This week, the Supreme Court heard oral arguments in a Second Amendment case, United States v. Rahimi. This case asks whether the federal government can ban gun possession by people subject to domestic-violence restraining orders. In this episode, we break down the arguments in the case and explore the future of the Second Amendment. Clark Neily of the Cato Institute and Pepperdine Law Professor Jacob Charles join Jeffrey Rosen, president and CEO of the National Constitution Center, to discuss.
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Today’s episode was produced by Lana Ulrich, Bill Pollock, and Samson Mostashari. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Clark Neily is senior vice president for legal studies at the Cato Institute and an adjunct professor at George Mason’s Antonin Scalia School of Law. He served as co‐counsel in District of Columbia v. Heller. He filed a brief in the Rahimi case in support of respondent Rahimi.
Jacob Charles is an associate law professor at the Pepperdine Caruso School of Law. He is the co-author of a forthcoming Foundation Press casebook on the Second Amendment and co-editor of a forthcoming Oxford University Press collection of historical essays on gun laws. He signed on to a brief in support of the petitioner United States in the Rahimi case.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- United States v. Rahimi, Oral Argument (C-SPAN)
- NY State Pistol and Rifle Assn. v Bruen (2021)
- Judge Kavanaugh dissent, D.C. v. Heller (D.C. Cir. 2011)
- Clark Neily, Brief in Support of Respondent, United States v. Rahimi
- Jacob Charles (et al), Brief of Second Amendment Scholars in Support of Petitioner, United States v. Rahimi
Excerpt from interview: On the text, history, and tradition test from Bruen for Second Amendment cases and its potential problems
Jacob Charles: And so Bruen says, look and see if you see an analogous regulation, if you see something that's consistent with history, if the modern law today is consistent with that history and tradition, then it's okay. And if not, then it's not okay. And just one last point here on how that came up in oral argument in Rahimi is I think the Solicitor General did a fantastic job of telling the court what was wrong with Bruen by characterizing all of these criticisms as misreadings of Bruen. Instead of saying Bruen was underspecified and Bruen made this search for historical analog, she said, "No, that's a caricature of Bruen. Instead Bruen requires us to do…to search at this higher level of abstraction to look at all of the evidence, not just enacted law."
I think it was a brilliant strategic move because the justices are not going to abandon Bruen one year after they issued it. But I do think it demonstrates that the way lower courts were interpreting Bruen, I think, is the way that Bruen was intended. But that the court can do a lot to change that without expressly saying we're disavowing Bruen.
That is so helpful. Thank you for helping me understand that Bruen did adopt this text, history, and tradition test, as you said, not to determine the scope of the right with the scope of the regulatory authority. Clark Neily, does that make any sense as a matter of originalist or textualist interpretation as came up in the oral argument? We don't do that in the First Amendment context. What would the justification be for looking to the history and tradition to determine, not the scope of the right, but the scope of regulatory authority?
Clark Neily: Yeah, I do think it's problematic. I mean, I suppose you could try to argue that what we're looking here is essentially at a coin, and you've got two sides to the coin. And so if you identify the contours of the asserted right at the time, you then have also identified the contours of the extent of the regulatory power. Or you could flip that around and say, once you've identified the contours of the regulatory power by seeing how much of it was exercised, you now also know the shape of the right because the shape of the right exactly is the mirror image of the contours of the regulatory power.
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