UNITED STATES v. RAHIMI
No. 22-915
SUPREME COURT OF THE UNITED STATES
June 21, 2024
602 U. S. 680
ROBERTS, C. J., delivered the opinion of the Court, in which ALITO, SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. SOTOMAYOR, J., filed a concurring opinion, in which KAGAN, J., joined. GORSUCH, J., KAVANAUGH, J., BARRETT, J., and JACKSON, J., filed concurring opinions. THOMAS,
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Syllabus
Respondent Zackey Rahimi was indicted under
Held: When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment. Pp. 690-702.
(a) Since the founding, the Nation‘s firearm laws have included regulations to stop individuals who threaten physical harm to others from misusing firearms. As applied to the facts here,
The right to keep and bear arms is among the “fundamental rights necessary to our system of ordered liberty.” McDonald v. Chicago, 561 U. S. 742, 778 (2010). That right, however, “is not unlimited,” District of Columbia v. Heller, 554 U. S. 570, 626 (2008). The reach of the Second Amendment is not limited only to those arms that were in existence at the founding. Id., at 582. Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” Ibid. By that same logic, the Second Amendment permits more than just regulations identical to those existing in 1791.
Under our precedent, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin the Nation‘s regulatory tradition. Bruen, 597 U. S., at 26-31. When firearm regulation is challenged under the Second Amendment, the Government must show that the restriction “is consistent with the Nation‘s historical tradition of firearm regulation.” Id., at 24. A court must ascertain whether the new law is “relevantly similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” Id., at 29, and n. 7. Why and how the regulation burdens the right are central to this inquiry. As Bruen explained, a challenged regulation that does not precisely match its historical precursors “still may be analogous enough to pass constitutional muster.” Id., at 30. Pp. 690-692.
(b)
(1) Rahimi‘s facial challenge to
(2) The Court reviewed the history of American gun laws extensively in Heller and Bruen. At common law people were barred from misusing weapons to harm or menace others. Such conduct was often addressed through ordinary criminal laws and civil actions, such as prohibitions on fighting or private suits against individuals who threatened others. By the 1700s and early 1800s, though, two distinct legal regimes had developed that specifically addressed
The “going armed” laws—a particular subset of the ancient common law prohibition on affrays, or fighting in public—provided a mechanism for punishing those who had menaced others with firearms. Under these laws, individuals were prohibited from “riding or going armed, with dangerous or unusual weapons, [to] terrify[ ] the good people of the
land.” Id., at 149. Those who did so faced forfeiture of their arms and imprisonment. Prohibitions on going armed were incorporated into American jurisprudence through the common law, and some States expressly codified them. Pp. 693-698.
(3) 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.
The burden that
The Court‘s decisions in Heller and Bruen do not help Rahimi. While
does not mean that they cannot be an appropriate analogue for a narrow one. Pp. 698-700.
(4) The Fifth Circuit erred in reading Bruen to require a “historical twin” rather than a “historical analogue.” 597 U. S., at 30. The panel also misapplied the Court‘s precedents when evaluating Rahimi‘s facial challenge. Rather than consider the circumstances in which
(5) Finally, the Court rejects the Government‘s contention that Rahimi may be disarmed simply because he is not “responsible.” The Court used this term in Heller and Bruen to describe the class of citizens who undoubtedly enjoy the Second Amendment right. Those decisions, however, did not define the term and said nothing about the status of citizens who were not “responsible.” Pp. 701-702.
61 F. 4th 443, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which ALITO, SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. SOTOMAYOR, J., filed a concurring opinion, in which KAGAN, J., joined, post, p. 702. GORSUCH, J., post, p. 708, KAVANAUGH, J., post, p. 714, BARRETT, J., post, p. 737, and JACKSON, J., post, p. 740, filed concurring opinions. THOMAS, J., filed a dissenting opinion, post, p. 747.
Solicitor General Prelogar argued the cause for the United States. With her on the briefs were Acting Assistant Attorney General Argentieri, Deputy Solicitor General Fletcher, Vivek Suri, and William A. Glaser.
J. Matthew Wright argued the cause for respondent. With him on the brief were Jason D. Hawkins, Kevin Joel Page, Rachel Taft, T. W. Brown, and Brandon E. Beck.*
Opinion of the Court
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
A federal statute prohibits an individual subject to a domestic violence restraining order from possessing a firearm1 if that order includes a finding that he “represents a credible threat to the physical safety of [an] intimate partner,” or a child of the partner or individual.
I
A
In December 2019, Rahimi met his girlfriend, C. M., for lunch in a parking lot. C. M. is also the mother of Rahimi‘s young child, A. R. During the meal, Rahimi and C. M. began arguing, and Rahimi became enraged. Brief for United States 2. C. M.
Undeterred by this threat, C. M. went to court to seek a restraining order. In the affidavit accompanying her application, C. M. recounted the parking lot incident as well as other assaults. She also detailed how Rahimi‘s conduct had endangered A. R. Although Rahimi had an opportunity to contest C. M.‘s testimony, he did not do so. On February 5, 2020, a state court in Tarrant County, Texas, issued a re-
straining order against him. The order, entered with the consent of both parties, included a finding that Rahimi had committed “family violence.” App. 2. It also found that this violence was “likely to occur again” and that Rahimi posed “a credible threat” to the “physical safety” of C. M. or A. R. Id., at 2-3. Based on these findings, the order prohibited Rahimi from threatening C. M. or her family for two years or contacting C. M. during that period except to discuss A. R. Id., at 3-7. It also suspended Rahimi‘s gun license for two years. Id., at 5-6. If Rahimi was imprisoned or confined when the order was set to expire, the order would instead terminate either one or two years after his release date, depending on the length of his imprisonment. Id., at 6-7.
In May, however, Rahimi violated the order by approaching C. M.‘s home at night. He also began contacting her through several social media accounts.
In November, Rahimi threatened a different woman with a gun, resulting in a charge for aggravated assault with a deadly weapon. And while Rahimi was under arrest for that assault, the Texas police identified him as the suspect in a spate of at least five additional shootings.
The first, which occurred in December 2020, arose from Rahimi‘s dealing in illegal drugs. After one of his customers “started talking trash,” Rahimi drove to the man‘s home and shot into it. Brief for United States 3. While driving the next day, Rahimi collided with another car, exited his vehicle, and proceeded to shoot at the other car. Three days later, he fired his gun in the air while driving through a residential neighborhood. A few weeks after that, Rahimi was speeding on a highway near Arlington, Texas, when a truck flashed its lights at him. Rahimi hit the brakes and cut across traffic to chase the truck. Once off the highway, he fired several times toward the truck and a nearby car before fleeing. Two weeks after that, Rahimi and a friend were
dining at a roadside burger restaurant. When the restaurant declined his friend‘s credit card, Rahimi pulled a gun and shot into the air.
The police obtained a warrant to search Rahimi‘s residence. There they discovered a pistol, a rifle, ammunition—and a copy of the restraining order.
B
Rahimi was indicted on one count of possessing a firearm while subject to a domestic violence restraining order, in violation of
Rahimi‘s restraining order met all three criteria. First, Rahimi had received notice and an opportunity to be heard before the order was entered. App. 2. Second, the order
prohibited him from communicating with or threatening C. M. Id., at 3-4. Third, the order met the requirements of
Rahimi moved to dismiss the indictment, arguing that
While Rahimi‘s petition was pending, this Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022). In Bruen, we explained that when a firearm regulation is challenged under the Second Amendment, the Government must show that the restriction “is consistent with the Nation‘s historical tradition of firearm regulation.” Id., at 24.
In light of Bruen, the panel withdrew the prior opinion and ordered additional briefing. A new panel then heard oral argument and reversed. 61 F. 4th 443, 448 (CA5 2023). Surveying the evidence that the Government had identified, the panel concluded that
We granted certiorari. 600 U. S. ––– (2023).
II
When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect. Since the founding, our Nation‘s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of
A
We have held that the right to keep and bear arms is among the “fundamental rights necessary to our system of ordered liberty.” McDonald v. Chicago, 561 U. S. 742, 778 (2010). Derived from English practice and codified in the Second Amendment, the right secures for Americans a means of self-defense. Bruen, 597 U. S., at 17. The spark that ignited the American Revolution was struck at Lexington and Concord, when the British governor dispatched soldiers to seize the local farmers’ arms and powder stores. In the aftermath of the Civil War, Congress‘s desire to enable the newly freed slaves to defend themselves against former Confederates helped inspire the passage of the Fourteenth Amendment, which secured the right to bear arms against interference by the States. McDonald, 561 U. S., at 771-776. As a leading and early proponent of emancipation observed, “Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty.” Cong. Globe, 40th Cong., 2d Sess., 1967 (1868) (statement of Rep. Stevens).
“Like most rights,” though, “the right secured by the Second Amendment is not unlimited.” District of Columbia v.
Heller, 554 U. S. 570, 626 (2008). In Heller, this Court held that the right applied to ordinary citizens within the home. Even as we did so, however, we recognized that the right was never thought to sweep indiscriminately. “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Ibid. At the founding, the bearing of arms was subject to regulations ranging from rules about firearm storage to restrictions on gun use by drunken New Year‘s Eve revelers. Act of Mar. 1, 1783, 1783 Mass. Acts and Laws ch.13, pp. 218-219; 5 Colonial Laws of New York ch. 1501, pp. 244-246 (1894). Some jurisdictions banned the carrying of “dangerous and unusual weapons.” 554 U. S., at 627 (citing 4 W. Blackstone, Commentaries on the Laws of England 148-149 (1769)). Others forbade carrying concealed firearms. 554 U. S., at 626.
In Heller, our inquiry into the scope of the right began with “constitutional text and history.” Bruen, 597 U. S., at 22. In Bruen, we directed courts to examine our “historical tradition of firearm regulation” to help delineate the contours of the right. Id., at 17. We explained that if a challenged regulation fits within that tradition, it is lawful under the Second Amendment. We also clarified that when the Government regulates arms-bearing conduct, as when the Government regulates other constitutional rights, it bears the burden to “justify its regulation.” Id., at 24.
Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber. As we explained in Heller, for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding. 554 U. S., at 582. Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” Ibid. By that same logic, the Second Amendment
permits more than just
As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. 597 U. S., at 26-31. A court must ascertain whether the new law is “relevantly similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” Id., at 29, and n. 7. Discerning and developing the law in this way is “a commonplace task for any lawyer or judge.” Id., at 28.
Why and how the regulation burdens the right are central to this inquiry. Id., at 29. For example, if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations. 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. And when a challenged regulation does not precisely match its historical precursors, “it still may be analogous enough to pass constitutional muster.” Id., at 30. The law must comport with the principles underlying the Second Amendment, but it need not be a “dead ringer” or a “historical twin.” Ibid. (emphasis deleted).1
B
Bearing these principles in mind, we conclude that
1
Rahimi challenges
Recall that
2
This Court reviewed the history of American gun laws extensively in Heller and Bruen. From the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others. The act of “go[ing] armed to terrify the King‘s subjects” was recognized at common law as a “great offence.” Sir John Knight‘s Case, 3 Mod. 117, 118, 87 Eng. Rep. 75,
76 (K. B. 1686). Parliament began codifying prohibitions against such conduct as early as the 1200s and 1300s, most notably in the Statute of Northampton of 1328. Bruen, 597 U. S., at 40. In the aftermath of the Reformation and the English Civil War, Parliament passed further restrictions. The Militia Act of 1662, for example, authorized the King‘s agents to “seize all Armes in the custody or possession of any person . . . judge[d] dangerous to the Peace of the Kingdome.” 14 Car. 2 c. 3, § 13 (1662); J. Greenlee, The Historical Justification for Prohibiting Dangerous Persons From Possessing Arms, 20 Wyo. L. Rev. 249, 259 (2020).
The Glorious Revolution cut back on the power of the Crown to disarm its subjects unilaterally. King James II had “caus[ed] several good Subjects being Protestants, to be disarmed, at the same Time when Papists were . . . armed.” 1 Wm. & Mary c. 2, § 6, in 3 Eng. Stat. at Large 440 (1689). By way of rebuke, Parliament adopted the English Bill of Rights, which guaranteed “that the Subjects which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law.” § 7, id., at 441. But as the document itself memorialized, the principle that arms-bearing was constrained “by Law” remained. Ibid.
Through these centuries, English law had disarmed not only brigands and highwaymen but also political opponents and disfavored religious groups. By the time of the founding, however, state constitutions and the Second Amendment had largely eliminated governmental authority to disarm political opponents on this side of the Atlantic. See Heller, 554 U. S., at 594-595, 600-603. But regulations targeting individuals who physically threatened others persisted. Such conduct was often addressed through ordinary criminal laws and civil actions, such as prohibitions on fighting or private suits against individuals who threatened others. See 4 W. Blackstone, Commentaries on the Laws of England 145-146, 149-150 (10th ed. 1787) (Blackstone); 3 id., at 120. By the 1700s and early 1800s, however, two distinct legal re-
gimes had developed that specifically addressed firearms violence.
The first were the surety laws. A form of “preventive justice,” these laws derived from the ancient practice of frankpledges. 4 id., at 251-253. Reputedly dating to the time of Canute, the frankpledge system involved compelling adult men to organize themselves into ten-man “tithing[s].” A. Lefroy, Anglo-Saxon Period of English Law, Part II, 26 Yale L. J. 388, 391 (1917). The members of each tithing then “mutually pledge[d] for each other‘s good behaviour.” 4 Blackstone 252. Should any of the ten break the law, the remaining nine would be responsible for producing him in court, or else face punishment in his stead. D. Levinson, Collective Sanctions, 56 Stan. L. Rev. 345, 358 (2003).
Eventually, the communal frankpledge system evolved into the individualized surety regime. Under the surety laws, a magistrate could “oblig[e] those persons, [of] whom there is a probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance . . . that
Well entrenched in the common law, the surety laws could be invoked to prevent all forms of violence, including spousal abuse. As Blackstone explained, “[w]ives [could] demand [sureties] against their husbands; or husbands, if necessary, against their wives.” Id., at 254. These often took the form of a surety of the peace, meaning that the defendant pledged to “keep the peace.” Id., at 252-253; see R. Bloch, The American Revolution, Wife Beating, and the Emergent Value of Privacy, 5 Early American Studies 223, 232-233, 234-235 (2007) (Bloch) (discussing peace bonds). Wives also
demanded sureties for good behavior, whereby a husband pledged to “demean and behave himself well.” 4 Blackstone 253; see Bloch 232-233, 234-235, and n. 34.
While communities sometimes resorted to public shaming or vigilante justice to chastise abusers, sureties provided the public with a more measured solution. B. McConville, The Rise of Rough Music, in Riot and Revelry in Early America 90-100 (W. Pencak, M. Dennis, & S. Newman eds. 2002). In one widely reported incident, Susannah Wyllys Strong, the wife of a Connecticut judge, appeared before Tapping Reeve in 1790 to make a complaint against her husband. K. Ryan, “The Spirit of Contradiction“: Wife Abuse in New England, 1780-1820, 13 Early American Studies 586, 602 (2015). Newspapers carried the story in Connecticut, Massachusetts, and New York. Ibid. Reeve ultimately ordered the man to post a bond of £1,000. Id., at 603.
Importantly for this case, the surety laws also targeted the misuse of firearms. In 1795, for example, Massachusetts enacted a law authorizing justices of the peace to “arrest” all who “go armed offensively [and] require of the offender to find sureties for his keeping the peace.” 1795 Mass. Acts ch. 2, in Acts and Resolves of Massachusetts, 1794-1795, ch. 26, pp. 66-67 (1896). Later, Massachusetts amended its surety laws to be even more specific, authorizing the imposition of bonds from individuals “[who went] armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon.” Mass. Rev. Stat., ch. 134, § 16; see ibid. (marginal note) (referencing the earlier statute). At least nine other jurisdictions did the same. See Bruen, 597 U. S., at 56, and n. 23.
These laws often offered the accused significant procedural protections. Before the accused could be compelled to post a bond for “go[ing] armed,” a complaint had to be made to a judge or justice of the peace by “any person having reasonable cause to fear” that the accused would do him harm or breach the peace. Mass. Rev. Stat., ch. 134, §§ 1, 16. The magistrate would take evidence, and—if he determined that
cause existed for the charge—summon the accused, who could respond to the allegations. §§ 3-4. Bonds could not be required for more than six months at a time, and an individual could obtain an exception if he needed his arms for self-defense or some other legitimate reason. § 16.
While the surety laws provided a mechanism for preventing violence before it occurred, a second regime provided a mechanism for punishing those who had menaced others with firearms. These were the “going
Derived from the French word “affraier,” meaning “to terrify,” 4 Blackstone 145, the affray laws traced their origin to the Statute of Northampton, 2 Edw. 3 c. 3 (1328). Although the prototypical affray involved fighting in public, commentators understood affrays to encompass the offense of “arm-[ing]” oneself “to the Terror of the People,” T. Barlow, The Justice of the Peace: A Treatise 11 (1745). Moreover, the prohibitions—on fighting and going armed—were often codified in the same statutes. E. g., 2 Edw. 3 c. 3; Acts and Laws of His Majesty‘s Province of New-Hampshire in New-England 2 (1761).
Whether classified as an affray law or a distinct prohibition, the going armed laws prohibited “riding or going armed, with dangerous or unusual weapons, [to] terrify[ ] the good people of the land.” 4 Blackstone 149 (emphasis deleted). Such conduct disrupted the “public order” and “le[d] almost necessarily to actual violence.” State v. Huntly, 25 N. C. 418, 421-422 (1843) (per curiam). Therefore, the law punished these acts with “forfeiture of the arms . . . and imprisonment.” 4 Blackstone 149.
In some instances, prohibitions on going armed and affrays were incorporated into American jurisprudence through the common law. See, e. g., Huntly, 25 N. C., at 421-422; O‘Neill v. State, 16 Ala. 65, 67 (1849); Hickman v. State, 193 Md. App. 238, 253-255 (2010) (recognizing that common-law prohibition on fighting in public remains
even now chargeable in Maryland). Moreover, at least four States—Massachusetts, New Hampshire, North Carolina, and Virginia—expressly codified prohibitions on going armed. 1786 Va. Acts ch. 21; 2 Laws of the Commonwealth of Massachusetts from Nov. 28, 1780 to Feb. 28, 1807, pp. 652-653 (1807); Acts and Laws of His Majesty‘s Province of New-Hampshire in New-England 2 (1761); Collection of All the Public Acts of Assembly, of the Province of North-Carolina: Now in Force and Use 131 (1751) (1741 statute).
3
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.
Like the surety and going armed laws,
The burden
Moreover, like surety bonds of limited duration, Section
Finally, the penalty—another relevant aspect of the burden—also fits within the regulatory tradition. The going armed laws provided for imprisonment, 4 Blackstone 149, and if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that Section
Rahimi argues Heller requires us to affirm, because Section
Our analysis of the surety laws in Bruen also does not help Rahimi. In Bruen, we explained that the surety laws were not a proper historical analogue for New York‘s gun licensing regime. 597 U. S., at 55-60. What distinguished the regimes, we observed, was that the surety laws “presumed that individuals had a right to . . . carry,” whereas New York‘s law effectively presumed that no citizen had such a right, absent a special need. Id., at 56 (emphasis deleted). Section
While we also noted that the surety laws applied different penalties than New York‘s special-need regime, we did so only to emphasize just how severely the State treated the rights of its citizens. Id., at 57. But as we have explained, our Nation‘s tradition of firearm regulation distinguishes citizens who have been found to pose a credible threat to the physical safety of others from those who have not. The conclusion that focused regulations like the surety laws are not a historical analogue for a broad prohibitory regime like New York‘s does not mean that they cannot be an appropriate analogue for a narrow one.
4
In short, we have no trouble concluding that Section
The dissent reaches a contrary conclusion, primarily on the ground that the historical analogues for Section
For its part, the Fifth Circuit made two errors. First, like the dissent, it read Bruen to require a “historical twin” rather than a “historical analogue.” Ibid. Second, it did not correctly apply our precedents governing facial challenges. 61 F. 4th, at 453. As we have said in other contexts, “[w]hen legislation and the Constitution brush up against each other, [a court‘s] task is to seek harmony, not to manufacture conflict.” United States v. Hansen, 599 U. S. 762, 781 (2023). Rather than consider the circumstances in which Section
5
Finally, in holding that Section
* * *
In Heller, McDonald, and Bruen, this Court did not “undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment.” Bruen, 597 U. S., at 31. Nor do we do so today. Rather, we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.
The judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins, concurring.
Today, the Court applies its decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), for the first time. Although I continue to believe that Bruen was wrongly decided, see id., at 83-133 (Breyer, J., joined by SOTOMAYOR and KAGAN, JJ., dissenting), I join the Court‘s opinion applying that precedent to uphold
The Court today emphasizes that a challenged regulation “must comport with the principles underlying the Second Amendment,” but need not have a precise historical match. Ante, at 692. I agree. I write separately to highlight why the Court‘s interpretation of Bruen, and not the dissent‘s, is the right one. 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.
I
Even under Bruen, this is an easy case. Section
The Court correctly concludes that “the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” Ante, at 693. That conclusion finds historical support in both the surety laws, which “provided a mechanism for preventing violence before it occurred” by requiring an individual who posed a credible threat of violence to another to post a surety, and the “going armed” laws, which “provided a mechanism for punishing those who had menaced others with firearms” through forfeiture of the arms or imprisonment. Ante, at 697. “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.” Ante, at 698. Section
The Court‘s opinion also clarifies an important methodological point that bears repeating: Rather than asking whether a present-day gun regulation has a precise historical analogue, courts applying Bruen should “conside[r] whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Ante, at 692 (emphasis added); see also ibid. (“The law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin‘” (quoting Bruen, 597 U. S., at 30)). Here, for example, the Government has not identified a founding-era or Reconstruction-era law that specifically disarmed domestic abusers, see, e. g., Tr. of Oral Arg. 40 (conceding as much), but it did not need to do so. Although
The dissent reaches a different conclusion by applying the strictest possible interpretation of Bruen. It picks off the Government‘s historical sources one by one, viewing any basis for distinction as fatal. See, e. g., post, at 764 (opinion of THOMAS, J.) (“Although surety laws shared a common justification with
If the dissent‘s interpretation of Bruen were the law, then Bruen really would be the “one-way ratchet” that I and the other dissenters in that case feared, “disqualify[ing] virtually any ‘representative historical analogue’ and mak[ing] it nearly impossible to sustain common-sense regulations necessary to our Nation‘s safety and security.” 597 U. S., at 112 (Breyer, J., dissenting). Thankfully, the Court rejects that rigid approach to the historical inquiry. As the Court puts it today, Bruen was “not meant to suggest a law trapped in amber.” Ante, at 691.
This case lays bare the perils of the dissent‘s approach. Because the dissent concludes that ”
III
The Court today clarifies Bruen‘s historical inquiry and rejects the dissent‘s exacting historical test. I welcome that development.
To start, the Government has a compelling interest in keeping firearms out of the hands of domestic abusers. A woman who lives in a house with a domestic abuser is five times more likely to be murdered if the abuser has access to a gun. See A. Kivisto & M. Porter, Firearm Use Increases Risk of Multiple Victims in Domestic Homicides, 48 J. Am. Acad. Psychiatry & L. 26 (2020). With over 70 people shot and killed by an intimate partner each month in the United States, the seriousness of the problem can hardly be overstated. See Centers for Disease Control and Prevention, WISQARS Nat. Violent Death Reporting System, Violent Deaths Report 2020, https://wisqars.cdc.gov/nvdrs (showing that 863 people were killed with a firearm by a spouse or other intimate partner in 2020). Because domestic violence is rarely confined to the intimate partner that receives the protective order, the Government‘s interest extends even further. In roughly a quarter of cases where an abuser killed an intimate partner, the abuser also killed someone else, such as a child, family member, or roommate. See S. Smith, K. Fowler, & P. Niolon, Intimate Partner Homicide and Corollary Victims in 16 States: National Violent Death Reporting System, 2003-2009, 104 Am. J. Pub. Health 461, 463-464 (2014). Moreover, one study found that domestic disputes were the most dangerous type of call for responding officers, causing more officer deaths with a firearm than any other type of call. See N. Breul & M. Keith, Deadly Calls and Fatal Encounters: Analysis of U. S. Law Enforcement Line of Duty Deaths When Officers Responded to Dispatched Calls for Service and Conducted Enforcement, 2010-2014, p. 15 (2016).
While the Second Amendment does not yield automatically to the Government‘s compelling interest,
Although I continue to think that the means-end approach to Second Amendment analysis is the right one, neither party asks the Court to reconsider Bruen at this time, and that question would of course involve other considerations than whether Bruen was rightly decided. Whether considered under Bruen or under
JUSTICE GORSUCH, concurring.
Mr. Rahimi pursues the “most difficult challenge to mount successfully“: a facial challenge. United States v. Salerno, 481 U. S. 739, 745 (1987). He contends that
That is not because the Constitution has little to say about the matter. The Second Amendment protects the “right of the people to keep and bear Arms.” “‘[T]ext and history‘” dictate the contours of that right. Ante, at 691 (quoting New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 22 (2022)). As this Court has recognized, too, the Amendment‘s text “‘guarantee[s] the individual right to possess and carry weapons in case of confrontation.‘” Id., at 32 (quoting District of Columbia v. Heller, 554 U. S. 570, 592 (2008)). And where that “text covers an individual‘s conduct,” a law regulating that conduct may be upheld only if it is “consistent with this Nation‘s historical tradition of firearms regulation.” 597 U. S., at 17; see ante, at 691.
In this case, no one questions that the law Mr. Rahimi challenges addresses individual conduct covered by the text of the Second Amendment. So, in this facial challenge, the question becomes whether that law, in at least some of its applications, is consistent with historic firearm regulations. To prevail, the government need not show that the current law is a “‘dead ringer‘” for some historical analogue. Ante, at 692 (quoting Bruen, 597 U. S., at 30). But the government must establish that, in at least some of its applications, the challenged law “impose[s] a comparable burden on the right of armed self-defense” to that imposed by a historically recognized regulation. Id., at 29; see ante, at 692. And it must show that the burden imposed by the current law “is comparably justified.” Bruen, 597 U. S., at 29; see ante, at 692.
Why do we require those showings? Through them, we seek to honor the fact that the Second Amendment “codified a pre-existing right” belonging to the American people, one that carries the same “scope” today that it was “understood to have when the people adopted” it. Heller, 554 U. S., at 592, 634-635. When the people ratified the Second Amendment, they surely understood an arms-bearing citizenry posed some risks. But just as surely they believed that the right protected by the Second Amendment was itself vital to the preservation of life and liberty. See, e. g., 1 Blackstone‘s Commentaries, Editor‘s App. 300 (St. George Tucker ed. 1803) (observing that the Second Amendment may represent the “palladium of liberty,” for “[t]he right of self defence is the first law of nature,” and “in most governments[,] it has been the study of rulers to confine this right within the narrowest limits“); 3 J. Story, Commentaries on the Constitution of the United States § 1890, p. 746 (1833) (“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic“).
Consider just one example. We have recognized that the Sixth Amendment enshrines another pre-existing right: the right of a defendant to confront his accusers at trial. Crawford v. Washington, 541 U. S. 36, 54 (2004). Just as here, we have recognized that, in placing this right in the Constitution, the people set its scope, “admitting only those exceptions established at the time of the founding.” Ibid. And, just as here, when parties ask us to sustain some modern exception to the confrontation right, we require them to point to a close historic analogue to justify it. See Giles v. California, 554 U. S. 353, 358-361 (2008). Just as here, too, we have expressly rejected arguments that courts should proceed differently, such as by trying to glean from historic exceptions overarching “policies,” “‘purposes,‘” or “values” to guide them in future cases. See id., at 374-375 (opinion of Scalia, J.). We have rejected those paths because the Constitution enshrines the people‘s choice to achieve certain policies, purposes, and values “through very specific means“: the right of confrontation as originally understood at the time of the founding. Id., at 375. As we have put it, a court may not “extrapolate” from the Constitution‘s text and history “the values behind [that right], and then . . . enforce its guarantees only to the extent they serve (in the courts’ views) those underlying values.” Ibid. Proceeding that way, we have warned, risks handing judges a license to turn “the guarantee of confrontation” into “no guarantee at all.” Ibid. As there, so too here: Courts must proceed with care in making comparisons to historic firearms regulations, or else they risk gaming away an individual right the people expressly preserved for themselves in the Constitution‘s text.
Proceeding with this well in mind today, the Court rightly holds that Mr. Rahimi‘s facial challenge to
I appreciate that one of our colleagues sees things differently. Post, at 751 (THOMAS, J., dissenting). But if reasonable minds can disagree whether
Just consider how lower courts approached the Second Amendment before our decision in Bruen. They reviewed firearm regulations under a two-step test that quickly “devolved” into an interest-balancing inquiry, where courts would weigh a law‘s burden on the right against the benefits the law offered. See Rogers v. Grewal, 590 U. S. 996, 999-1000, and n. 1 (2020) (THOMAS, J., joined by KAVANAUGH, J., dissenting from denial of certiorari); see also, e. g., Peruta v. County of San Diego, 742 F. 3d 1144, 1167-1168, 1176-1177 (CA9 2014); Drake v. Filko, 724 F. 3d 426, 457 (CA3 2013) (Hardiman, J., dissenting). Some judges expressed concern that the prevailing two-step test had become “just window dressing for judicial policymaking.” Duncan v. Bonta, 19 F. 4th 1087, 1148 (CA9 2021) (en banc) (Bumatay, J., dissenting). To them, the inquiry worked as a “black box regime” that gave a judge broad license to support policies he “[f]avored” and discard those he disliked. Ibid. How did the government fare under that regime? In one circuit, it had an “undefeated, 50-0 record.” Id., at 1167, n. 8 (VanDyke, J., dissenting). In Bruen, we rejected that approach for one guided by constitutional text and history. 597 U. S., at 19. Perhaps judges’ jobs would be easier if they could simply strike the policy balance they prefer. And a principle that the government always wins surely would be simple for judges to implement. But either approach would let judges stray far from the Constitution‘s promise. See Heller, 554 U. S., at 634.
One more point: Our resolution of Mr. Rahimi‘s facial challenge to
We do not resolve any of those questions (and perhaps others like them) because we cannot. Article III of the Constitution vests in this Court the power to decide only the “‘actual cas[e]‘” before us, “‘not abstractions.‘” Public Workers v. Mitchell, 330 U. S. 75, 89 (1947). And the case before us does not pose the question whether the challenged statute is always lawfully applied, or whether other statutes might be permissible, but only whether this one has any lawful scope. Nor should future litigants and courts read any more into our decision than that. As this Court has long recognized, what we say in our opinions must “be taken in connection with the case in which those expressions are used,” Cohens v. Virginia, 6 Wheat. 264, 399 (1821), and may not be “stretch[ed] . . . beyond their context,” Brown v. Davenport, 596 U. S. 118, 141 (2022).
Among all the opinions issued in this case, its central messages should not be lost. The Court reinforces the focus on text, history, and tradition, following exactly the path we described in Bruen. Ante, at 690-692. And after carefully consulting those materials, the Court “conclude[s] only this“: “An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” Ante, at 702 (emphasis added). With these observations, I am pleased to concur.
JUSTICE KAVANAUGH, concurring.
The Framers of the Constitution and Bill of Rights wisely sought the best of both worlds: democratic self-government and the protection of individual rights against excesses of that form of government. In justiciable cases, this Court determines whether a democratically enacted law or other government action infringes on individual rights guaranteed by the Constitution. When performing that Article III duty, the Court does not implement its own policy judgments about, for example, free speech or gun regulation. Rather, the Court interprets and applies the Constitution by examining text, pre-ratification and post-ratification history, and precedent. The Court‘s opinion today does just that, and I join it in full.
The concurring opinions, and the briefs of the parties and amici in this case, raise important questions about judicial reliance on text, history, and precedent, particularly in Second Amendment cases. I add this concurring opinion to review the proper roles of text, history, and precedent in constitutional interpretation.
I
The American people established an enduring American Constitution. The first
In many important provisions, the Constitution is a document of majestic specificity with “strikingly clean prose.” A. Amar, America‘s Constitution xi (2005). Two Houses of Congress. A House elected every two years. Senators serve 6-year terms. Two Senators per State. A State‘s equal suffrage in the Senate may not be changed without the State‘s consent. A two-thirds House vote to expel a Member of the House. The same for the Senate. Appropriations are made by law. Bicameralism and presentment. The Presidential veto. The Presidential pardon. The President serves a 4-year term. A maximum of two elected terms for a President. The salary of a sitting President may not be increased or decreased. A vote of a majority of the House and two-thirds of the Senate to remove a President. The President nominates and the Senate confirms principal executive officers. One Supreme Court. Tenure and salary protection for Supreme Court and other federal judges. Two-thirds of each House of Congress together with three-fourths of the States may amend the Constitution. Congress meets at noon on January 3rd unless otherwise specified by Congress. The District of Columbia votes in Presidential elections. The list goes on.
Those and many other constitutional provisions are relatively clear. And when the “framers of the Constitution employed words in their natural sense; and where they are plain and clear, resort to collateral aids to interpretation is unnecessary and cannot be indulged in to narrow or enlarge the text.” McPherson v. Blacker, 146 U. S. 1, 27 (1892).
Of course, some provisions of the Constitution are broadly worded or vague—to put it in Madison‘s words, “more or less obscure and equivocal.” The Federalist No. 37, p. 229 (C. Rossiter ed. 1961). As Chief Justice Rehnquist explained, the Constitution is in some parts “obviously not a specifically worded document but one couched in general phraseology.” W. Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 697 (1976).
That is especially true with respect to the broadly worded or vague individual-rights provisions. (I will use the terms “broadly worded” and “vague” interchangeably in this opinion.) For example, the First Amendment provides that “Congress shall make no law” “abridging the freedom of speech.” And the Second Amendment, at issue here, guarantees that “the right of the people to keep and bear Arms” “shall not be infringed.”
Read literally, those Amendments might seem to grant absolute protection, meaning that the government could never regulate speech or guns in any way. But American law has long recognized, as a matter of original understanding and original meaning, that constitutional rights generally come with exceptions.
With respect to the First Amendment, for example, this Court‘s “jurisprudence over the past 216“—now 233—“years has rejected an absolutist interpretation.” Federal Election Comm‘n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 482 (2007) (opinion of ROBERTS, C. J.); see R. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 21-22 (1971). From 1791 to the present, “the First Amendment has permitted restrictions
II
A recurring and difficult issue for judges, therefore, is how to interpret vague constitutional text. That issue often arises (as here) in the context of determining exceptions to textually guaranteed individual rights. To what extent does the Constitution allow the government to regulate speech or guns, for example?1
In many cases, judicial precedent informs or controls the answer (more on that later). But absent precedent, there are really only two potential answers to the question of how to determine exceptions to broadly worded constitutional rights: history or policy.
Generally speaking, the historical approach examines the laws, practices, and understandings from before and after ratification that may help the interpreter discern the meaning of the constitutional text and the principles embodied in that text. The policy approach rests on the philosophical or policy dispositions of the individual judge.
History, not policy, is the proper guide.
For more than 200 years, this Court has relied on history when construing vague constitutional text in all manner of constitutional disputes. For good reason. History can sup-
ply evidence of the original meaning of vague text. History is far less subjective than policy. And reliance on history is more consistent with the properly neutral judicial role than an approach where judges subtly (or not so subtly) impose their own policy views on the American people.
Judges are like umpires, as THE CHIEF JUSTICE has aptly explained. And in a constitutional system that counts on an independent Judiciary, judges must act like umpires. To be an umpire, the judge “must stick close to the text and the history, and their fair implications,” because there “is no principled way” for a neutral judge “to prefer any claimed human value to any other.” R. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 8 (1971). History establishes a “criterion that is conceptually quite separate from the preferences of the judge himself.” A. Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989). When properly applied, history helps ensure that judges do not simply create constitutional meaning “out of whole cloth.” A. Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1183 (1989).2
right secured by the Second Amendment is not unlimited“; it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” District of Columbia v. Heller, 554 U. S. 570, 626 (2008).
II
A recurring and difficult issue for judges, therefore, is how to interpret vague constitutional text. That issue often arises (as here) in the context of determining exceptions to textually guaranteed individual rights. To what extent does the Constitution allow the government to regulate speech or guns, for example?1
In many cases, judicial precedent informs or controls the answer (more on that later). But absent precedent, there are really only two potential answers to the question of how to determine exceptions to broadly worded constitutional rights: history or policy.
Generally speaking, the historical approach examines the laws, practices, and understandings from before and after ratification that may help the interpreter discern the meaning of the constitutional text and the principles embodied in that text. The policy approach rests on the philosophical or policy dispositions of the individual judge.
History, not policy, is the proper guide.
For more than 200 years, this Court has relied on history when construing vague constitutional text in all manner of constitutional disputes. For good reason. History can sup-
ply evidence of the original meaning of vague text. History is far less subjective than policy. And reliance on history is more consistent with the properly neutral judicial role than an approach where judges subtly (or not so subtly) impose their own policy views on the American people.
Judges are like umpires, as THE CHIEF JUSTICE has aptly explained. And in a constitutional system that counts on an independent Judiciary, judges must act like umpires. To be an umpire, the judge “must stick close to the text and the history, and their fair implications,” because there “is no principled way” for a neutral judge “to prefer any claimed human value to any other.” R. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 8 (1971). History establishes a “criterion that is conceptually quite separate from the preferences of the judge himself.” A. Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989). When properly applied, history helps ensure that judges do not simply create constitutional meaning “out of whole cloth.” A. Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1183 (1989).2
Absent precedent, therefore, history guides the interpretation of vague constitutional text. Of course, this Court has been deciding constitutional cases for about 230 years, so relevant precedent often exists. As the Court‘s opinions
over time amply demonstrate, precedent matters a great deal in constitutional interpretation.
I now turn to explaining how courts apply pre-ratifcation history, post-ratifcation history, and precedent when analyzing vague constitutional text.
A
Pre-ratifcation history. When interpreting vague constitutional text, the Court typically scrutinizes the stated intentions and understandings of the Framers and Ratifers of the Constitution (or, as relevant, the Amendments). The Court also looks to the understandings of the American people from the pertinent ratifcation era. Those intentions and understandings do not necessarily determine meaning, but they may be strong evidence of meaning. See generally, e. g.,
Especially for the original Constitution and the Bill of Rights, the Court also examines the pre-ratifcation history in the American Colonies, including pre-ratifcation laws and practices. And the Court pays particular attention to the historical laws and practices in the United States from Independence in 1776 until ratifcation in 1788 or 1791. Pre-ratifcation American history can shed light on constitutional meaning in various ways.
For example, some provisions of the Constitution use language that appeared in the Articles of Confederation or state constitutional provisions. And when the language that appeared in the Articles of Confederation or in state constitutions is the same as or similar to the language in the U. S. Constitution, the history of how people understood the language in the Articles or state constitutions can inform interpretation of that language in the U. S. Constitution. See, e. g., Moore v. Harper, 600 U. S. 1, 33 (2023) (the “Framers did not write the Elections Clause on a blank slate—they instead borrowed from the Articles of Confederation” as evidenced by their use of “closely parallel” language); District of Columbia v. Heller, 554 U. S. 570, 600–601 (2008) (“Our interpretation is confrmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment“); United States Steel Corp. v. Multistate Tax Comm‘n, 434 U. S. 452, 460, and n. 10 (1978) (“The history of interstate agreements under the Articles of Confederation suggests the same distinction between `treaties, alliances, and confederations’
Similarly, other pre-ratifcation national or state laws and practices may sometimes help an interpreter discern the meaning of particular constitutional provisions. Those pre-ratifcation American laws and practices formed part of the foundation on which the Framers constructed the Constitution and Bill of Rights. Indeed, the Constitution did not displace but largely co-exists with state constitutions and state laws, except to the extent they confict with federal law. See
On the other hand, some pre-ratifcation history can be probative of what the Constitution does not mean. The Framers drafted and approved many provisions of the Constitution precisely to depart from rather than adhere to certain pre-ratifcation laws, practices, or understandings.
For example, the “defects” of the Articles of Confederation inspired some of the key decisions made by the Framers in Philadelphia and by the First Congress in drafting the Bill of Rights.
The pre-ratifcation history of America‘s many objections to British laws and the system of oppressive British rule over the Colonies—identifed most prominently in the Declaration of Independence—can likewise inform interpretation of some of the crucial provisions of the original Constitution and Bill of Rights. Compare Declaration of Independence ¶11 (under British rule, the King “made Judges dependent on his Will alone, for the tenure of their offces, and the amount and payment of their salaries“) with
The Equal Protection Clause provides another example. Ratifed in 1868, that Clause sought to reject the Nation‘s history of racial discrimination, not to backdoor incorporate racially discriminatory and oppressive historical practices and laws into the Constitution. See generally Flowers v. Mississippi, 588 U. S. 284 (2019); Batson v. Kentucky, 476 U. S. 79 (1986); Loving v. Virginia, 388 U. S. 1 (1967); Brown v. Board of Education, 347 U. S. 483 (1954).
In short, pre-ratifcation American history—that is, pre-ratifcation laws, practices, and understandings—can inform interpretation of vague constitutional provisions in the original Constitution and Bill of Rights. The same principle of looking to relevant pre-ratifcation history applies when interpreting broadly worded language in the later amendments, including the Fourteenth Amendment ratifed in 1868. But in using pre-ratifcation history, courts must exercise care to rely only on the history that the Constitution actually incorporated and not on the history that the Constitution left behind.
B
Post-ratifcation history. As the Framers made clear, and as this Court has stated time and again for more than two
After ratifcation, the National Government and the state governments began interpreting and applying the Constitution‘s text. They have continued to do so ever since. As the national and state governments over time have enacted laws and implemented practices to promote the general welfare, those laws and practices have often refected and reinforced common understandings of the Constitution‘s authorizations and limitations.
Post-ratifcation interpretations and applications by government actors—at least when reasonably consistent and longstanding—can be probative of the meaning of vague constitutional text. The collective understanding of Americans who, over time, have interpreted and applied the broadly worded constitutional text can provide good guidance for a judge who is trying to interpret that same text decades or centuries later. See, e. g., Republican Party of Minn. v. White, 536 U. S. 765, 785 (2002) (a “universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional” (quotation marks omitted)); United States v. Midwest Oil Co., 236 U. S. 459, 472–473 (1915) (“offcers, law-makers and citizens naturally adjust themselves to any long-continued action” of the government “on the presumption that” unconstitutional “acts would not have been allowed to be so often repeated as to crystallize into a regular practice“); McPherson v. Blacker, 146 U. S. 1, 27 (1892) (when constitutional text is vague, “contemporaneous and subsequent practical construction are entitled to the greatest weight“).4
Although this Court‘s constitutional precedents routinely rely on post-ratifcation history, those precedents do not supply a one-size-fts-all answer to those various methodological questions. See, e. g., Noel Canning, 573 U. S., at 522–556; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610–611 (1952) (Frankfurter, J., concurring).
And I will not attempt to answer all of those questions here. Respected scholars are continuing to undertake careful analysis. See generally J. Alicea, Practice-Based Constitutional Theories, 133 Yale L. J. 568 (2023); R. Barnett & L. Solum, Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev. 433 (2023); M. DeGirolami, Traditionalism Rising, 24 J. Contemp. Legal Issues 9 (2023); S. Girgis, Living Traditionalism, 98 N. Y. U. L. Rev. 1477 (2023); W. Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019); C. Bradley, Doing Gloss, 84 U. Chi. L. Rev. 59 (2017); C. Bradley & T. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012); A. Amar, America‘s
Importantly, the Framers themselves intended that post-ratifcation history would shed light on the meaning of vague constitutional text. They understood that some constitutional text may be “more or less obscure and equivocal” such that questions “daily occur in the course of practice.”
From early on, this Court followed Madison‘s lead. In 1819, in one of its most important decisions ever, the Court addressed the scope of Article I‘s Necessary and Proper Clause. McCulloch v. Maryland, 4 Wheat. 316 (1819). Writing for the Court, Chief Justice Marshall invoked post-ratifcation history to conclude that Congress‘s authority to establish a national bank could “scarcely be considered as an open question.” Id., at 401. The constitutionality of the national bank had “been recognised by many successive legislatures,” and an “exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.” Ibid. Marshall added: The “respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice.” Ibid.
In relying on post-ratifcation history as a proper tool to discern constitutional meaning, Madison and Marshall make for a formidable duo. Moving from distant American history to more recent times, one can add Justice Scalia. Throughout his consequential 30-year tenure on this Court, Justice Scalia repeatedly emphasized that constitutional interpretation must take account of text, pre-ratifcation history, and post-ratifcation history—the last of which he often referred to as “tradition.” In his words, when judges interpret vague or broadly worded constitutional text, the “traditions of our people” are “paramount.” McDonald v. Chicago, 561 U. S. 742, 792 (2010) (Scalia, J., concurring). Constitutional interpretation should refect “the principles adhered to, over time, by the American people, rather than those favored by the personal (and necessarily shifting) philosophical dispositions of a majority of this Court.” Rutan v. Republican Party of Ill., 497 U. S. 62, 96 (1990) (Scalia, J., dissenting).
The U. S. Reports are well stocked with Scalia opinions looking to post-ratifcation history and tradition.5 In Heller,
Justice
Heller echoed years of earlier Scalia opinions. To take one: “Where the meaning of a constitutional text (such as `the freedom of speech‘) is unclear, the widespread and long-accepted practices of the American people are the best indication of what fundamental beliefs it was intended to enshrine.” McIntyre v. Ohio Elections Comm‘n, 514 U. S. 334, 378 (1995) (Scalia, J., dissenting). Or another: A “venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle” of “adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court‘s principles are to be formed. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices is to be figured out.” Rutan, 497 U. S., at 95–96 (Scalia, J., dissenting) (emphasis in original).
As leading actors and theorists in the earliest and latest chapters of the American constitutional story, Madison, Marshall, and Scalia made clear that courts should look to post-ratifcation history as well as pre-ratifcation history to interpret vague constitutional text.
For more than two centuries—from the early 1800s to this case—this Court has done just that. The Court has repeatedly employed post-ratifcation history to determine the meaning of vague constitutional text. Reliance on post-ratifcation history “has shaped scores of Court cases spanning all domains of constitutional law, every era of the nation‘s history, and Justices of every stripe.” S. Girgis, Living Traditionalism, 98 N. Y. U. L. Rev. 1477, 1480 (2023); see, e. g., Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd., 601 U. S. 416, 441–445 (2024) (Kagan, J., concurring); Trump v. Anderson, 601 U. S. 100, 113–115 (2024) (per curiam); Moore v. Harper, 600 U. S. 1, 22, 32–34 (2023); Kennedy v. Bremerton School Dist., 597 U. S. 507, 535–536, 540–541, and n. 6 (2022); New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 35–37, 50–70 (2022); City of Austin v. Reagan Nat. Advertising of Austin, LLC, 596 U. S. 61, 75 (2022); Houston Community College System v. Wilson, 595 U. S. 468, 474–477 (2022); PennEast Pipeline Co. v. New Jersey, 594 U. S. 482, 494–497, 508 (2021); TransUnion LLC v. Ramirez, 594 U. S. 413, 424–425, 432–434 (2021); Torres v. Madrid, 592 U. S. 306, 314 (2021); Trump v. Mazars USA, LLP, 591 U. S. 848, 858–862 (2020); Chiafalo v. Washington, 591 U. S. 578, 592–597 (2020); American Legion v. American Humanist Assn., 588 U. S. 29, 58–66 (2019); Zivotofsky v. Kerry, 576 U. S. 1, 15–17, 23–28 (2015); Town of Greece v. Galloway, 572 U. S. 565, 575–579 (2014); District of Columbia v. Heller, 554 U. S. 570, 605–619, 626–628 (2008); Crawford v. Washington, 541 U. S. 36, 47–50 (2004); Apprendi v. New Jersey, 530 U. S. 466, 481–483, and n. 10 (2000); Medina v. California, 505 U. S. 437, 445–448 (1992); Holland v. Illinois, 493 U. S. 474, 481–482, and n. 1 (1990); Marsh v. Chambers, 463 U. S. 783, 786–792 (1983); Dames & Moore v. Regan, 453 U. S. 654, 678–682 (1981); Walz v. Tax Comm‘n of City of New York, 397 U. S. 664, 676–680 (1970); Powell v. McCormack, 395 U. S. 486, 522, 541–547 (1969); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610–613 (1952) (Frankfurter, J., concurring); United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 321–329 (1936); The Pocket Veto Case, 279 U. S. 655, 688–691 (1929); Myers v. United States, 272 U. S. 52, 155–158 (1926); United States v. Midwest Oil Co., 236 U. S. 459, 469–475 (1915); Marshall Field & Co. v. Clark, 143 U. S. 649, 683–692 (1892); Murray‘s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 279–280 (1856); McCulloch v. Maryland, 4 Wheat. 316, 400–401 (1819).6
C
Precedent. With a Constitution and a Supreme Court that are both more than
Precedent is fundamental to day-to-day constitutional decisionmaking in this Court and every American court. The “judicial Power” established in
Courts must respect precedent, while at the same time recognizing that precedent on occasion may appropriately be overturned. See, e. g., Brown, 347 U. S. 483; West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937); see also Ramos v. Louisiana, 590 U. S. 83, 115–132 (2020) (KAVANAUGH, J., concurring in part). In light of the signifcant amount of Supreme Court precedent that has built up over time, this Court and other courts often decide constitutional cases by reference to those extensive bodies of precedent.
Even then, however, text and history still matter a great deal. When determining how broadly or narrowly to read a precedent; when determining whether to extend, limit, or narrow a precedent; or in relatively infrequent cases, when determining whether to overrule a precedent, a court often will consider how the precedent squares with the Constitution‘s text and history. Therefore, the text, as well as pre-ratifcation and post-ratifcation history, may appropriately function as a gravitational pull on the Court‘s interpretation of precedent. See Free Enterprise Fund v. Public Company Accounting Oversight Bd., 537 F. 3d 667, 698 (CADC 2008) (Kavanaugh, J., dissenting) (“We should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history“).
But the frst stop in this Court‘s constitutional decisionmaking is the Court‘s precedents—the accumulated wisdom of jurists from Marshall and Story to Harlan and Taft; from Hughes and Black to Jackson and White; from Rehnquist and O‘Connor to Kennedy and Scalia; and so on.
III
Some say that courts should determine exceptions to broadly worded individual rights, including the Second Amendment, by looking to policy. Uphold a law if it is a good idea; strike it down if it is not. True, the proponents of a policy-based approach to interpretation of broadly worded or vague constitutional text usually do not say so explicitly (although some do). Rather, they support a balancing approach variously known as means-end scrutiny, heightened scrutiny, tiers of scrutiny, rational basis with bite, or strict or intermediate or intermediate-plus or rigorous or skeptical scrutiny. Whatever the label of the day, that balancing approach is policy by another name. It requires judges to weigh the benefts against the burdens of a law and to uphold the law as constitutional if, in the judge‘s view, the law is suffciently reasonable or important. See M. Barnes & E. Chemerinsky, The Once and Future Equal Protection Doctrine?, 43 Conn. L. Rev. 1059, 1080 (2011) (“The levels of scrutiny are essentially balancing tests“).
The balancing tests (heightened scrutiny and the like) are a relatively modern judicial innovation in constitutional decisionmaking. The “tiers of scrutiny have no basis in the text or original meaning of the Constitution.” J. Alicea & J. Ohlendorf, Against the Tiers of Constitutional Scrutiny, National Affairs 72, 73 (2019). And before the late 1950s, “what we would now call strict judicial scrutiny did not exist.” R. Fallon, The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny 30 (2019).
The Court “appears to have adopted” heightened-scrutiny tests “by accident” in the 1950s and 1960s in a series of Communist speech cases, “rather than as the result of a considered judgment.” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 125 (1991) (Kennedy, J., concurring in judgment). The Court has employed balancing only in discrete areas of constitutional law—and even in those cases, history still tends to play a far larger role than overt judicial policymaking.7
To be clear, I am not suggesting that the Court overrule cases where the Court has applied those heightened-scrutiny tests. But I am challenging the notion that those tests are the ordinary approach to constitutional interpretation. And I am arguing against extending those tests to new areas, including the Second Amendment.
One major problem with using a balancing approach to determine exceptions to constitutional rights is that it requires highly subjective judicial evaluations of how important a law is—at least unless the balancing test itself incorporates history, in which case judges might as well just continue to rely on history directly.
The subjective balancing approach forces judges to act more like legislators who decide what the law should be, rather than judges who “say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is because the
balancing approach requires judges to weigh the benefts of a law against its burdens—a value-laden and political task that is usually reserved for the political branches. And that power in essence vests judges with “a roving commission to second-guess” legislators and administrative offcers “concerning what is best for the country.” W. Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 698 (1976). Stated otherwise, when a court “does not have a solid textual anchor or an established social norm from
Moreover, the balancing approach is ill-defned. Some judges will apply heightened scrutiny with a presumption in favor of deference to the legislature. Other judges will apply heightened scrutiny with a presumption in favor of the individual right in question. Because it is unmoored, the balancing approach presents the real “danger” that “judges will mistake their own predilections for the law.” A. Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 863 (1989). Under the balancing approach, to use Justice Scalia‘s characteristically vivid description, if “We The Court conclude that They The People‘s answers to a problem” are unwise, “we are free to intervene,” but if we “think the States may be on to something, we can loosen the leash.” McDonald v. Chicago, 561 U. S. 742, 803 (2010) (concurring opinion) (quotation marks omitted).
The balancing approach can be antithetical to the principle that judges must act like umpires. It turns judges into players. Justice Black once protested that the Court should not balance away bedrock free speech protections for the perceived policy needs of the moment. He argued that “the balancing approach” “disregards all of the unique features of our Constitution” by giving “the Court, along with Congress, a greater power, that of overriding the plain commands of the Bill of Rights on a fnding of weighty public interest.” H. Black, The Bill of Rights, 35 N. Y. U. L. Rev. 865, 878–879 (1960). Like Justice Black, the Court in Heller cautioned that a “constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” 554 U. S. 570, 634 (2008).
Some respond that history can be diffcult to decipher. It is true that using history to interpret vague text can require “nuanced judgments,” McDonald, 561 U. S., at 803–804 (Scalia, J., concurring), and is “sometimes inconclusive,” Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev., at 864. But at a minimum, history tends to narrow the range of possible meanings that may be ascribed to vague constitutional language. A history-based methodology supplies direction and imposes a neutral and democratically infused constraint on judicial decisionmaking.
The historical approach is not perfect. But “the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution-writing; but whether it is the best means available in an imperfect world.” McDonald, 561 U. S., at 804 (Scalia, J., concurring) (emphasis in original). And the historical approach is superior to judicial policymaking. The historical approach “depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor.” Ibid. Moreover, the historical approach “intrudes less upon the democratic process because the rights it acknowledges are those established by a constitutional history formed by democratic decisions; and the rights it fails to acknowledge are left to be democratically adopted or rejected by the people.” Id., at 805.
IV
This Court‘s Second Amendment jurisprudence has carefully followed and reinforced the Court‘s longstanding approach
In Heller, the Court began with the baseline point that the Second Amendment textually guarantees an individual right. The Court then explained that the Second Amendment right is, of course, “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” and is subject to “important” limitations. 554 U. S. 570, 626–627 (2008).
Although Heller declined to “undertake an exhaustive historical analysis,” it recognized a few categories of traditional exceptions to the right. Id., at 626. For example, Heller indicated that: (i) “prohibitions on carrying concealed weapons were lawful“; (ii) the Second Amendment attaches only to weapons “in common use” because “that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons“; and (iii) “longstanding prohibitions on the possession of frearms by felons and the mentally ill, or laws forbidding the carrying of frearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifcations on the commercial sale of arms” are presumptively constitutional. Id., at 626–627 (quotation marks omitted).
In McDonald, the Court held that the Second Amendment was incorporated against the States. In so holding, the Court reiterated the presumed constitutionality of the “longstanding regulatory measures” identifed in Heller. 561 U. S. 742, 786 (2010) (plurality opinion).
Then, in Bruen, the Court repeated that the “Nation‘s historical tradition of frearm regulation” guides the constitutional analysis of gun regulations and exceptions to the right to bear arms. 597 U. S. 1, 17 (2022); see id., at 79–81 (KAVANAUGH, J., concurring).
This Court‘s approach in those three recent Second Amendment cases—and in the Court‘s opinion today—is entirely consistent with the Court‘s longstanding reliance on history and precedent to determine the meaning of vague constitutional text. Heller rested on “constitutional text and history,” ante, at 691 (quotation marks omitted), and laid the foundation for McDonald and then Bruen.
In today‘s case, the Court carefully builds on Heller, McDonald, and Bruen. The Court applies the historical test that those precedents have set forth—namely, “whether the new law is relevantly similar to laws that our tradition is understood to permit.” Ante, at 692 (quotation marks omitted). The Court examines “our historical tradition of frearm regulation,” ante, at 691 (quotation marks omitted), and correctly holds that America‘s “tradition of frearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others,” ante, at 700. The law before us “fts neatly within the tradition the surety and going armed laws represent.” Ante, at 698.
As the Court‘s decision today notes, Second Amendment jurisprudence is still in the relatively early innings, unlike the First, Fourth, and Sixth Amendments, for example. That is because the Court did not have occasion to recognize the Second Amendment‘s individual right until recently. See generally Heller v. District of Columbia, 670 F. 3d 1244, 1269–1296 (CADC 2011) (Kavanaugh, J., dissenting). Deciding constitutional cases in a still-developing area of this Court‘s jurisprudence can sometimes be diffcult. But that is not a
* * *
As exemplifed by Heller, McDonald, Bruen, and the Court‘s opinion today, constitutional interpretation properly takes account of text, pre-ratifcation and post-ratifcation history, and precedent. Those are the tools of the trade for an American judge interpreting the American Constitution. Of course, diffcult subsidiary questions can arise about how to apply those tools, both generally and in particular cases. And in some cases, text, history, and precedent may point in somewhat different directions. In law as in life, nothing is perfect. But in Second Amendment cases as in other constitutional cases, text, history, and precedent must remain paramount.
UNITED STATES v. RAHIMI
602 U. S. 680 (2024)
BARRETT, J., concurring
Justice Barrett, concurring.
Despite its unqualifed text, the Second Amendment is not absolute. It codifed a pre-existing right, and pre-existing limits on that right are part and parcel of it. District of Columbia v. Heller, 554 U. S. 570, 595, 627 (2008). Those limits defne the scope of “the right to keep and bear arms” as it was originally understood; to identify them, courts must examine our “historical tradition of frearm regulation.” New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 17, 19 (2022). That evidence marks where the right stops and the State‘s authority to regulate begins. A regulation is constitutional only if the government affrmatively proves that it is “consistent with the Second Amendment‘s text and historical understanding.” Id., at 26.
Because the Court has taken an originalist approach to the Second Amendment, it is worth pausing to identify the basic premises of originalism. The theory is built on two core principles: that the meaning of constitutional text is fxed at the time of its ratifcation and that the “discoverable historical meaning . . . has legal signifcance and is authoritative in most circumstances.” K. Whittington, Originalism: A Critical Introduction, 82 Ford. L. Rev. 375, 378 (2013) (Whittington). Ratifcation is a democratic act that renders constitutional text part of our fundamental law, see
In Bruen, the Court took history beyond the founding era, considering gun regulations that spanned the 19th century. 597 U. S., at 50–70. I expressed reservations about the scope of that inquiry but concluded that the timing question did not matter to Bruen‘s holding. Id., at 81–83 (concurring opinion). It bears emphasis, however, that my questions were about the time period relevant
“Original history“—i. e., the generally dispositive kind—plays two roles in the Second Amendment context. It eluci-
dates how contemporaries understood the text—for example, the meaning of the phrase “bear Arms.” See Heller, 554 U. S., at 582–592. It also plays the more complicated role of determining the scope of the pre-existing right that the people enshrined in our fundamental law.* In Rahimi‘s case, the Court uses history in this latter way. Call this “original contours” history: It looks at historical gun regulations to identify the contours of the right.
Courts have struggled with this use of history in the wake of Bruen. One difficulty is a level of generality problem: Must the government produce a founding-era relative of the challenged regulation—if not a twin, a cousin? Or do founding-era gun regulations yield concrete principles that mark the borders of the right?
Many courts, including the Fifth Circuit, have understood Bruen to require the former, narrower approach. But Bruen emphasized that “analogical reasoning” is not a “regulatory straightjacket.” 597 U. S., at 30. To be consistent with historical limits, a challenged regulation need not be an updated model of a historical counterpart. Besides, imposing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us “a law trapped in amber.” Ante, at 691. And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a “use it or lose it” view of legislative authority. Such assumptions are flawed, and originalism does not require them.
“Analogical reasoning” under Bruen demands a wider lens: Historical regulations reveal a principle, not a mold. See, e. g., 597 U. S., at 28–29 (explaining that the Amendment does not apply only to the catalogue of arms that existed in the
Here, though, the Court settles on just the right level of generality: “Since the founding, our Nation‘s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” Ante, at 690; see also Kanter v. Barr, 919 F. 3d 437, 451, 464–465 (CA7 2019) (BARRETT, J., dissenting) (“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns“).
Justice Jackson, concurring.
This case tests our Second Amendment jurisprudence as shaped in particular by New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022). I disagree with the methodology of that decision; I would have joined the dissent had I been a Member of the Court at that time. See generally id., at 83–133 (Breyer, J., dissenting). But Bruen is now binding law. Today‘s decision fairly applies that precedent, so I join the opinion in full.
I write separately because we now have two years’ worth of post-Bruen cases under our belts, and the experiences of courts applying its history-and-tradition test should bear on our assessment of the workability of that legal standard. This case highlights the apparent difficulty faced by judges on the ground. Make no mistake: Today‘s effort to clear up “misunderst[andings],” ante, at 691, is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them.
I
The Court today expounds on the history-and-tradition inquiry that Bruen requires. Ante, at 691–692. We emphasize that the Second Amendment is “not . . . a law trapped in amber.” Ante, at 691. It “permits more than just those regulations identical to ones that could be found in 1791“; indeed, “a challenged regulation [that] does not precisely match its historical precursors . . . ‘still may be analogous enough to pass constitutional muster.‘” Ante, at 692 (quoting Bruen, 597 U. S., at 30). Gun regulations need only “comport with the principles underlying the Second Amendment.” Ante, at 692. These clarifying efforts are welcome, given the many questions Bruen left unanswered.
When this Court adopts a new legal standard, as we did in Bruen, we do not do so in a vacuum. The tests we establish bind lower court judges, who then apply those legal standards to the cases before them. In my view, as this Court thinks of, and speaks about, history‘s relevance to the interpretation of constitutional provisions,
The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen‘s madness.1 It isn‘t just that Bruen‘s
history-and-tradition test is burdensome (though that is no small thing to courts with heavier caseloads and fewer resources than we have). The more worrisome concern is that lower courts appear to be diverging in both approach and outcome as they struggle to conduct the inquiry Bruen requires of them. Scholars report that lower courts applying Bruen‘s approach have been unable to produce “consistent, principled results,” Brief for Second Amendment Law Scholars as Amici Curiae 4, and, in fact, they “have come to conflicting conclusions on virtually every consequential Second Amendment issue to come before them,” id., at 4–5; see also id., at 5–6 (collecting examples). Given this, it appears indisputable that, after Bruen, “confusion plagu[es] the lower courts.” Id., at 6.
II
This discord is striking when compared to the relative harmony that had developed
ated by Bruen‘s assignment“); United States v. Love, 647 F. Supp. 3d 664, 670 (ND Ind. 2022) (“By . . . announcing an inconsistent and amorphous standard, the Supreme Court has created mountains of work for district courts that must now deal with Bruen-related arguments in nearly every criminal case in which a firearm is found“).
that incorporated means-end scrutiny. See Bruen, 597 U. S., at 103 (Breyer, J., dissenting).
Rejecting that “two-step approach” as having “one step too many,” id., at 19, the Bruen majority subbed in another two-step evaluation. Courts must, first, determine whether “the Second Amendment‘s plain text covers an individual‘s conduct.” Id., at 24. If it does, “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.” Ibid.
No one seems to question that “[h]istory has a role to play in Second Amendment analysis.” Ante, at 706 (SOTOMAYOR, J., concurring). But, per Bruen, courts evaluating a Second Amendment challenge must consider history to the exclusion of all else. This means legislators must locate and produce—and courts must sift through—troves of centuries-old documentation looking for supportive historical evidence.2 This very case provides a prime example of the pitfalls of Bruen‘s approach. Having been told that a key marker of a constitutional gun regulation is “a well-established and representative historical analogue,” Bruen, 597 U. S., at 30 (emphasis deleted), Rahimi argued below that “there is little or no historical evidence suggesting disarmament for those who committed domestic violence; and there is certainly no tradition of disarming people subject to a no-contact order related to domestic violence.” Supp. Brief for Appellant in No. 21–11001 (CA5), p. 22 (emphasis deleted). The Government then proffered what it maintained were sufficient historical analogues to
(CA5), pp. 33, n. 2, 37–41. But the Fifth Circuit concluded that the federal statute was unconstitutional because the Government‘s analogues were not “‘relevantly similar.‘” 61 F. 4th 443, 460–461 (2023).
Neither the parties nor the Fifth Circuit had the benefit of today‘s decision, in which we hold that the Government had in fact offered “ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” Ante, at 693. But even setting aside whether the historical examples the Government found were sufficiently analogous, just canvassing the universe of historical records and
And the unresolved questions hardly end there. Who is protected by the Second Amendment, from a historical perspective? To what conduct does the Second Amendment‘s plain text apply? To what historical era (or eras) should
courts look to divine a historical tradition of gun regulation? How many analogues add up to a tradition? Must there be evidence that those analogues were enforced or subject to judicial scrutiny? How much support can nonstatutory sources lend? I could go on—as others have. See, e. g., United States v. Daniels, 77 F. 4th 337, 358–360 (CA5 2023) (Higginson, J., concurring) (providing a similarly nonexhaustive list). But I won‘t.
III
Maybe time will resolve these and other key questions. Maybe appellate courts, including ours, will find a way to “[b]rin[g] discipline to the increasingly erratic and unprincipled body of law that is emerging after Bruen.” J. Blocher & E. Ruben, Originalism-by-Analogy and Second Amendment Adjudication, 133 Yale L. J. 99, 174 (2023). Indeed, “[m]any constitutional standards involve undoubted gray areas,” and “it normally might be fair to venture the assumption that case-by-case development [will] lead to a workable standard.” Garcia, 469 U. S., at 540 (internal quotation marks and alteration omitted). By underscoring that gun regulations need only “comport with the principles underlying the Second Amendment,” ante, at 692 (emphasis added), today‘s opinion inches that ball forward.
But it is becoming increasingly obvious that there are miles to go.4 Meanwhile, the Rule of Law suffers. That ideal—key to our democracy—thrives on legal standards that foster stability, facilitate consistency, and promote pre-
dictability. So far, Bruen‘s history-focused test ticks none of those boxes.
* * *
I concur in today‘s decision applying Bruen. But, in my view, the Court should
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,
I
Just as important as
In addition,
Despite
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
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.
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
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
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
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
III
A
It is undisputed that
It is
B
The Government fails to carry its burden of proving that
The Government‘s failure is unsurprising given that
tury,” 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
1
The Government does not offer a single historical regulation that is relevantly similar to
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.
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 self-same “dangerous” person laws to chip away at that Amendment‘s guarantee. Even on their own terms, laws targeting “dangerous” persons cannot support
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
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 Westmorland 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,
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
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 preexisting 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 citi-
zens 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 Offcial 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
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 afeld. The Government points to an assortment of frearm regulations, covering everything from storage practices to treason and mental illness. They are all irrelevant for purposes of central considerations
when comparing modern and historical regulations are whether they impose a comparable burden
that is comparably justifed.
Id., at 29 (emphasis deleted; internal quota-tion marks omitted). The Government‘s evidence touches on one or none of these considerations.
The Government‘s reliance on frearm storage laws is a helpful example. These laws penalized the improper storage of frearms 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
In fact, the Court already reached a similar conclusion in Heller. The Court was tasked with comparing laws imposing a small fne 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 fne and forfeiture is not equivalent to the District of Columbia‘s handgun ban, it certainly falls short of
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 frearm 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 codifes a right with a historically fxed meaning.
Id., at 28. Accordingly, history is our reference 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 justifcation
between laws punishing frearm storage practices and conduct suggested that he would not use [frearms] responsibly.
Brief for United States 24. The Government, however, does not even attempt to ground that justifcation in historical evidence. See infra, at 774.
The Government‘s proposed justifcation is also far too general. Nearly all frearm regulations can be cast as preventing irresponsible
or unft
persons from accessing frearms. In addition, to argue that a law limiting access to frearms is justifed by the fact that the regulated groups should not have access to frearms is a logical merry-go-round. As the Court has made clear, such overly broad judgments cannot suffce. 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 defned 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 defnition 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 justifed because they both prevent unft persons from accessing frearms would render our comparable-justifcation inquiry toothless.5
In sum, the Government has not identifed any historical regulation that is relevantly similar to
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 (1618). If someone received a surety demand, he was required to go to a court or judicial offcer 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). Specifcally, the person providing sureties was required to keep the
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 fnd 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 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 ratifcation refect 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 fnd suffcient 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 justifcation with
By contrast, 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) (affrming conviction of a business owner under possession
broadly, upholding convictions where a person picked up . . . three frearms for a few seconds to inspect
each, United States v. Matthews, 520 F. 3d 806, 807 (CA7 2008), or made direct contact with the frearm by sitting on it,
United States v. Johnson, 46 F. 4th 1183, 1189 (CA10 2022). They have also construed constructive possession
of a frearm, 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, in or affecting commerce
and receiv[ing] any frearm or ammunition which has been shipped or transported in interstate or foreign commerce.
had previously traveled in interstate commerce
); United States v. Lemons, 302 F. 3d 769, 772 (CA7 2002) (affrming conviction under 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
These sweeping prohibitions are criminally enforced. To violate the statute is a felony, punishable by up to 15 years.
The combination of the Government‘s sweeping view of the frearms and ammunition within its regulatory reach and the broad prohibition on any conduct regarding covered frearms and ammunition makes just walk away
and was prosecuted several years later for possessing frearms in Montana).
That combination of burdens places
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 fnancial 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
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 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
1
Despite the foregoing evidence, the Court insists that surety laws in fact support broad prohibitory regime
while
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
First, affray laws had a distinct justification from common Nusanc[e],
1 Hawkins, Pleas of the Crown, at 265, defned as the fghting 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 suffce. 1 R. Burn, The Justice of the Peace, and Parish Offcer 13 (2d ed. 1756). As relevant here, an affray included arming oneself with dan-gerous 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 defned 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 frearms 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 (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 265; see 1 Burn, Justice of the Peace, at 13. Affrays thus did not cover the very conduct
Second, affray laws did not impose a burden analogous to 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, 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 greater burden than
The imposition of credible threat
to an intimate partner or child.
[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
2
The Court recognizes that surety and affray laws on their own are not enough. determining whether a historical regulation is a proper analogue for a distinctly modern frearm 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 justifed.
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 justifcation—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 699. That means the Government need only fnd a historical law with a comparable justifcation to validate modern disarmament regimes. As a result, historical laws fning 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 ratifed the Second Amendment to preclude. 597 U. S., at 30.
Neither the Court nor the Government identifes a single historical regulation with a comparable burden and justifcation as
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 701-702. 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 701-702.
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 fnally tries to cram its dangerousness test into our precedents. It argues that assess whether modern frearms 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 justifcation 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 753-759.
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 unft 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 frearm regulation so long as it targets
unft
persons. And, of course, Congress would also dictate what unft
means and who qualifes. 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 [f]ounding-[e]ra applications
). At base, whether a person could keep, bear, or even possess frearms 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 unqualifed deference.
Bruen, 597 U. S., at 26.
The Government‘s own evidence exemplifes 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, in-cluding . . . 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 frearms 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, 554 U. S., at 634.
The Court rightly rejects the Government‘s approach by concluding that any modern regulation must be justifed by specifc historical regulations. See ante, at 694-699. 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 defned 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 frearm to threaten physical violence: criminal prosecution. Most States, including Texas, classify aggravated assault as a felony, punishable by up to 20 years’ imprisonment. See
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.
REPORTER‘S NOTE
The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:
p. 710, line 18: a party asks
is replaced with parties ask
p. 737, line 14: keep and
is inserted before bear
p. 750, line 11: the
is replaced with this
p. 763, line 19: the second his
is deleted
p. 770, line 18: lesser
is replaced with greater
Notes
limit[ing] the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry armsdo not justify
broadly prohibit[ing] the public carry of commonly used frearms for personal defense). None establishes that the particular regulation at issue here would have been within the bounds of the pre-existing Second Amendment right.
[W]e are a court of review, not of frst view). That said, I doubt that
ordinary, law-abiding citizensmerely to describe those who were unable to publicly carry a frearm in New York. See, e. g., 597 U. S., at 9, 15, 31-32, 71.