Ian Millhiser writes:

Last February, the far-right United States Court of Appeals for the Fifth Circuit held that a federal law prohibiting individuals from “possessing a firearm while under a domestic violence restraining order” is unconstitutional. On Friday, the Supreme Court announced that it will hear this case.

It is fairly likely that the justices will reverse the Fifth Circuit’s extraordinary decision — as many as six current members of the Court have signaled that, while some of them support an expansive reading of the Second Amendment right to bear arms, the Fifth Circuit’s decision in United States v. Rahimi goes too far. Justice Brett Kavanaugh has endorsed some prohibitions on gun possession by people who have not been convicted of a felony, including laws prohibiting people with serious mental illnesses from owning guns. Justice Amy Coney Barrett, meanwhile, wrote when she was still a lower court judge that “legislatures have the power to prohibit dangerous people from possessing guns.”

A more uncertain question is whether the Court will use the Rahimi case to impose some coherence on the incomprehensible approach to the Second Amendment that it announced just one year ago in New York State Rifle & Pistol Association v. Bruen (2022).

Bruen held that huge swaths of US gun laws must fall unless the government can prove that “the regulation is consistent with this Nation’s historical tradition of firearm regulation.” And it instructed judges to determine whether a particular challenged gun law is consistent with this tradition by searching for “historical analogies” in early American firearm regulations.

In practice, however, it is often impossible to draw precise analogies between today’s gun laws and those from two centuries ago, because both American society and firearms technology have changed so much since the Second Amendment was ratified.

Consider, for example, the federal ban on machine guns. The machine gun was not even invented until 1884, so anyone hunting for early American laws banning this kind of weapon will come up blank. That said, Bruen also acknowledged that the United States has a “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” so a judge who wishes to uphold the machine gun ban could point to this language in Bruen to justify such a decision.

Or consider, for that matter, the law at issue in Rahimi, which prohibits many individuals who are “subject to a court order” that restrains them from “harassing, stalking, or threatening an intimate partner” from possessing a gun. Notably, this law applies to individuals who have not yet been convicted of a crime, but who have had a court proceeding that determined they are a danger to their partner or their partner’s children.

In defending this law, the Justice Department points to various English, colonial American, and early US laws that disarm people “considered to be dangerous.” But DOJ is unable to cite any laws from these eras that specifically prohibit people who abuse their intimate partners from possessing a gun, because no such laws existed at the time. Indeed, it was legal in all 50 states for married partners to beat their spouses until 1871, when the Alabama Supreme Court ruled that a husband and wife “may be indicted for assault and battery upon each other.”

Bruen, in other words, requires judges to weigh gun regulations using a tool — historical analogies — that is wholly unsuited to that task. Asking judges to determine whether any 18th-century laws resemble modern-day gun regulations is a bit like asking how James Madison would have regulated smartphones. Early Americans simply did not possess weapons that in any way resemble today’s firearms, and we have no idea how they would have regulated more modern weapons. [Continue reading…]