A good faith disagreement exists between the majority in United States v. Rahimi and Justice Thomas in dissent on whether the founding-era laws on affrays and sureties are valid historical analogues for the federal gun ban on persons who are subject to domestic violence restraining orders (DVROs). Justice Thomas makes a persuasive case that they do not suffice, while the Chief Justice, writing for the majority, contends that the requirement that the underlying court order includes "a finding that such person represents a credible threat to the physical safety of such intimate partner or child" is amply parallel.
But Rahimi is sufficiently consistent with NY State Rifle & Pistol Ass'n v. Bruen that three Justices could not contain their rejection of that opinion. They concurred because Rahimi's conviction was upheld, not because they agreed with any of the reasoning.
Justice Sotomayor, joined by Justice Kagan, began by asserting her continued belief "that Bruen was wrongly decided." She then held her nose and argued that Bruen was correctly applied in Rahimi. But she tried to undercut Rahimi's historical approach given that "the weapons in question have evolved dramatically," citing an article about how it took a long time to load 18th century guns. On the contrary, the Chief Justice reiterated that the term "arms" applies, "prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence," adding that protection does not apply "only to muskets and sabers." Is this a warmup for the fight over "assault weapon" bans?
