The Supreme Court reconsiders its originalist Second Amendment ruling.
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The 2008 decision in District of Columbia v. Heller was the first time the Supreme Court said that the Second Amendment protects an individual right to gun ownership. But even that decision — reversing 200 years of judicial consensus on the meaning of “keep and bear Arms” — said the United States could still have strong gun laws. In fact, upwards of 90 percent of gun laws were upheld in the decade after Heller.

Justice Antonin Scalia wrote the Heller opinion. He was asked how he differed from Justice Clarence Thomas. “I am an originalist,” he replied. “But I am not a nut.”

And it was Thomas who wrote New York State Rifle & Pistol Association v. Bruen in 2022, by far the most extreme Second Amendment case in the country’s history. It said, in effect, that judges could not take current public safety concerns into consideration when weighing the constitutionality of a gun law — only history and tradition, by asking whether there was an analogous gun law in 1791.

Which brings us to United States v. Rahimi

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, the case argued before the Supreme Court yesterday. Zackey Rahimi assaulted the mother of his child. He was placed under a domestic violence restraining order, which triggered a ban on possessing a firearm. After that, he threatened a different woman with a gun, and on five separate occasions, he opened fire in public.

Citing Bruen’s “1791 analogue” test, the Fifth Circuit Court of Appeals struck down the law that stripped Rahimi of his right to carry a firearm. Of course, no such law existed at the time of the Second Amendment’s ratification: domestic violence wasn’t even a crime.

At oral argument yesterday, the justices were at pains to make clear they understood the absurdity of this result. Here’s the pick of the exchanges, between Chief Justice John Roberts and the lawyer for Rahimi.

“You don’t have any doubt that your client’s a dangerous person, do you?”

“Your honor, I would want to know what ‘dangerous person’ means at the moment.”

“Well, it means someone who’s shooting . . . at people. That’s a good start.”

When you’re done chuckling at Roberts’s bon mot, it’s worth remembering that he’s in part responsible for this situation. His votes in Heller and Bruen created the Fifth Circuit’s absurd ruling.

Based on the tenor of the questions, the justices could find a way to rule that of course you can take guns away from domestic abusers. To use the Latin legal phrase, duh. But they should go much further. They could try to find a way to rule that 1791 analogues need not be exact but “close enough.” For example, any founding-era law that took a gun away from a dangerous individual is close enough to a ban on gun possession by people under a domestic violence restraining order.

Or maybe, just maybe, there is a majority to fundamentally rethink the logic of Bruen. After all, Roberts and Brett Kavanaugh both voted for Bruen’s originalist opinion, but they also wrote separately that the real goal was for gun laws to be “objective.” Those two plus the three liberals would make a new majority for a saner approach to firearms regulation.

I’m not holding my breath, though. In case after case, Roberts has shown he wants to head in the same direction as his conservative colleagues, just a bit slower. But the reactionary absurdity of Bruen and its originalism remains. We live in a modern, changing country, one where tens of millions of assault weapons flood our streets, weapons of war unimaginable to the founders. The claim that the social views of those property-owning white men, at a time when women could not vote and Black people were enslaved, should be all that governs us today? That’s a truly “dangerous” idea.





Strengthening the Brennan Center

The Brennan Center is now nearly three decades old and has grown significantly in recent years, with a staff of 160 and an urgent mission to strengthen American democracy. “With our recent growth, we sought to strengthen management and hire an executive director to help lead this next phase. I am thrilled to welcome Melissa Estok in this role, a seasoned professional with decades of experience,” said President and CEO Michael Waldman. “She helped build Albright Stonebridge into a global company and has a long career in democracy promotion around the world. She will bring enormous new strength to our management at this critical time for the Brennan Center and our work.” Read more

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Ohio Abortion Vote Shows Value of Direct Democracy

Ohio voters just amended their state constitution to protect reproductive rights, including the right to abortion. It’s the latest example of citizens turning to ballot initiatives when gerrymandered legislatures refuse to follow the will of the people. “Ohio voters have shown that direct democracy remains a vital tool for voters to make themselves heard over the noise of moneyed and powerful special interests,” Alice Clapman writes. READ MORE

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AI’s Threat to Policymaking

Using generative AI tools, fraudsters can now easily flood government offices with fake communications purporting to come from members of the public. This raises the risk of distorting policymaking by preventing officials from understanding and responding to what their constituents truly want. The latest installment in our AI and Democracy series

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offers recommendations for how government can prevent bots from misrepresenting public opinion and safeguard citizens’ ability to participate in policy decisions. Read more

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Boosting Congress’s Technical Expertise

For at least a decade, Congress has struggled to grapple with urgent science and technology issues. As lawmakers now focus on tackling AI and climate change, they lack access to the high-quality, nonpartisan science and technology resources they need to effectively legislate in these areas. A new Brennan Center report proposes ways to bolster congressional expertise and implement structural reforms so that Congress is better equipped to handle the nation’s most pressing contemporary challenges. READ MORE

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The Victims of Voter Suppression in Texas

The Brennan Center and other co-counsel’s challenge to Texas’s 2021 voter suppression law is currently playing out in federal court. The trial has highlighted how the law harmed not only voters — especially Black and Latino voters and those with disabilities — but also the people who run elections in the state. Election workers testified that they fear prosecution due to the law’s unreasonable and often vague requirements, with some saying they’ll refuse to serve in the same roles as long as the statute remains in effect. Read more

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Rethinking Mass Supervision

Parole and probation are seen as kinder alternatives to imprisonment. But a new book by a former New York City probation commissioner explains how they now share many of the harms of mass incarceration. He urges a move from the current system of community supervision to community-led reentry and rehabilitation programs. “Those concerned about justice and public safety should seriously consider his blueprint for reducing mass supervision,” Rosemary Nidiry writes. Read more

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Closing a Government Surveillance Loophole

Lawmakers agree that Section 702 of the Foreign Intelligence Surveillance Act, an expiring authority that has been used to spy on Americans, should not be reauthorized without major reforms. But there’s little consensus on exactly how to reform it. A bill introduced Tuesday by a bipartisan group of lawmakers “would protect Americans’ privacy without compromising the law’s effectiveness,” Elizabeth Goitein and Noah Chauvin write in Just Security. Read more

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Coming Up

VIRTUAL EVENT: Supreme Court: Ready for Reform?

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Thursday, November 14, 1–2 p.m. ET



The Supreme Court is mired in controversy. Public support has collapsed to the lowest level ever recorded in polls. We want a fair and independent judiciary. Is it time to reform the Court? What can the public, the media, and Congress do to bring accountability to this institution?



Check out the virtual premiere of a previously recorded conversation with Sen. Sheldon Whitehouse (D-RI), featuring a live YouTube chat with Michael Waldman. Whitehouse and Waldman discuss important proposals for term limits and ethics reform, in conversation with NYU School of Law’s Kenji Yoshino. RSVP today

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Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Elizabeth Howard on the nationwide exodus of election officials // CRONKITE NEWS

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Sean Morales-Doyle on automatic voter registration // THE ATLANTIC

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Spencer Reynolds on the need for greater oversight of the Department of Homeland Security // THE HILL

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Daniel Weiner on a Maine ballot measure that would ban foreign spending on referendums // ASSOCIATED PRESS

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