United States v. Rahimi

JUSTICE GORSUCH, concurring.¶

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 18 U. S. C. §922(g)(8) violates the Second Amendment “in all its applications.” Bucklew v. Precythe , 587 U. S. 119, 138 (2019). To prevail, he must show “no set of circumstances” exists in which that law can be applied without violating the Second Amendment. Salerno , 481 U. S., at 745. I agree with the Court that he has failed to make that showing. Ante , at 8.¶

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 of the Second Amendment. So, in this facial challenge, the question becomes whether that law, in at least some of its applications, is consistent with historic firearm regulations. To prevail, the government need not show that the current law is a ''dead ringer'' for some historical analogue. Ante , at 8 (quoting Bruen , 597 U. S., at 30). But the government must establish that, in at least some of its applications, the challenged law “impose[s] a comparable burden on the right of armed self-defense” to that imposed by a historically recognized regulation. Id ., at 29; see ante , at 7. And it must show that the burden imposed by the current law “is comparably justified.” Bruen , 597 U. S., at 29; see ante , at 7.¶

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 change, facts on the ground may evolve, and new laws may invite new challenges, but the Constitution the people adopted remains our enduring guide. Bruen , 597 U. S., at 27–28; see, e . g ., United States v. Jones , 565 U. S. 400, 404405 (2012); Caetano v. Massachusetts , 577 U. S. 411, 411412 (2016) ( per curiam ). If changes are to be made to the Constitution’s directions, they must be made by the American people. Nor is there anything remotely unusual about any of this. Routinely, litigants and courts alike must consult history when seeking to discern the meaning and scope of a constitutional provision. See post , at 6–16 (KAVANAUGH, J., concurring) (offering examples). And when doing so, litigants and courts “must exercise care.” See post , at 3, n. (BARRETT, J., concurring).¶

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 then . . . enforce its guarantees only to the extent they serve (in the courts’ views) those underlying values.” Ibid. Proceeding that way, we have warned, risks handing judges a license to turn “the guarantee of confrontation” into “no guarantee at all.” Ibid . As there, so too here: Courts must proceed with care in making comparisons to historic firearms regulations, or else they risk gaming away an individual right the people expressly preserved for themselves in the Constitution’s text.¶

Proceeding with this well in mind today, the Court rightly holds that Mr. Rahimi’s facial challenge to §922(g)(8) cannot succeed. It cannot because, through surety laws and restrictions on “going armed,” the people in this country have understood from the start that the government may disarm an individual temporarily after a “judicial determinatio[n]” that he “likely would threaten or ha[s] threatened another with a weapon.” Ante , at 14. And, at least in some cases, the statute before us works in the same way and does so for the same reasons: It permits a court to disarm a person only if, after notice and hearing, it finds that he “represents a credible threat to the physical safety” of others. §§922(g)(8)(A), (g)(8)(C)(i). A court, too, may disarm an individual only for so long as its order is in effect. §922(g)(8). In short, in at least some applications, the challenged law does not diminish any aspect of the right the Second Amendment was originally understood to protect. See Bruen , 597 U. S., at 24.¶

I appreciate that one of our colleagues sees things differently. Post , at 6–7 (THOMAS, J., dissenting). But if reasonable minds can disagree whether §922(g)(8) is analogous to past practices originally understood to fall outside the Second Amendment’s scope, we at least agree that is the only proper question a court may ask. Post , at 5. Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult. Asking that question, however, at least keeps judges in their proper lane, seeking to honor the supreme law the people have ordained rather than substituting our will for theirs. And whatever indeterminacy may be associated with seeking to honor the Constitution’s original meaning in modern disputes, that path offers surer footing than any other this Court has attempted from time to time. Come to this Court with arguments from text and history, and we are bound to reason through them as best we can. (As we have today.) Allow judges to reign unbounded by those materials, or permit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule. (Except the judges themselves.) Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.¶

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 and history. 597 U. S., at 19. Perhaps judges’ jobs would be easier if they could simply strike the policy balance they prefer. And a principle that the government always wins surely would be simple for judges to implement. But either approach would let judges stray far from the Constitution’s promise. See Heller , 554 U. S., at 634.¶

One more point: Our resolution of Mr. Rahimi’s facial challenge to §922(g)(8) necessarily leaves open the question whether the statute might be unconstitutional as applied in “particular circumstances.” Salerno , 481 U. S., at 751. So, for example, we do not decide today whether the government may disarm a person without a judicial finding that he poses a “credible threat” to another’s physical safety. §922(g)(8)(C)(i); see ante , at 8. We do not resolve whether the government may disarm an individual permanently. See ante , at 14 (stressing that, “like surety bonds of limited duration, Section 922(g)(8)’s restriction was temporary as applied to [Mr.] Rahimi”). We do not determine whether §922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense. Notably, the surety laws that inform today’s decision allowed even an individual found to pose a threat to another to “obtain an exception if he needed his arms for self-defense.” Ante , at 12; see also post , at 23 (THOMAS, J., dissenting). Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.'' Ante , at 17 (quoting Brief for United States 6); see Tr. of Oral Arg. 31–32; see also post , at 27 (opinion of THOMAS, J.) (“Not a single Member of the Court adopts the Government’s theory”).¶

We do not resolve any of those questions (and perhaps others like them) because we cannot. Article III of the Constitution vests in this Court the power to decide only the ''actual cas[e]'' before us, ''not abstractions.'' Public Workers v. Mitchell , 330 U. S. 75, 89 (1947). And the case before us does not pose the question whether the challenged statute is always lawfully applied, or whether other statutes might be permissible, but only whether this one has any lawful scope. Nor should future litigants and courts read any more into our decision than that. As this Court has long recognized, what we say in our opinions must “be taken in connection with the case in which those expressions are used,” Cohens v. Virginia , 6 Wheat. 264, 399 (1821), and may not be “stretch[ed] . . . beyond their context,” Brown v. Davenport , 596 U. S. 118, 141 (2022).¶

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.¶