The Supreme Court recently decided United States v. Rahimi, June 21, 2024 (herein Rahimi).

This case has “fine-tuned” the precedent of New York State Rifle & Pistol Assn. Inc. v. Bruen, 2022 (herein Bruen), which took a decidedly originalist approach to the Second Amendment’s right to bear arms. Bruen was confused regarding a legislator’s ability to regulate the possession and use of guns.

Bruen had required that any legislative regulation be similar to those that existed in 1791, the year the Second Amendment was ratified, a democratic process.

The issue was how close to those early legislative limits did current limits have to come.

Rahimi concluded that current legislative limits on the Second Amendment right have to be at least analogous, but not necessarily “twins,” of historic legislation. Early legislation did not allow, for example, a person to possess a gun who was found by a court to be a risk to harm another person. A similar limitation was upheld in Rahimi.

The problem is that the Second Amendment is written in absolute terms with no textual limitation. Justice Amy Coney Barrett wrote in Rahimi: “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.”

Chief Justice John Roberts stated: “Taken together (the historical laws) confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” He noted that the statute “is by no means identical to those founding era regimes, but it does not need to be.”

Roberts wrote the opinion for the Court, with only Justice Clarence Thomas, the author of Bruen, dissenting in this 8-1 decision.

Rahimi was abusive to his girlfriend, C.M.

A bystander observed the altercation. Rahimi retrieved a gun from under the passenger’s seat of his car and fired his weapon, although it was not clear what the target was.

C.M. went to court to get a restraining order. She got the order but Rahimi disobeyed it. He also threatened others with a gun. Roberts gave much factual detail here.

The federal statute involved forbidding the possession of a firearm while subject to a domestic violence restraining order.  Rahimi argued that the statute violated the Second Amendment on its face, meaning there was no set of facts under which the statute would be constitutional.

In light of Bruen, the Court of Appeals reversed Rahimi’s conviction and held that the statute did not “fit within our tradition of firearm regulation.” The Supreme Court here reversed the Court of Appeals and, thus, in effect, upheld the statute and the conviction.

Roberts stated that the new law need not be a “twin” of an early one, but be “’relevantly similar’ to laws that our tradition is understood to permit.”

It must be “analogous enough to pass constitutional muster.” (Roberts citing Bruen). Just as the Second Amendment applies to modern weapons and is not limited to muskets and sabers, regulations can be more than ones found in 1791.

The outcome here is common sense, as Roberts states.

Roberts concludes that the prior gun cases of Heller, McDonald, and Bruen did not undertake an exhaustive historical analysis, “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.”

Therefore, we can expect future cases to further fine-tune this difficult area. As Justice Ketanji Brown Jackson states — legislatures are “hobbled without a clear, workable test for assessing the constitutionality of their proposal.

Courts, which are currently at sea, need a solid anchor for grounding their constitutional pronouncement. The public, too, deserves clarity.”

Are we still adrift under the Second Amendment law?

Although more precision is desirable, Devid French observes that the Rahimi holding would include red-flag laws or extreme-risk protective orders.

“Research has demonstrated that mass shooters tend to broadcast violent intentions before they act.” French said. (The New York Times, June 23, 2024).

The national interest prevails over individual rights. Relevantly, the Surgeon General has just declared gun violence to be a public health crisis.

— James Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu

This article originally appeared on The Monroe News: Gun Control After Rahimi