The John Roberts Balancing Act Is Back, at Least for Guns (2024)

In United States v. Rahimi, an 8–1 decision, the Supreme Court decisively rejected the radical and ahistorical gun rights jurisprudence of Justice Clarence Thomas. Justice Antonin Scalia once remarked that although he was an originalist, he was not a nut—that is, that he was not willing to strike down every precedent he disagreed with that came before the court. The Rahimi decision only confirms that Thomas’ version of this controversial but ascendent theory of constitutional interpretation was, and remains, bonkers.

After oral argument, there was little doubt that the Supreme Court would overrule the extremism of the decision, by the U.S. Court of Appeals for the 5^th Circuit, that domestic abusers’ Second Amendment rights were violated by federal laws enacted to protect the victims of intimate-partner violence. (It’s worth noting that when the Second Amendment is discussed today by gun rights originalists, it is often written as a plural. The Founders’ Second Amendment was a singular unitary right, but modern originalists like Scalia have helped rewrite the text, turning it into a plural collection of Second Amendment rights.)

Chief Justice John Roberts’ slim opinion was hardly a surprise to those who have followed his remarks on the Second Amendment in oral arguments. In Heller, the court reversed nearly seven decades of established precedent treating the Second Amendment as a single right tied to the effectiveness of a well-regulated militia. Despite its many faults, Heller at least acknowledged the history of gun rights and gun regulation. This balanced approach was later endorsed by Justice Brett Kavanaugh when he was a federal judge, and Roberts has been behind it as well. Essentially, Roberts and Kavanaugh argued that if the same analysis were applied to both sides of the rights-and-regulation equation, many popular commonsense gun regulations would likely survive constitutional challenge. Indeed, this approach was reiterated in their joint concurrence in Bruen, the controversial Thomas decision that wiped away a decade of federal jurisprudence on guns, abandoning the standard tools of modern constitutional analysis in favor of a more fraught and unwieldy approach to history, text, and tradition.

Two interpretations of Bruen’s mode of analysis had emerged among federal courts. Some judges followed the maximalist version, a framework Thomas has now advanced in his Rahimi dissent. This approach relied almost exclusively on statutes, ignoring or misinterpreting the widespread use of common-law methods of protecting the peace and public safety. For these judges, answering the question of whether a law was constitutional involved compiling something akin to a spreadsheet of old laws and looking for something close to a historical twin for the modern law being litigated, an approach Bruen expressly disowned. The few laws that survived this artificial and ahistorical winnowing process were then read in a parsimonious fashion rendering nearly every type of modern gun regulation suspect. An alternative approach, more consistent with the method advocated by Roberts and Kavanaugh, also gained traction in the lower courts. This interpretation of Bruen was still highly solicitous of gun rights and hostile to modern legal tools that acknowledge that consequences matter. This reading of Bruen had the virtue of treating both sides of the rights-and-regulation equation in a consistent manner.

Now, with Rahimi, it’s clear that the Kavanaugh-Roberts school is markedly different from Thomas’ approach. Their method, not the dissent’s cramped vision, currently controls Second Amendment law. This correction is significant. Recent legal research has shown a shocking partisan pattern in the way lower courts have applied Bruen. Republican judges and virtually all Trump-appointed judges approach gun rights at a high level of generality but do not treat regulation in a similar fashion. Studies of the application of Heller in the lower courts, by contrast, found that the use of modern tools of constitutional analysis that take account of consequences was less prone to partisan bias, a fact that challenges the claims of the court’s originalists that their method is more objective. Turning Second Amendment law into a version of historical Where’s Waldo, rummaging around in old laws with no coherent historical method, is far more prone to manipulation of sources and unconscious forms of confirmation bias.

The asymmetrical approach to rights and regulation associated with Thomas and his followers acted as a one-way ratchet, expanding gun rights at the expense of the people’s right to regulate their own affairs (the most fundamental founding-era right.) By contrast, the Roberts approach acknowledged that one has to treat regulations at the same level of generality as rights. Thus, if the founders thought that it was constitutional to disarm dangerous persons, it did not matter if the mechanism and application of this principle today were accomplished in a manner different from the one used by Americans more than 200 years ago. If nothing else, this point alone renders Rahimi an important clarification and refinement of Bruen. Originalists following the Thomas approach are notoriously poor historians, so they have botched the application of Bruen’s method time and again. Professional police forces were not a fixture of the founding era, and most criminal matters were handled by justices of the peace, not judges. Crucially, there was no interpersonal gun violence problem to regulate at the time of the Second Amendment’s ratification. Flintlock muzzle-loading weapons are ill suited to impulsive acts of violence. Thus, looking for comparable methods of enforcement between founding-era law and today was premised on a profound ignorance of early American legal history, firearm technology, and the social history of crime.

Correcting the asymmetrical approach taken by lower courts was central to Solicitor General Elizabeth Prelogar’s tour de force oral argument in Rahimi. Prelogar deserves enormous credit for the outcome in this case, and she has emerged as one of the finest Supreme Court advocates in recent memory. Her pivots and pirouettes in oral argument, deftly responding to hostile questions from the court’s originalists, were remarkable. Prelogar’s advocacy somehow combines the elegance and fluidity of Misty Copeland with the bone-crushing effectiveness of Jackie Chan. To be sure, Roberts did not accept all Prelogar’s arguments: He dismissed her claim that gun rights could be limited to those who are responsible and law-abiding citizens, a position well grounded in the founding era. This issue will certainly resurface in ongoing litigation and may well affect Hunter Biden’s conviction for lying on federal forms about his drug use when he purchased a handgun.

Although the majority opinion clarifies one of the most pernicious misinterpretations of Bruen, the decision did little to clarify the onerous task of applying history, text, and tradition. Indeed, the multiple concurrences written in the case make it clear that there is no consensus about how this test ought to be applied, even among those most wedded to originalism. Indeed, Rahimi will leave most judges scrambling to apply Bruen’s novel approach to history, text, and tradition to current and future cases.

This is part ofOpinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. AlongsideAmicus, we kicked things off this year by explainingHow Originalism Ate the Law. The best way to support our work is by joiningSlate Plus. (If you are already a member, consider adonationormerch!)