a matter of constitutional interpretation, and
it undermines the very purpose and function of the Second
Amendment.
The Second Amendment recognizes a pre-existing
right and that right was “enshrined with the scope” it was
“understood to have when the people adopted [the Amendment].”
Heller, 554 U. S., at 634–635. Only a subsequent
constitutional amendment can alter the Second Amendment’s terms,
“whether or not future legislatures or . . . even future
judges think [its original] scope [is] too broad.”
Id., at
635.
Yet, the Government’s “law-abiding, dangerous
citizen” test—and indeed any similar, principle-based
approach—would hollow out the Second Amendment of any substance.
Congress could impose any firearm regulation so long as it targets
“unfit” persons. And, of course, Congress would also dictate what
“unfit” means and who qualifies. See Tr. of Oral Arg. 7, 51. The
historical understanding of the Second Amendment right would be
irrelevant. In fact, the Government posits that Congress could
enact a law that the Founders explicitly rejected. See
id.,
at 18 (agreeing that modern judgment would override
“[f]ounding-[e]ra applications”). At base, whether a person could
keep, bear, or even possess firearms would be Congress’s policy
choice under the Government’s test.
That would be the direct inverse of the
Founders’ and ratifying public’s intent. Instead of a substantive
right guaranteed to every individual
against Congress, we
would have a right controlled
by Congress. “A constitutional
guarantee subject to future judges’ [or Congresses’] assessments of
its usefulness is no constitutional guarantee at all.”
Heller, 554 U. S., at 634. The Second Amendment is “the
very
product of an interest balancing by the people.”
Id., at 635. It is this policy judgment—not that of modern
and future Congresses—“that demands our unqualified deference.”
Bruen, 597 U. S., at 26.
The Government’s own evidence exemplifies the
dangers of approaches based on generalized principles. Before the
Court of Appeals, the Government pointed to colonial statutes
“disarming classes of people deemed to be threats, including
. . . slaves, and native Americans.” Supp. Brief for
United States in No. 21–11001 (CA5), p. 33. It argued that since
early legislatures disarmed groups considered to be “threats,” a
modern Congress has the same authority.
Ibid. The problem
with such a view should be obvious. Far from an exemplar of
Congress’s authority, the discriminatory regimes the Government
relied upon are cautionary tales. They warn that when majoritarian
interests alone dictate who is “dangerous,” and thus can be
disarmed, disfavored groups become easy prey. One of many such
examples was the treatment of freed blacks following the Civil War.
“[M]any of the over 180,000 African-Americans who served in the
Union Army returned to the States of the old Confederacy, where
systematic efforts were made to disarm them and other blacks.”
McDonald v.
Chicago,
561 U.S.
742, 771 (2010). Some “States formally prohibited African-
Americans from possessing firearms.”
Ibid. And,
“[t]hroughout the South, armed parties . . . forcibly
took firearms from newly freed slaves.”
Id., at 772. “In one
town, the marshal took all arms from returned colored soldiers, and
was very prompt in shooting the blacks whenever an opportunity
occurred.”
Ibid. (alterations and internal quotation marks
omitted). A constitutional amendment was ultimately “necessary to
provide full protection for the rights of blacks.”
Id., at
775.
The Government peddles a modern version of the
governmental authority that led to those historical evils. Its
theory would allow federal majoritarian interests to determine who
can and cannot exercise their constitutional rights. While Congress
cannot revive disarmament laws based on race, one can easily
imagine a world where political minorities or those with disfavored
cultural views are deemed the next “dangers” to society.
Thankfully, the Constitution prohibits such laws. The “very
enumeration of the [ Second Amendment] right takes out of the hands
of government . . . the power to decide on a case-by-case
basis whether the right is
really worth insisting upon.”
Heller, 544 U. S., at 634.
The Court rightly rejects the Government’s
approach by concluding that any modern regulation must be justified
by specific historical regulations. See
ante, at 10–15. But,
the Court should remain wary of any theory in the future that would
exchange the Second Amendment’s boundary line—“the right of the
people to keep and bear Arms, shall not be infringed”—for vague
(and dubious) principles with contours defined by whoever happens
to be in power.
* * *
This case is not about whether States can
disarm people who threaten others. States have a ready mechanism
for disarming anyone who uses a firearm to threaten physical
violence: criminal prosecution. Most States, including Texas,
classify aggravated assault as a felony, punishable by up to 20
years’ imprisonment. See Tex. Penal Code Ann. §§22.02(b), 12.33
(West 2019 and Supp. 2023). Assuming C. M.’s allegations could
be proved, Texas could have convicted and imprisoned Rahimi for
every one of his alleged acts. Thus, the question before us is not
whether Rahimi and others like him can be disarmed consistent with
the Second Amendment. Instead, the question is whether the
Government can strip the Second Amendment right of anyone subject
to a protective order—even if he has never been accused or
convicted of a crime. It cannot. The Court and Government do not
point to a single historical law revoking a citizen’s Second
Amendment right based on possible interpersonal violence. The
Government has not borne its burden to prove that §922(g)(8) is
consistent with the Second Amendment’s text and historical
understanding.
The Framers and ratifying public understood
“that the right to keep and bear arms was essential to the
preservation of liberty.”
McDonald, 561 U. S., at 858
(Thomas, J., concurring in part and concurring in judgment). Yet,
in the interest of ensuring the Government can regulate one subset
of society, today’s decision puts at risk the Second Amendment
rights of many more. I respectfully dissent.