Over at Balkinization, Joseph Blocher (Duke Law School) and Reva Siegel (Yale Law School) have a post on "Gun Rights and Domestic Violence in Rahimi—Whose Traditions Does the Second Amendment Protect?" Here's an excerpt:
Since 1994, persons subjected by courts to qualifying domestic violence restraining orders have been prohibited from possessing a firearm under 18 U.S.C. § 922 (g)(8). In United States v. Rahimi, the Fifth Circuit declared that prohibition unconstitutional under the Second Amendment.
. . .
We show that the domestic violence prohibitor is constitutional under Bruen’s historical test, and explain how the Fifth Circuit and other federal courts are manipulating levels of generality in applying the test so that it can be used to strike down nearly any modern gun law. Rahimi therefore provides a critical occasion for the Court to uphold the domestic violence prohibitor and to reject the asymmetric application of Bruen’s analogical framework that the Fifth Circuit employed in justifying the law’s invalidation.
The post links to their article "Guided By History: Protecting the Public Sphere From Weapons Threats Under Bruen," which appears in Volume 98 of the New York University Law Review (2023). Here's the abstract:
Since the Founding era, governments have banned guns in places where
weapons threaten activities of public life. The Supreme Court reaffirmed
this tradition of “sensitive places” regulation in District of Columbia
v. Heller, and locational restrictions on weapons have become a central
Second Amendment battleground in the aftermath of New York State Rifle
& Pistol Association v. Bruen. Liberals have criticized Bruen for
requiring public safety laws to mimic founding practice, while
conservatives have criticized it for licensing regulatory change not
within the original understanding. In this Article we argue that Bruen’s
analogical method looks to the past to guide change in weapons
regulation, not to foreclose change. We illustrate the kinds of
sensitive place regulations Bruen authorizes with examples spanning
several centuries and close by demonstrating—contrary to recent court
decisions—that a 1994 federal law prohibiting gun possession by persons
subject to a domestic violence restraining order is constitutional under
Bruen.
Where some imagine the past as a land of all guns and no
laws, this Article shows how weapons regulation of the past can guide
public safety regulation of the present. Governments traditionally have
protected activities against weapons threats in sites of governance and
education: places where bonds of democratic community are formed and
reproduced. We argue that Bruen’s historical-analogical method allows
government to protect against weapons threats in new settings—including
those of commerce and transportation—so long as these locational
restrictions respect historical tradition both in terms of “why” and
“how” they burden the right to keep and bear arms.
At the heart
of this Article is a simple claim: That Bruen’s analogical method
enables public safety laws to evolve in step with the gun-related harms
they address. Bruen does not require the asymmetrical and selective
approach to constitutional change practiced by some in its name. Just as
Bruen extends the right of self-defense to weaponry of the twenty-first
century, it also recognizes democracy’s competence to protect against
weapons threats of the twenty-first century.
We apply these
principles to demonstrate the constitutionality of the federal law
prohibiting gun possession by people subject to a domestic violence
restraining order, which the Supreme Court is currently considering in
United States v. Rahimi.
The full article is available here.
-- Karen Tani
