UNITED STATES v. RAHIMI
No. 22-915
SUPREME COURT OF THE UNITED STATES
June 21, 2024
OCTOBER TERM, 2023
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. RAHIMI
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 22-915. Argued November 7, 2023—Decided June 21, 2024
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. 5–17.
(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, Section 922(g)(8) fits within this tradition.
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. That right, however, “is not unlimited,” District of Columbia v. Heller, 554 U. S. 570, 626. The reach of the Second Amendment is not limited only to those arms that were in existence at the Founding. Heller, 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.” Id. 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.” Bruen, 597 U. S., 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. 5–8.
(b) Section 922(g)(8) survives Rahimi‘s challenge. Pp. 8–17.
(1) Rahimi‘s facial challenge to Section 922(g)(8) requires him to “establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U. S. 739, 745. Here, Section 922(g)(8) is constitutional as applied to the facts of Rahimi‘s own case. Rahimi has been found by a court to pose a credible threat to the physical safety of others, see
(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 firearms violence: the surety laws and the “going armed” laws. Surety laws were a form of “preventive justice,” 4 W. Blackstone, Commentaries on the Laws of England 251 (10th ed. 1787), which authorized magistrates to require individuals suspected of future misbehavior to post a bond. If an individual failed to post a bond, he would be jailed. If the individual did post a bond and then broke the peace, the bond would be forfeit.
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.” 4 Blackstone 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. 9–13.
(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. Section 922(g)(8) is not identical to these founding-era regimes, but it does not need to be. Like the surety and going armed laws, Section 922(g)(8)(C)(i) applies to individuals found by a court to threaten the physical safety of another. This prohibition is “relevantly similar” to those founding era regimes in both why and how it burdens the Second Amendment right. Id., at 29. Section 922(g)(8) restricts gun use to check demonstrated threats of physical violence, just as the surety and going armed laws do. Unlike the regulation struck down in Bruen, Section 922(g)(8) does not broadly restrict arms use by the public generally.
The burden that Section 922(g)(8) imposes on the right to bear arms also fits within the Nation‘s regulatory tradition. While the Court does not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse, see Heller, 554 U. S., at 626, Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another,
The Court‘s decisions in Heller and Bruen do not help Rahimi. While Section 922(g)(8) bars individuals subject to restraining orders from
(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 Section 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where the provision might raise constitutional concerns. P. 16.
(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.” P. 17.
61 F. 4th 443, reversed and remanded.
ROBERTS, C. J., delivered the opinion for 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, J., filed a dissenting opinion.
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 22-915
UNITED STATES, PETITIONER v. ZACKEY RAHIMI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 21, 2024]
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 firearm 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. attempted to leave, but Rahimi grabbed her by the wrist, dragged her back to his car, and shoved her in, causing her to strike her head against the dashboard. When he realized that a bystander was watching the altercation, Rahimi paused to retrieve a gun from under the pas
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 restraining 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
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 Section 922(g)(8)(C)(i), because it included a finding that Rahimi represented “a credible threat to the physical safety” of C. M. or her family. Id., at 2–3. The order also “explicitly prohibit[ed]” Rahimi from “the use, attempted use, or threatened use of physical force” against C. M., satisfying the independent basis for liability in Section 922(g)(8)(C)(ii). Id., at 3.
Rahimi moved to dismiss the indictment, arguing that Section 922(g)(8) violated on its face the Second Amendment right to keep and bear arms. No. 4:21–cr–00083 (ND Tex., May 7, 2021), ECF Doc. 17. Concluding that Circuit precedent foreclosed Rahimi‘s Second Amendment challenge, the District Court denied his motion. Rahimi then pleaded guilty. On appeal, he again raised his Second Amendment challenge. The appeal was denied, and Rahimi petitioned for rehearing en banc.
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.
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 this case, Section 922(g)(8) fits comfortably within this tradition.
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
“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
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 those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.
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
B
Bearing these principles in mind, we conclude that Section 922(g)(8) survives Rahimi‘s challenge.
1
Rahimi challenges Section 922(g)(8) on its face. This is the “most difficult challenge to mount successfully,” because it requires a defendant to “establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U. S. 739, 745 (1987). That means that to prevail, the Government need only demonstrate that Section 922(g)(8) is constitutional in some of its applications. And here the provision is constitutional as applied to the facts of Rahimi‘s own case.
Recall that Section 922(g)(8) provides two independent bases for liability.
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
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 such offence... shall not happen[,] by finding pledges or securities.” 4 Blackstone 251. In other words, the law authorized magistrates to require individuals suspected of future misbehavior to post a bond. Ibid. If an individual failed to post a bond, he would be jailed. See, e.g., Mass.
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,
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 armed” laws, a particular subset of the ancient common-law prohibition on affrays.
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
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, 996 A. 2d 974, 983 (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 of 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. Section 922(g)(8) is by no means identical to these founding era regimes, but it does not need to be. See Bruen, 597 U. S., at 30. Its prohibition on the possession of firearms by those found by a court to present a threat to others fits neatly within the tradition
Like the surety and going armed laws,
The burden Section 922(g)(8) imposes on the right to bear arms also fits within our regulatory tradition. While we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse, see Heller, 554 U. S., at 626, we note that Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another.
Moreover, like surety bonds of limited duration, Section 922(g)(8)‘s restriction was temporary as applied to Rahimi. Section 922(g)(8) only prohibits firearm possession so long as the defendant “is” subject to a restraining order. In Rahimi‘s case that is one to two years after his release from prison, according to
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 922(g)(8) bars individuals subject to restraining orders from possessing guns in the home, and in Heller we invalidated an “absolute prohibition of handguns... in the home.” 554 U. S., at 636; Brief for Respondent 32. But Heller never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home. In fact, our opinion stated that many such prohibitions, like those on the possession of firearms by “felons and the mentally ill,” are “presumptively lawful.” 554 U. S., at 626, 627, n. 26.
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).
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
4
In short, we have no trouble concluding that Section 922(g)(8) survives Rahimi‘s facial challenge. Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others. Section 922(g)(8) can be applied lawfully to Rahimi.
The dissent reaches a contrary conclusion, primarily on the ground that the historical analogues for Section 922(g)(8) are not sufficiently similar to place that provision in our historical tradition. The dissent does, however, acknowledge that Section 922(g)(8) is within that tradition when it comes to the “why” of the appropriate inquiry. The objection is to the “how.” See post, at 18 (opinion of THOMAS, J.). For the reasons we have set forth, however, we conclude that Section 922(g)(8) satisfies that part of the inquiry as well. See supra, at 7, 13–15. As we said in Bruen, a “historical twin” is not required. 597 U. S., at 30.
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. (emphasis deleted). 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 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where Section 922(g)(8) might raise constitutional concerns. See 61 F. 4th, at 459; id., at 465–467 (Ho, J., concurring). That error left the panel slaying a straw
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.”
61 F. 4th 443, reversed and remanded.
man.2
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
It is so ordered.
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 7-8. 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 8. 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 12. “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 13. 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 7 (emphasis added); see also ante, at 7-8 (“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
II
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 18 (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
This case lays bare the perils of the dissent‘s approach. Because the dissent concludes that “§
The Court today clarifies Bruen‘s historical inquiry and rejects the dissent‘s exacting historical test. I welcome that development. That being said, I remain troubled by Bruen‘s myopic focus on history and tradition, which fails to give full consideration to the real and present stakes of the problems facing our society today. In my view, the Second Amendment allows legislators “to take account of the serious problems posed by gun violence,” Bruen, 597 U. S., at 91 (Breyer, J., dissenting), not merely by asking what their predecessors at the time of the founding or Reconstruction thought, but by listening to their constituents and crafting new and appropriately tailored solutions. Under the means-end scrutiny that this Court rejected in Bruen but “regularly use[s] . . . in cases involving other constitutional provisions,” id., at 106, the constitutionality of §
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,
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 means-end scrutiny, §
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 6 (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 6.
In this case, no one questions that the law Mr. Rahimi challenges addresses individual conduct covered by the text
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“).
We have no authority to question that judgment. As judges charged with respecting the people‘s directions in the Constitution—directions that are “trapped in amber,” see ante, at 7—our only lawful role is to apply them in the cases that come before us. Developments in the world may
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 a party asks 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
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 6–7 (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. ___, and n. 1 (2020) (THOMAS, J., joined by KAVANAUGH, J., dissenting from denial of certiorari) (slip op., at 5, and n. 1); 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
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.
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 5-8. 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 17 (emphasis added). With these observations, I am pleased to concur.
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
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 and most important rule in constitutional interpretation is to heed the text—that is, the actual words of the Constitution—and to interpret that
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
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 upon the content of speech in a few limited areas“—including obscenity, defamation, fraud, and incitement. United States v. Stevens, 559 U. S. 460, 468 (2010) (quotation marks omitted). So too with respect to the Second Amendment: “Like most rights, the 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 supply 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
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-ratification
history, post-ratification history, and precedent when analyzing vague constitutional text.
A
Pre-ratification history. When interpreting vague constitutional text, the Court typically scrutinizes the stated intentions and understandings of the Framers and Ratifiers of the Constitution (or, as relevant, the Amendments). The Court also looks to the understandings of the American people from the pertinent ratification era. Those intentions and understandings do not necessarily determine meaning, but they may be strong evidence of meaning. See generally, e.g., The Federalist (C. Rossiter ed. 1961); Records of the Federal Convention of 1787 (M. Farrand ed. 1911); Debates on the Federal Constitution (J. Elliot ed. 1836).
Especially for the original Constitution and the Bill of Rights, the Court also examines the pre-ratification history in the American Colonies, including pre-ratification laws and practices. And the Court pays particular attention to the historical laws and practices in the United States from Independence in 1776 until ratification in 1788 or 1791. Pre-ratification 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
Similarly, other pre-ratification national or state laws and practices may sometimes help an interpreter discern the meaning of particular constitutional provisions. Those pre-ratification 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 conflict with federal law. See
On the other hand, some pre-ratification 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-ratification 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 Federalist No. 37, at 224 (J. Madison); see, e.g., id., at 226 (“the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it“); PennEast Pipeline Co. v. New Jersey, 594 U. S. 482, 508 (2021) (“When the Framers met in Philadelphia in the summer of 1787, they sought to create
The pre-ratification history of America‘s many objections to British laws and the system of oppressive British rule over the Colonies—identified 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 offices, and the amount and payment of their salaries“) with
This Court has recognized, for example, that no “purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed.” Bridges v. California, 314 U. S. 252, 265 (1941). Ratified as it was “while the memory of many oppressive English restrictions on the enumerated liberties was still fresh,” the Bill of Rights “cannot reasonably be taken as approving prevalent English practices.” Ibid.; see, e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 183 (2012) (“Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church” through the First Amendment‘s Establishment Clause); Powell v. Alabama, 287 U. S. 45, 60 (1932) (right to counsel under the Sixth Amendment reflected America‘s rejection of the English common law rule that a “person charged with treason or felony was denied the aid of counsel“).3
In short, pre-ratification American history—that is, pre-ratification 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-ratification history applies when interpreting broadly worded language in the later amendments, including the Fourteenth Amendment ratified in 1868. But in using pre-ratification 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-ratification history. As the Framers made clear, and as this Court has stated time and again for more than two centuries, post-ratification history—sometimes referred to as tradition—can also be important for interpreting vague constitutional text and determining exceptions to individual constitutional rights. When the text is vague and the pre-ratification history is elusive or inconclusive, post-ratification history becomes especially important. Indeed, absent precedent, there can be little else to guide a judge deciding a constitutional case in that situation, unless the judge simply defaults to his or her own policy preferences.
After ratification, the National Government and the state
Post-ratification 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) (“officers, 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-ratification history, those precedents do not supply a one-size-fits-all
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 Constitution (2005); C. Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519 (2003); M. McConnell, Tradition and Constitutionalism Before the Constitution, 1998 U. Ill. L. Rev. 173.
Importantly, the Framers themselves intended that post-ratification 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.” The Federalist No. 37, at 228-229. Madison explained that the meaning of vague text would be “liquidated and ascertained by a series of particular discussions and adjudications.” Id., at 229. In other words, Madison articulated the Framers’ expectation and intent that post-ratification history would be a proper and important tool to help constitutional interpreters determine the meaning of vague constitutional text.
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-ratification 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
In relying on post-ratification 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-ratification history, and post-ratification 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 reflect “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-ratification history and tradition.5 In Heller,
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
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-ratification history as well as pre-ratification 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-ratification history to determine the meaning of vague constitutional text. Reliance on post-ratification 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); Chiafalov. 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
Precedent. With a Constitution and a Supreme Court that are both more than two centuries old, this Court and other courts are rarely interpreting a constitutional provision for the first time. Rather, a substantial body of Supreme Court precedent already exists for many provisions of the Constitution.
Precedent is fundamental to day-to-day constitutional decisionmaking in this Court and every American court. The “judicial Power” established in Article III incorporates the principle of stare decisis, both vertical and horizontal. As Hamilton stated, to “avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents” that will “unavoidably swell to a very considerable bulk” and “serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, at 471 (A. Hamilton).
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 significant 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-ratification and post-ratification 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
But the first 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 benefits against the burdens of a law and to uphold the law as constitutional if, in the judge‘s view, the law is sufficiently 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“).
To begin, as I have explained, that kind of balancing approach to constitutional interpretation departs from what Framers such as Madison stated, what jurists such as Marshall and Scalia did, what judges as umpires should
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
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 benefits 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 officers “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 which to derive the general rule, its pronouncement appears uncomfortably like legislation.” A. Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1185 (1989).
Moreover, the balancing approach is ill-defined. 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
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 finding 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 difficult 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
IV
This Court‘s Second Amendment jurisprudence has carefully followed and reinforced the Court‘s longstanding approach to constitutional interpretation—relying on text, pre-ratification and post-ratification history, and precedent.
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 firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places
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” identified in Heller. 561 U. S. 742, 786 (2010) (plurality opinion).
Then, in Bruen, the Court repeated that the “Nation‘s historical tradition of firearm 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 6 (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 7 (quotation marks omitted). The Court examines “our historical tradition of firearm regulation,” ante, at 6 (quotation marks omitted), and correctly holds that America‘s “tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others,” ante, at 16. The law before us “fits neatly within the tradition the surety and going armed laws represent.” Ante, at 13-14.
As the Court‘s decision today notes, Second Amendment
*
*
*
As exemplified by Heller, McDonald, Bruen, and the Court‘s opinion today, constitutional interpretation properly takes account of text, pre-ratification and post-ratification history, and precedent. Those are the tools of the trade for an American judge interpreting the American Constitution. Of course, difficult 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.
Despite its unqualified text, the Second Amendment is not absolute. It codified 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 define the scope of “the right to bear arms” as it was originally understood; to identify them, courts must examine our “historical tradition of firearm 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 affirmatively 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 fixed at the time of its ratification and that the “discoverable historical meaning . . . has legal significance and is authoritative in most circumstances.” K. Whittington, Originalism: A Critical Introduction, 82 Ford. L. Rev. 375, 378 (2013) (Whittington). Ratification 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 to discerning the Second Amendment‘s original meaning—for instance, what is the post-1791 cutoff for discerning how the Second Amendment was originally understood? Id., at 82 (“How long after ratification may subsequent practice illuminate original public meaning?“). My doubts were not about whether “tradition,” standing alone, is dispositive. Id., at 83 (“[T]oday‘s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights“). As I have explained elsewhere, evidence of “tradition” unmoored from original meaning is not binding law. Vidal, 602 U. S., at ___ (BARRETT, J., concurring in part) (slip op., at 13–15). And scattered cases or regulations pulled from history may have little bearing on the meaning
“Original history“—i.e., the generally dispositive kind—plays two roles in the Second Amendment context. It elucidates 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
“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 18th century, but rather to all weapons satisfying the “general definition” of “bearable arms” (emphasis added)); id., at 30–31 (discussing the “sensitive places” principle that limits the right to public carry); cf. Vidal, 602 U. S., at ___ (BARRETT, J., concurring in part) (slip op., at 7–9); Whittington 386 (“The insight to be gleaned is not the authoritative status of the expected application, but the apparent rule at play given that such an application is expected to follow from it“). To be sure, a court must be careful not to read a principle at such a high level of generality that it waters down the right. Pulling principle from precedent, whether case law or history, is a standard feature of legal reasoning, and reasonable minds sometimes disagree about how broad or narrow the controlling principle should be.
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 5; 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 legisla-
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 7, 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 7–8. We emphasize that the Second Amendment is “not a law trapped in amber.” Ante, at 7. It “permits more than just those regulations identical to ones that could be found in 1791“; indeed, “a challenged regulation [that] does not precisely
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, we should be mindful that our common-law tradition of promoting clarity and consistency in the application of our precedent also has a lengthy pedigree. So when courts signal they are having trouble with one of our standards, we should pay attention. Cf. Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 538–539 (1985).
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
This discord is striking when compared to the relative harmony that had developed prior to Bruen. To be sure, our decision in District of Columbia v. Heller, 554 U. S. 570 (2008), which first recognized an individual right to keep and bear arms for self-defense, see id., at 628, was disruptive in its own way. After all, before Heller, “[t]he meaning of the Second Amendment ha[d] been considered settled by courts and legislatures for over two centuries,” and “judges and legislators properly believed . . . that the Second Amendment did not reach possession of firearms for purely private activities.” Id., at 676, n. 38 (Stevens, J., dissenting). Nonetheless, after Heller, lower courts took up the necessary work of reviewing burdens on this newly unearthed right. By the time this Court decided Bruen, every court of appeals evaluating whether a firearm regulation was consistent with the Second Amendment did so using a two-step framework 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 4 (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
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 8. But even setting aside whether the historical examples the Government found were sufficiently analogous, just canvassing the universe of historical records and gauging the sufficiency of such evidence is an exceedingly difficult task.3
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
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 predictability. So far, Bruen‘s history-focused test ticks none of those boxes.
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I concur in today‘s decision applying Bruen. But, in my view, the Court should also be mindful of how its legal standards are actually playing out in real life. We must remember that legislatures, seeking to implement meaningful reform for their constituents while simultaneously respecting the Second Amendment, are hobbled without a clear, workable test for assessing the constitutionality of their proposals. See Tr. of Oral Arg. 54–57; cf. Bruen, 597 U. S., at 90–91 (Breyer, J., dissenting). And courts, which are currently at sea when it comes to evaluating firearms legislation, need a solid anchor for grounding their constitutional pronouncements. The public, too, deserves clarity when this Court interprets our Constitution.
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
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
When considering whether a modern regulation is consistent with historical regulations and thus overcomes the presumption against firearms restrictions, our precedents “point toward at least two metrics [of comparison]: how and why the regulations burden a law-abiding citizen‘s right to armed self-defense.” Id., at 29. A historical law must satisfy both considerations to serve as a comparator. See ibid. While a historical law need not be a “historical twin,” it must be “well-established and representative” to serve as a historical analogue. Id., at 30 (emphasis deleted).
In some cases, “the inquiry [is] fairly straightforward.” Id., at 26. For instance, “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.” Id., at 26–27.
Under our precedent, then, we must resolve two questions to determine if
III
A
It is undisputed that
It is also undisputed that the Second Amendment applies to Rahimi. By its terms, the Second Amendment extends to “‘the people,‘” and that “term unambiguously refers to all members of the political community, not an unspecified subset.” Id., at 580. The Second Amendment thus recognizes a right “guaranteed to ‘all Americans.‘” Bruen, 597 U. S., at 70 (quoting Heller, 554 U. S., at 581). Since Rahimi is a member of the political community, he falls within the Second Amendment‘s guarantee.
B
The Government fails to carry its burden of proving that
The Government‘s failure is unsurprising given that
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,
At first glance, these laws targeting “dangerous” persons might appear relevant. After all, if the Second Amendment right was historically understood to allow an official to disarm anyone he deemed “dangerous,” it may follow that modern Congresses can do the same. Yet, historical context compels the opposite conclusion. The Second Amendment stems from English resistance against “dangerous” person laws.
The sweeping disarmament authority wielded by English officials during the 1600s, including the Militia Act of 1662, prompted the English to enshrine an individual right to keep and bear arms. “[T]he Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents.” Heller, 554 U. S., at 592. Englishmen, as a result, grew “to be extremely wary of concentrated military forces run by the state and to be jealous of their arms.” Id., at 593. Following the Glorious Revolution, they “obtained an assurance . . . in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed.” Ibid.
The English Bill of Rights “has long been understood to be the predecessor to our Second Amendment.” Ibid. In fact, our Founders expanded on it and made the Second Amendment even more protective of individual liberty. The English Bill of Rights assured Protestants “Arms for their Defence,” but only where “suitable to their Conditions and as allowed by Law.” 1 Wm. & Mary, ch. 2, (1688), in 6 Statutes of the Realm 143. The Second Amendment, however, contains no such qualifiers and protects the right of “the people” generally. In short, laws targeting “dangerous” persons led to the Second Amendment. It would be passing strange to permit the Government to resurrect those self-
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 (“The fanatics . . . are high and insolent, and threaten all loyal people; they will soon be in arms“). In response, the Crown took measures to root out suspected rebels, which
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included “disarm[ing] all factious and seditious spirits.” Id., at 538 (Nov. 1, 1662). For example, following “turbulency and difficulties” arising from the Conventicles Act of 1670, which forbade religious nonconformists from assembling, the lord mayor of London pressed that “a special warrant or commission [was] necessary” empowering commissioners to “resist, fight, kill, and execute such rebels.” Calendar of State Papers, Domestic Series, 1670, p. 236 (May 25, 1670) (M. Green ed. 1895) (emphasis deleted). King Charles II ordered the lord mayor “to make strict search in the city and precincts for dangerous and disaffected persons, seize and secure them and their arms, and detain them in custody till our further pleasure.” Id., at 237 (May 26, 1670).
History repeated itself a few decades later. In 1701, King William III declared that “great quantities of arms, and other provisions of war” had been discovered in the hands of “papists and other disaffected persons, who disown [the] government,” and that such persons had begun to assemble “in great numbers . . . in the cities of London and Westminster.” Calendar William III 233. He ordered the lord mayor of London and the justices of the peace to “secur[e] the government” by disarming “any persons whom they judge[d] dangerous,” including “any papist, or reputed papist.” Id., at 233-234 (emphasis deleted). Similar disarmaments targeting “Papists and Non-jurors dangerous to the peace of the kingdom” continued into the 1700s. Privy Council to the Earl of Carlisle (July 30, 1714), in Historical Manuscripts Comm‘n, Manuscripts of the Earl of Westmoreland et al. 10th Report, Appx., Pt. 4, p. 343 (1885). As before, disarmament was designed to stifle “wicked conspirac[ies],” such as “raising a Rebellion in this Kingdom in favour of a Popish Pretender.” Lord Lonsdale to Deputy Lieutenants of Cumberland (May 20, 1722), in Historical Manuscripts Commission, Manuscripts of the Earl of Carlisle, 15th Report, Appx., Pt. 6, pp. 39-40 (1897).
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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 1453 (J. Kaminski & G. Saladino eds. 2000) (Documentary History). Second, Anti-Federalists at the Pennsylvania convention unsuccessfully proposed a Bill of Rights providing a “right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game.” 2 id., at 597-598, ¶7 (M. Jensen ed. 1976). The Anti-Federalists’ Bill of Rights would also state that “no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.”
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Id., at 598.
These proposals carry little interpretative weight. To begin with, it is “dubious to rely on [drafting] history to interpret a text that was widely understood to codify a 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
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the law against carrying concealed weapons“). Sources that do discuss disarmament generally describe nonpeaceable citizens as those who threaten the public or government. For example, the Government quotes a Union General‘s order that “all loyal and peaceable citizens in Missouri will be permitted to bear arms.” Headquarters, Dept. of the Missouri, General Orders, No. 86 (Aug. 25, 1863), in The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, Ser. 1, Vol. 22, Pt. 2, p. 475 (1888). Yet, the Government fails to mention that the Union General‘s order addresses the “[l]arge numbers of men leaving the broken rebel armies . . . and returning to Missouri . . . with the purpose of following a career of plunder and murder.” Id., at 474. The order provided that “all those who voluntarily abandon[ed] the rebel cause” could return to Missouri, but only if they “surrender[ed] themselves and their arms,” “[took] the oath of allegiance and [gave] bond for their future good conduct.” Ibid. By contrast, “all loyal and peaceable citizens in Missouri w[ere] permitted to bear arms” to “protect themselves from violence” and “aid the troops.” Id., at 475. Thus, the term “loyal and peaceable” distinguished between the former rebels residing in Missouri who were disarmed to prevent rebellion and those citizens who would help fight against them.
The Government‘s smorgasbord of commentary proves little of relevance, and it certainly does not establish a “historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen, 597 U. S., at 19.
iii
The Government‘s remaining evidence is even further afield. The Government points to an assortment of firearm regulations, covering everything from storage practices to treason and mental illness. They are all irrelevant for purposes of
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when comparing modern and historical regulations are whether they “impose a comparable burden” that is “comparably justified.” Id., at 29 (emphasis deleted; internal quotation marks omitted). The Government‘s evidence touches on one or none of these considerations.
The Government‘s reliance on firearm storage laws is a helpful example. These laws penalized the improper storage of firearms with forfeiture of those weapons. See, e.g., Act of Mar. 1, 1783, ch. 46, 1782 Mass. Acts pp. 119-120. First, these storage laws did not impose a “comparable burden” to that of
In fact, the Court already reached a similar conclusion in Heller. The Court was tasked with comparing laws imposing “a small fine and forfeiture of the weapon” with the District of Columbia‘s ban on keeping functional handguns at home for self-defense, which was punishable by a year in prison. 554 U. S., at 633-634. We explained that the forfeiture laws were “akin to modern penalties for minor public-safety infractions like speeding or jaywalking.” Id., at 633. Such inconsequential punishment would not have “prevented a person in the founding era from using a gun to protect himself or his family.” Id., at 634. Accordingly, we concluded that the burdens were not equivalent. See id., at 633-634. That analysis applies here in full force. If a small fine and forfeiture is not equivalent to the District of Columbia‘s handgun ban, it certainly falls short of
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-
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defense is “the central component of the [Second Amendment] right,” then common sense dictates that it matters whether you can defend yourself with a firearm anywhere, only at home, or nowhere. Heller, 554 U. S., at 599 (emphasis deleted). And, the Government‘s suggestion ignores that we have repeatedly drawn careful distinctions between various laws’ burdens. See, e.g., id., at 632 (explaining that laws that “did not clearly prohibit loaded weapons . . . do not remotely burden the right of self-defense as much as an absolute ban on handguns“); see also Bruen, 597 U. S., at 48.
Our careful parsing of regulatory burdens makes sense given that the Second Amendment codifies a right with a “historically fixed meaning.” Id., at 28. Accordingly, history is our reference point and anchor. If we stray too far from it by eliding material differences between historical and modern laws, we “risk endorsing outliers that our ancestors would never have accepted.” Id., at 30 (internal quotation marks and alteration omitted).
Second, the Government offers no “comparable justification” between laws punishing firearm storage practices and
The Government‘s proposed justification is also far too general. Nearly all firearm regulations can be cast as preventing “irresponsible” or “unfit” persons from accessing firearms. In addition, to argue that a law limiting access to firearms is justified by the fact that the regulated groups should not have access to firearms is a logical merry-go-round. As the Court has made clear, such overly broad judgments cannot suffice. In Bruen, New York claimed it could effectively ban public carry because “the island of Manhattan [is] a ‘sensitive place.‘” 597 U. S., at 31. New
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York defined a “sensitive place” as “all places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.” Id., at 30-31 (internal quotation marks omitted). The Court rejected that definition as “far too broa[d]” as it “would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense.” Id., at 31. Likewise, calling a modern and historical law comparably justified because they both prevent unfit persons from accessing firearms would render our comparable-justification inquiry toothless.5
In sum, the Government has not identified any historical regulation that is relevantly similar to
2
This dearth of evidence is unsurprising because the Founders responded to the societal problem of interpersonal violence through a less burdensome regime: surety laws. Tracing back to early English history, surety laws were a preventative mechanism for ensuring an individual‘s future peaceable conduct. See D. Feldman, The King‘s Peace, the Royal Prerogative and Public Order, 47 Cambridge L. J. 101, 101-102 (1988); M. Dalton, The Countrey Justice 140-144 (1619). If someone received a surety demand, he was required to go to a court or judicial officer
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with one or more members of the community—i.e., sureties—and comply with certain conditions. 4 W. Blackstone, Commentaries on the Laws of England 249-250 (1769) (Blackstone). Specifically, the person providing sureties was required to “keep the peace: either generally . . . or . . . with regard to the person who crave[d] the security” until a set date. Id., at 250. If he kept the peace, the surety obligation dissolved on that predetermined date. See ibid. If, however, he breached the peace before that date, he and his sureties would owe a set sum of money. See Id., at 249-250. Evidence suggests that sureties were readily available. Even children, who “[we]re incapable of engaging themselves to answer any debt,” could still find “security by their friends.” Id., at 251.
There is little question that surety laws applied to the threat of future interpersonal violence. “[W]herever any private man [had] just cause to fear, that another w[ould] burn his house, or do him a corporal injury, by killing, imprisoning, or beating him . . . he [could] demand surety of the peace against such person.” Id., at 252; see also J. Backus, The Justice of the Peace 25 (1816) (providing for sureties when a person “stands in fear of his life, or of some harm to be done to his person or his estate” (emphasis deleted)).
Surety demands were also expressly available to prevent domestic violence. Surety could be sought by “a wife against her husband who threatens to kill her or beat her outrageously, or, if she have notorious cause to fear he will do either.” Id., at 254; see 1 W. Hawkins, Pleas of the Crown 253 (6th ed. 1777) (“[I]t is certain, that a wife may demand [a surety] against her husband threatening to beat her outrageously, and that a husband also may have it against his wife“). The right to demand sureties in cases of potential domestic violence was recognized not only by treatises, but also the founding-era courts. Records from before and after the Second Amendment‘s ratification reflect that spouses
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successfully demanded sureties when they feared future domestic violence. See, e.g., Records of the Courts of Quarter Sessions and Common Pleas of Bucks County, Pennsylvania, 1684-1700, pp. 80-81 (1943) (detailing surety demanded upon allegations that a husband was “abusive to [his wife] that she was afraid of her Life & of her Childrns lifes“); see also Heyn‘s Case, 2 Ves. & Bea. 182, 35 Eng. Rep. 288 (Ch. 1813) (1822) (granting wife‘s request to order her husband who committed “various acts of ill usage and threats” to “find sufficient sureties“); Anonymous, 1 S. C. Eq. 113 (1785) (order requiring husband to “enter into recognizance . . . with two sureties . . . for keeping the peace towards the complainant (his wife)“).
3
Although surety laws shared a common justification with
By contrast,
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Gant, 691 F. 2d 1159, 1162 (CA5 1982) (affirming conviction of a business owner under
Moreover,
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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 firearms and ammunition within its regulatory reach and the broad prohibition on any conduct regarding covered firearms and ammunition makes
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 ex-
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plained that surety laws merely “provide financial incentives for responsible arms carrying.” 597 U. S., at 59. “[A]n accused arms-bearer ‘could go on carrying without criminal penalty’ so long as he ‘post[ed] money that would be forfeited if he breached the peace or injured others.‘” Id., at 56-57 (quoting Wrenn v. District of Columbia, 864 F. 3d 650, 661 (CADC 2017); alteration in original). As a result, we held that surety laws were not analogous to New York‘s effective ban on public carry. 597 U. S., at 55. That conclusion is damning for
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
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
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1
Despite the foregoing evidence, the Court insists that surety laws in fact support
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
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“common Nusanc[e],” 1 Hawkins, Pleas of the Crown, at 135, defined as “the fighting of two or more persons in some public place, to the terror of his majesty‘s subjects,” 4 Blackstone 145. Even though an affray generally required “actual violence,” certain other conduct could suffice. 1 R. Burn, The Justice of the Peace, and Parish Officer 13 (2d ed. 1756). As relevant here, an affray included arming oneself “with dangerous and unusual weapons, in such a manner as [to] naturally cause a terror to the people“—i.e., “going armed.” Ibid. Many postfounding going armed laws had a self-defense exception: A person could “go armed with a[n] . . . offensive and dangerous weapon” so long as he had “reasonable cause to fear an assault or other injury.” Mass. Rev. Stat., ch. 134, §16 (1836); see also 1838 Terr. of Wis. Stat. §16, p. 381; 1851 Terr. of Minn. Rev. Stat., ch. 112, §18.
Affrays were defined by their public nature and effect. An affray could occur only in “some public place,” and captured only conduct affecting the broader public. 4 Blackstone 145. To that end, going armed laws did not prohibit carrying firearms at home or even public carry generally. See Bruen, 597 U. S., at 47-50. Instead, they targeted only public carry that was “accompanied with such circumstances as are apt to terrify the people.” 1 Burn, Justice of the Peace, at 13; see Bruen, 597 U. S., at 50 (explaining that going armed laws “prohibit bearing arms in a way that spreads ‘fear’ or ‘terror’ among the people“).
Affrays were intentionally distinguished from assaults and private interpersonal violence on that same basis. See Cash v. State, 2 Tenn. 198, 199 (1813) (“It is because the violence is committed in a public place, and to the terror of the people, that the crime is called an affray, instead of assault and battery“); Nottingham v. State, 227 Md. App. 592, 602, 135 A. 3d 541, 547 (Md. 2016) (“[U]nlike assault and battery, affray is ‘not a crime against the person; rather, affray is a crime against the public‘” (internal quotation
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marks omitted)). As treatises shortly before the founding explain, “there may be an Assault which will not amount to an Affray; as where it happens in a private Place, out of the hearing or seeing of any, except the Parties concerned; in which Case it cannot be said to be to the Terror of the People.” 1 Hawkins, Pleas of the Crown, at 134; see 1 Burn, Justice of the Peace, at 13. Affrays thus did not cover the very conduct
Second, affray laws did not impose a burden analogous to
The Court counters that since affray laws “provided for imprisonment,” they imposed a lesser burden than
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tion provided a bevy of protections during that process—including a right to a jury trial, counsel, and protections against double jeopardy. See Amdts. 5, 6.
The imposition of
Affray laws are wide of the mark. While the Second Amendment does not demand a historical twin, it requires
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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. So it takes pieces from each to stitch together an analogue for
The Court‘s contrary approach of mixing and matching historical laws—relying on one law‘s burden and another law‘s justification—defeats the purpose of a historical inquiry altogether. Given that imprisonment (which involved disarmament) existed at the founding, the Government can always satisfy this newly minted comparable-burden requirement. See ante, at 14-15. That means the Government need only find a historical law with a comparable justification to validate modern disarmament regimes. As a result, historical laws fining certain behavior could justify completely disarming a person for the same behavior. That
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is the exact sort of “regulatory blank check” that Bruen warns against and the American people ratified the Second Amendment to preclude. 597 U. S., at 30.
Neither the Court nor the Government identifies a single historical regulation with a comparable burden and justification as
IV
The Government, for its part, tries to rewrite the Second Amendment to salvage its case. It argues that the Second Amendment allows Congress to disarm anyone who is not “responsible” and “law-abiding.” Not a single Member of the Court adopts the Government‘s theory. Indeed, the Court disposes of it in half a page—and for good reason. Ante, at 17. The Government‘s argument lacks any basis in our precedents and would eviscerate the Second Amendment altogether.
A
The Government‘s position is a bald attempt to refashion this Court‘s doctrine. At the outset of this case, the Government contended that the Court has already held the Second Amendment protects only “responsible, law-abiding” citizens. Brief for United States 6, 11-12. The plain text of the Second Amendment quashes this argument. The Amendment recognizes “the right of the people to keep and bear Arms.” (Emphasis added.) When the Constitution refers to “the people,” the term “unambiguously refers to all members of the political community.” Heller, 554 U. S., at 580; see also id., at 581 (beginning its analysis with the strong “presumption that the Second Amendment right . . . belongs to all Americans“). The Government‘s claim that the Court already held the Second Amendment protects
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only “law-abiding, responsible citizens” is specious at best.7 See ante, at 17.
At argument, the Government invented yet another position. It explained that when it used the term “responsible” in its briefs, it really meant “not dangerous.” See Tr. of Oral Arg. 10-11. Thus, it posited that the Second Amendment protects only law-abiding and non-dangerous citizens. No matter how many adjectives the Government swaps out, the fact remains that the Court has never adopted anything akin to the Government‘s test. In reality, the “law-abiding, dangerous citizen” test is the Government‘s own creation, designed to justify every one of its existing regulations. It has no doctrinal or constitutional mooring.
The Government finally tries to cram its dangerousness test into our precedents. It argues that
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13.
As it does today, the Court should continue to rebuff the Government‘s attempts to rewrite the Second Amendment and the Court‘s precedents interpreting it.
B
The Government‘s “law-abiding, dangerous citizen” theory is also antithetical to our constitutional structure. At bottom, its test stems from the idea that the Second Amendment points to general principles, not a historically grounded right. And, it asserts that one of those general principles is that Congress can disarm anyone it deems “dangerous, irresponsible, or otherwise unfit to possess arms.” Brief for United States 7. This approach is wrong as a matter of constitutional interpretation, and it undermines the very purpose and function of the Second Amendment.
The Second Amendment recognizes a pre-existing right and that right was “enshrined with the scope” it was “understood to have when the people adopted [the Amendment].” Heller, 554 U. S., at 634-635. Only a subsequent constitutional amendment can alter the Second Amendment‘s terms, “whether or not future legislatures or even future judges think [its original] scope [is] too broad.” Id., at 635.
Yet, the Government‘s “law-abiding, dangerous citizen” test—and indeed any similar, principle-based approach—would hollow out the Second Amendment of any substance. Congress could impose any firearm regulation so long as it targets “unfit” persons. And, of course, Congress would also dictate what “unfit” means and who qualifies. See Tr. of Oral Arg. 7, 51. The historical understanding of the Second Amendment right would be irrelevant. In fact, the Government posits that Congress could enact a law that the Founders explicitly rejected. See Id., at 18 (agreeing that
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modern judgment would override “[f]ounding-[e]ra applications“). At base, whether a person could keep, bear, or even possess firearms would be Congress‘s policy choice under the Government‘s test.
That would be the direct inverse of the Founders’ and ratifying public‘s intent. Instead of a substantive right guaranteed to every individual against Congress, we would have a right controlled by Congress. “A constitutional guarantee subject to future judges’ [or Congresses‘] assessments of its usefulness is no constitutional guarantee at all.” Heller, 554 U. S., at 634. The Second Amendment is “the very product of an interest balancing by the people.” Id., at 635. It is this policy judgment—not that of modern and future Congresses—“that demands our unqualified deference.” Bruen, 597 U. S., at 26.
The Government‘s own evidence exemplifies the dangers of approaches based on generalized principles. Before the Court of Appeals, the Government pointed to colonial statutes “disarming classes of people deemed to be threats, including . . . slaves, and native Americans.” Supp. Brief for United States in No. 21-11001 (CA5), p. 33. It argued that since early legislatures disarmed groups considered to be “threats,” a modern Congress has the same authority. Ibid. The problem with such a view should be obvious. Far from an exemplar of Congress‘s authority, the discriminatory regimes the Government relied upon are cautionary tales. They warn that when majoritarian interests alone dictate who is “dangerous,” and thus can be disarmed, disfavored groups become easy prey. One of many such examples was the treatment of freed blacks following the Civil War. “[M]any of the over 180,000 African-Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks.” McDonald v. Chicago, 561 U. S. 742, 771 (2010). Some “States formally prohibited African-Americans from possessing firearms.” Ibid. And,
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“[t]hroughout the South, armed parties . . . forcibly took firearms from newly freed slaves.” Id., at 772. “In one town, the marshal took all arms from returned colored soldiers, and was very prompt in shooting the blacks whenever an opportunity occurred.” Ibid. (alterations and internal quotation marks omitted). A constitutional amendment was ultimately “necessary to provide full protection for the rights of blacks.” Id., at 775.
The Government peddles a modern version of the governmental authority that led to those historical evils. Its theory would allow federal majoritarian interests to determine who can and cannot exercise their constitutional rights. While Congress cannot revive disarmament laws based on race, one can easily imagine a world where political minorities or those with disfavored cultural views are deemed the next “dangers” to society. Thankfully, the Constitution prohibits such laws. The “very enumeration of the [Second Amendment] right takes out of the hands of government . . . the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, 554 U. S., at 634.
The Court rightly rejects the Government‘s approach by concluding that any modern regulation must be justified by specific historical regulations. See ante, at 10-15. But, the Court should remain wary of any theory in the future that would exchange the Second Amendment‘s boundary line—“the right of the people to keep and bear Arms, shall not be infringed“—for vague (and dubious) principles with contours defined by whoever happens to be in power.
* * *
This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution. Most States, including Texas, classify aggravated assault as a felony, punishable
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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.