Clarence Thomas Goes Out Of His Way To Dissent As SCOTUS Upholds Gun Law Protecting Domestic Abuse Victims
The lone dissent on a nearly unanimous U.S. Supreme Court decision on Friday to uphold a gun law meant to protect victims of domestic violence was written by a judge currently facing valid accusations of corruption and questionable ethics.
Clarence Thomas, the only Supreme Court judge to opine against a law that bans violent domestic abusers under restraining orders from being able to possess guns legally, went out of his way to express his opinion on the matter with a dissent of nearly 9,000 words.
MORE: Clarence Thomas Suggests Supreme Courtâs Brown v. Board Of Education Decision Was Wrong
Fridayâs decision came months after the Supreme Court first heard arguments in the United States vs. Rahimi, a case centered on a Texas man accused of physically assaulting his girlfriend in public before threatening to shoot her.
BREAKING: Supreme Court rules 8-1 upholding ban on domestic abusers owning guns. pic.twitter.com/8eVxuq66FF
â MSNBC (@MSNBC) June 21, 2024
While the Supreme Courtâs eight other judges sided with Justice John Robertsâ concurring opinion, Thomas wrote in his dissent that â[n]ot a single historical regulation justifies the statute at issueâ and that, âin the interest of ensuring the Government can regulate one subset of society, todayâs decision puts at risk the Second Amendment rights of many more.â
Clarence Thomas thinks this person should be allowed to have a gun. pic.twitter.com/VRtHHj74n8
â Matt Fuller (@MEPFuller) June 21, 2024
Thomasâ dissent comes one week after he wrote a majority opinion striking down regulations for âbump stocks,â a gun mechanism used in the 2017 Las Vegas mass shooting that makes a semiautomatic rifle shoot bullets more rapidly like a machine gun.
Both cases took place on the backdrop of further revelations that Thomas concealed years of receiving luxurious gifts from conservative billionaire Republican donor Harlan Crow.
It was in that context that Thomas did not want to uphold a gun law that protects victims of domestic abuse.
So Clarence Thomas thinks you should be able to buy a gun to murder your wife with if you’re a domestic abuser.
Thankfully, the other justices disagree.
â Machine Pun Kelly (@KellyScaletta) June 21, 2024
Read Thomasâ full dissent below:
After New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), this Courtâs directive was clear: A firearm regulation that falls within the Second Amendmentâs plain text is unconstitutional unless it is consistent with the Nationâs historical tradition of firearm regulation. Not a single historical regulation justifies the statute at issue, 18 U. S. C. §922(g)(8). Therefore, I respectfully dissent.
I
Section 922(g)(8) makes it unlawful for an individual who is subject to a civil restraining order to possess firearms or ammunition. To trigger §922(g)(8)âs prohibition, a restraining order must bear three characteristics. First, the order issues after a hearing where the accused âreceived actual noticeâ and had âan opportunity to participate.â §922(g)(8)(A). Second, the order restrains the accused from engaging in threatening behavior against an intimate partner or child. §922(g)(8)(B). Third, the order has either âa finding that [the accused] represents a credible threat to the physical safety of [an] intimate partner or child,â or an âexplici[t] prohibit[ion]â on âthe use, attempted use, or threatened use of physical force against [an] intimate partner or child.â §922(g)(8)(C). If those three characteristics are present, §922(g)(8) automatically bans the individual subject to the order from possessing âany firearm or ammunition.â §922(g).
Just as important as §922(g)(8)âs express terms is what it leaves unsaid. Section 922(g)(8) does not require a finding that a person has ever committed a crime of domestic violence. It is not triggered by a criminal conviction or a personâs criminal history, unlike other §922(g) subsections. See §§922(g)(1), (9). And, §922(g)(8) does not distinguish contested orders from joint ordersâfor example, when parties voluntarily enter a no-contact agreement or when both parties seek a restraining order.
In addition, §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process.1 Rather, the ban is an automatic, uncontestable consequence of certain orders. See §922(g) (âIt shall be unlawful for any [qualifying] person [to] possess in or affecting commerce, any firearm or ammunitionâ). There is no hearing or opportunity to be heard on the statuteâs applicability, and a court need not decide whether a person should be disarmed under §922(g)(8). The only process §922(g)(8) requires is that provided (or not) for the underlying restraining order.
Despite §922(g)(8)âs broad scope and lack of process, it carries strong penalties. Any violation of §922(g)(8) is a felony punishable by up to 15 yearsâ imprisonment. §924(a)(8); see also ante, at 3. And, a conviction for violating §922(g)(8) itself triggers a permanent, life-long prohibition on possessing firearms and ammunition. See §922(g)(1).
In 2020, Zackey Rahimi and his ex-girlfriend, C. M., entered into a qualifying civil restraining order. App. 1. C. M. had requested the order and asserted that Rahimi assaulted her. See id., at 2. Because the order found that Rahimi presented a credible threat and prohibited him from using physical force against C. M., the order automatically triggered §922(g)(8)âs firearms ban. A year later, officers discovered firearms in Rahimiâs home. Rahimi pleaded guilty to violating §922(g)(8).
Before his guilty plea, Rahimi challenged his conviction under the Second Amendment. He pointed to District of Columbia v. Heller, 554 U. S. 570 (2008), which held that the Second Amendment protects an individual right to keep and bear firearms. Section 922(g)(8), Rahimi argued, violates that right by penalizing firearms possession. The District Court rejected Rahimiâs claim. At that time, the Courts of Appeals, including the Fifth Circuit, applied a form of means-end scrutiny to Second Amendment claims. See, e.g., United States v. McGinnis, 956 F. 3d 747, 753â754 (2020). Applying Circuit precedent, the Fifth Circuit affirmed the District Court. 2022 WL 2070392 (2022).
Roughly two weeks later, this Court issued its opinion in New York State Rifle & Pistol Assn., Inc. v. Bruen. The Court rejected the means-end-scrutiny approach and laid out the appropriate framework for assessing whether a firearm regulation is constitutional. Bruen, 597 U. S., at 17â 19. That framework requires the Government to prove that the âregulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.â Id., at 19. The Fifth Circuit withdrew its opinion to apply the correct framework to Rahimiâs claim. Relying on Bruen, the Fifth Circuit concluded that the Government failed to present historical evidence that §922(g)(8) âfits within our Nationâs historical tradition of firearm regulation.â 61 F. 4th 443, 460 (2023). The Fifth Circuit, accordingly, vacated Rahimiâs conviction. We granted certiorari. 600 U. S. ___ (2023).
II
The Second Amendment provides that â[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.â As the Court recognizes, Bruen provides the framework for analyzing whether a regulation such as §922(g)(8) violates the Second Amendmentâs mandate. â[W]hen the Second Amendmentâs plain text covers an individualâs conduct, the Constitution presumptively protects that conduct.â 597 U. S., at 17. To overcome this presumption, âthe government must demonstrate that the regulation is consistent with the Nationâs historical tradition of firearm regulation.â Ibid. The presumption against restrictions on keeping and bearing firearms is a central feature of the Second Amendment. That Amendment does not merely narrow the Governmentâs regulatory power. It is a barrier, placing the right to keep and bear arms off limits to the Government.
When considering whether a modern regulation is consistent with historical regulations and thus overcomes the presumption against firearms restrictions, our precedents âpoint toward at least two metrics [of comparison]: how and why the regulations burden a law-abiding citizenâs right to armed self-defense.â Id., at 29. A historical law must satisfy both considerations to serve as a comparator. See ibid. While a historical law need not be a âhistorical twin,â it must be âwell-established and representativeâ to serve as a historical analogue. Id., at 30 (emphasis deleted).
In some cases, âthe inquiry [is] fairly straightforward.â Id., at 26. For instance, âwhen a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.â Id., at 26â27.
The Court employed this âstraightforwardâ analysis in Heller and Bruen. Heller considered the District of Columbiaâs âflat ban on the possession of handguns in the home,â Bruen, 597 U. S., at 27, and Bruen considered New Yorkâs effective ban on carrying a firearm in public, see id., at 11â 13. The Court determined that the District of Columbia and New York had âaddressed a perceived societal problemâfirearm violence in densely populated communitiesâ and [they] employed a regulation . . . that the Founders themselves could have adopted to confront that problem.â Id., at 27. Accordingly, the Court âconsider[ed] âfoundingera historical precedentââ and looked for a comparable regulation. Ibid. (quoting Heller, 554 U. S., at 631). In both cases, the Court found no such law and held the modern regulations unconstitutional. Id., at 631; Bruen, 597 U. S., at 27.
Under our precedent, then, we must resolve two questions to determine if §922(g)(8) violates the Second Amendment: (1) Does §922(g)(8) target conduct protected by the Second Amendmentâs plain text; and (2) does the Government establish that §922(g)(8) is consistent with the Nationâs historical tradition of firearm regulation?
III
Section 922(g)(8) violates the Second Amendment. First, it targets conduct at the core of the Second Amendmentâ possessing firearms. Second, the Government failed to produce any evidence that §922(g)(8) is consistent with the Nationâs historical tradition of firearm regulation. To the contrary, the founding generation addressed the same societal problem as §922(g)(8) through the âmaterially different meansâ of surety laws. Id., at 26.
A
It is undisputed that §922(g)(8) targets conduct encompassed by the Second Amendmentâs plain text. After all, the statute bans a person subject to a restraining order from possessing or using virtually any firearm or ammunition. §922(g) (prohibiting covered individuals from âpossess[ing]â or âreceiv[ing] any firearm or ammunition which has been shipped or transported in interstate or foreign commerceâ). A covered individual cannot even possess a firearm in his home for self-defense, âthe central component of the [Second Amendment] right itself.â Heller, 554 U. S., at 599 (emphasis deleted). There is no doubt that §922(g)(8) is irreconcilable with the Second Amendmentâs text. Id., at 628â629.
It is also undisputed that the Second Amendment applies to Rahimi. By its terms, the Second Amendment extends to ââthe people,ââ and that âterm unambiguously refers to all members of the political community, not an unspecified subset.â Id., at 580. The Second Amendment thus recognizes a right âguaranteed to âall Americans.ââ Bruen, 597 U. S., at 70 (quoting Heller, 554 U. S., at 581). Since Rahimi is a member of the political community, he falls within the Second Amendmentâs guarantee.
B
The Government fails to carry its burden of proving that §922(g)(8) is âconsistent with the Nationâs historical tradition of firearm regulation.â 597 U. S., at 24. Despite canvassing laws before, during, and after our Nationâs founding, the Government does not identify even a single regulation with an analogous burden and justification.2
The Governmentâs failure is unsurprising given that §922(g)(8) addresses a societal problemâthe risk of interpersonal violenceââthat has persisted since the 18th century,â yet was addressed âthrough [the] materially different meansâ of surety laws. Id., at 26. Surety laws were, in a nutshell, a fine on certain behavior. If a person threatened someone in his community, he was given the choice to either keep the peace or forfeit a sum of money. Surety laws thus shared the same justification as §922(g)(8), but they imposed a far less onerous burden. The Government has not shown that §922(g)(8)âs more severe approach is consistent with our historical tradition of firearm regulation.
1
The Government does not offer a single historical regulation that is relevantly similar to §922(g)(8). As the Court has explained, the âcentral considerationsâ when comparing modern and historical regulations are whether the regulations âimpose a comparable burdenâ that is âcomparably justified.â Id., at 29. The Government offers only two categories of evidence that are even within the ballpark of §922(g)(8)âs burden and justification: English laws disarming persons âdangerousâ to the peace of the kingdom, and commentary discussing peaceable citizens bearing arms. Neither category ultimately does the job.
i
The Government points to various English laws from the late 1600s and early 1700s to argue that there is a tradition of restricting the rights of âdangerousâ persons. For example, the Militia Act of 1662 authorized local officials to disarm individuals judged âdangerous to the Peace of the Kingdome.â 14 Car. 2 c. 3, §13. And, in the early 1700s, the Crown authorized lords and justices of the peace to âcause search to be made for arms in the possession of any persons whom they judge dangerous, and seize such arms according to law.â Calendar of State Papers Domestic: William III, 1700â1702, p. 234 (E. Bateson ed. 1937) (Calendar William III).
At first glance, these laws targeting âdangerousâ persons might appear relevant. After all, if the Second Amendment right was historically understood to allow an official to disarm anyone he deemed âdangerous,â it may follow that modern Congresses can do the same. Yet, historical context compels the opposite conclusion. The Second Amendment stems from English resistance against âdangerousâ person laws
The sweeping disarmament authority wielded by English officials during the 1600s, including the Militia Act of 1662, prompted the English to enshrine an individual right to keep and bear arms. â[T]he Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents.â Heller, 554 U. S., at 592. Englishmen, as a result, grew âto be extremely wary of concentrated military forces run by the state and to be jealous of their arms.â Id., at 593. Following the Glorious Revolution, they âobtained an assurance . . . in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed.â Ibid.
The English Bill of Rights âhas long been understood to be the predecessor to our Second Amendment.â Ibid. In fact, our Founders expanded on it and made the Second Amendment even more protective of individual liberty. The English Bill of Rights assured Protestants âArms for their Defence,â but only where âsuitable to their Conditions and as allowed by Law.â 1 Wm. & Mary, ch. 2, (1688), in 6 Statutes of the Realm 143. The Second Amendment, however, contains no such qualifiers and protects the right of âthe peopleâ generally. In short, laws targeting âdangerousâ persons led to the Second Amendment. It would be passing strange to permit the Government to resurrect those self-same âdangerousâ person laws to chip away at that Amendmentâs guarantee.
Even on their own terms, laws targeting âdangerousâ persons cannot support §922(g)(8). Those laws were driven by a justification distinct from that of §922(g)(8)âquashing treason and rebellion. The Stuart Kingsâ reign was marked by religious and political conflict, which at that time were often one and the same. The Parliament of the late 1600s âre-established an intolerant episcopalian churchâ through legislation targeting other sects, including â[a] fierce penal codeâ to keep those other sects out of local government and âto criminalize nonconformist worship.â Oxford Handbook of the English Revolution 212 (M. Braddick ed. 2015) (Oxford Handbook); see G. Clark, The Later Stuarts 1660â 1714, p. 22 (2d ed. 1955). These laws were driven in large part by a desire to suppress rebellion. âNonconformist ministers were thought to preach resistance to divinely ordained monarchs.â Oxford Handbook 212; see Calendar of State Papers Domestic: Charles II, 1661â1662, p. 161 (M. Green ed. 1861) (Calendar Charles II) (â[P]reachers go about from county to county, and blow the flames of rebellionâ). Various nonconformist insurrections gave credibility to these fears. See, e.g., Clark, The Later Stuarts, at 22; Privy Council to Lord Newport (Mar. 4, 1661), in Transactions of the Shropshire Archaeological and Natural History Society, Pt. 2, 3d Ser., Vol. 4, p. 161 (1904).
It is in this turbulent context that the English kings permitted the disarming of âdangerous persons.â English lords feared that nonconformistsâi.e., people with ââwicked and Rebellious Principlesâââhad ââfurnished themselves with quantities of Arms, and Ammunitionââ ââto put in Execution their Trayterus designs.ââ Privy Council to Lord Newport (Jan. 8, 1660), in id., at 156; see Calendar Charles II 541 (âThe fanatics . . . are high and insolent, and threaten all loyal people; they will soon be in armsâ). In response, the Crown took measures to root out suspected rebels, which included âdisarm[ing] all factious and seditious spirits.â Id., at 538 (Nov. 1, 1662). For example, following âturbulency and difficultiesâ arising from the Conventicles Act of 1670, which forbade religious nonconformists from assembling, the lord mayor of London pressed that âa special warrant or commission [was] necessaryâ empowering commissioners to âresist, fight, kill, and execute such rebels.â Calendar of State Papers, Domestic Series, 1670, p. 236 (May 25, 1670) (M. Green ed. 1895) (emphasis deleted). King Charles II ordered the lord mayor âto make strict search in the city and precincts for dangerous and disaffected persons, seize and secure them and their arms, and detain them in custody till our further pleasure.â Id., at 237 (May 26, 1670).
History repeated itself a few decades later. In 1701, King William III declared that âgreat quantities of arms, and other provisions of warâ had been discovered in the hands of âpapists and other disaffected persons, who disown [the] government,â and that such persons had begun to assemble âin great numbers . . . in the cities of London and Westminster.â Calendar William III 233. He ordered the lord mayor of London and the justices of the peace to âsecur[e] the governmentâ by disarming âany persons whom they judge[d] dangerous,â including âany papist, or reputed papist.â Id., at 233â234 (emphasis deleted). Similar disarmaments targeting âPapists and Non-jurors dangerous to the peace of the kingdomâ continued into the 1700s. Privy Council to the Earl of Carlisle (July 30, 1714), in Historical Manuscripts Commân, Manuscripts of the Earl of Westmoreland et al. 10th Report, Appx., Pt. 4, p. 343 (1885). As before, disarmament was designed to stifle âwicked conspirac[ies],â such as âraising a Rebellion in this Kingdom in favour of a Popish Pretender.â Lord Lonsdale to Deputy Lieutenants of Cumberland (May 20, 1722), in Historical Manuscripts Commission, Manuscripts of the Earl of Carlisle, 15th Report, Appx., Pt. 6, pp. 39â40 (1897).
While the English were concerned about preventing insurrection and armed rebellion, §922(g)(8) is concerned with preventing interpersonal violence. âDangerousâ person laws thus offer the Government no support.
ii
The Government also points to historical commentary referring to the right of âpeaceableâ citizens to carry arms. It principally relies on commentary surrounding two failed constitutional proposals.3 First, at the Massachusetts convention, Samuel Adams unsuccessfully proposed that the Bill of Rights deny Congress the power âto prevent the people of the United States, who are peaceable citizens, from keeping their own arms.â 6 Documentary History of the Ratification of the Constitution 1453 (J. Kaminski & G. Saladino eds. 2000) (Documentary History). Second, AntiFederalists at the Pennsylvania convention unsuccessfully proposed a Bill of Rights providing a âright to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game.â 2 id., at 597â 598, ¶7 (M. Jensen ed. 1976). The Anti-Federalistsâ Bill of Rights would also state that âno law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.â Id., at 598.
These proposals carry little interpretative weight. To begin with, it is âdubious to rely on [drafting] history to interpret a text that was widely understood to codify a preexisting right.â Heller, 554 U. S., at 603. Moreover, the States rejected the proposals. Samuel Adams withdrew his own proposal after it âalarmed both Federalists and Antifederalists.â 6 Documentary History 1453 (internal quotation marks omitted).4 The Pennsylvania Anti-Federalistsâ proposal similarly failed to gain a majority of the state convention. 2 B. Schwartz, The Bill of Rights: A Documentary History 628 (1971).
The Government never explains why or how language excluded from the Constitution could operate to limit the language actually ratified. The more natural inference seems to be the oppositeâthe unsuccessful proposals suggest that the Second Amendment preserves a more expansive right. After all, the Founders considered, and rejected, any textual limitations in favor of an unqualified directive: â[T]he right of the people to keep and bear Arms, shall not be infringed.â
In addition to the proposals, the Government throws in a hodgepodge of sources from the mid-to-late 1800s that use the phrase âpeaceableâ in relation to firearms. Many of the sources simply make passing reference to the notion. See, e.g., H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (proposed circular explaining freed slaves âhave shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistenceâ). Other sources are individual musings on firearms policy. See, e.g., The Sale of Pistols, N. Y. Times, June 22, 1874 (advocating for âincluding pistols in the law against carrying concealed weaponsâ). Sources that do discuss disarmament generally describe nonpeaceable citizens as those who threaten the public or government. For example, the Government quotes a Union Generalâs order that âall loyal and peaceable citizens in Missouri will be permitted to bear arms.â Headquarters, Dept. of the Missouri, General Orders, No. 86 (Aug. 25, 1863), in The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, Ser. 1, Vol. 22, Pt. 2, p. 475 (1888). Yet, the Government fails to mention that the Union Generalâs order addresses the â[l]arge numbers of men . . . leaving the broken rebel armies . . . and returning to Missouri . . . with the purpose of following a career of plunder and murder.â Id., at 474. The order provided that âall those who voluntarily abandon[ed] the rebel causeâ could return to Missouri, but only if they âsurrender[ed] themselves and their arms,â â[took] the oath of allegiance and [gave] bond for their future good conduct.â Ibid. By contrast, âall loyal and peaceable citizens in Missouri w[ere] permitted to bear armsâ to âprotect themselves from violenceâ and âaid the troops.â Id., at 475. Thus, the term âloyal and peaceableâ distinguished between the former rebels residing in Missouri who were disarmed to prevent rebellion and those citizens who would help fight against them.
The Governmentâs smorgasbord of commentary proves little of relevance, and it certainly does not establish a âhistorical tradition that delimits the outer bounds of the right to keep and bear arms.â Bruen, 597 U. S., at 19.
iii
The Governmentâs remaining evidence is even further afield. The Government points to an assortment of firearm regulations, covering everything from storage practices to treason and mental illness. They are all irrelevant for purposes of §922(g)(8). Again, the âcentral considerationsâ when comparing modern and historical regulations are whether they âimpose a comparable burdenâ that is âcomparably justified.â Id., at 29 (emphasis deleted; internal quotation marks omitted). The Governmentâs evidence touches on one or none of these considerations.
The Governmentâs reliance on firearm storage laws is a helpful example. These laws penalized the improper storage of firearms with forfeiture of those weapons. See, e.g., Act of Mar. 1, 1783, ch. 46, 1782 Mass. Acts pp. 119â120. First, these storage laws did not impose a âcomparable burdenâ to that of §922(g)(8). Forfeiture still allows a person to keep their other firearms or obtain additional ones. It is in no way equivalent to §922(g)(8)âs complete prohibition on owning or possessing any firearms.
In fact, the Court already reached a similar conclusion in Heller. The Court was tasked with comparing laws imposing âa small fine and forfeiture of the weaponâ with the District of Columbiaâs ban on keeping functional handguns at home for self-defense, which was punishable by a year in prison. 554 U. S., at 633â634. We explained that the forfeiture laws were âakin to modern penalties for minor public-safety infractions like speeding or jaywalking.â Id., at 633. Such inconsequential punishment would not have âprevented a person in the founding era from using a gun to protect himself or his family.â Id., at 634. Accordingly, we concluded that the burdens were not equivalent. See id., at 633â634. That analysis applies here in full force. If a small fine and forfeiture is not equivalent to the District of Columbiaâs handgun ban, it certainly falls short of §922(g)(8)âs ban on possessing any firearm.
The Government resists the conclusion that forfeiture is less burdensome than a possession ban, arguing that â[t]he burdens imposed by bans on keeping, bearing, and obtaining arms are all comparable.â Reply Brief 10. But, there is surely a distinction between having no Second Amendment rights and having some Second Amendment rights. If self-defense is âthe central component of the [Second Amendment] right,â then common sense dictates that it matters whether you can defend yourself with a firearm anywhere, only at home, or nowhere. Heller, 554 U. S., at 599 (emphasis deleted). And, the Governmentâs suggestion ignores that we have repeatedly drawn careful distinctions between various lawsâ burdens. See, e.g., id., at 632 (explaining that laws that âdid not clearly prohibit loaded weapons . . . do not remotely burden the right of self-defense as much as an absolute ban on handgunsâ); see also Bruen, 597 U. S., at 48.
Our careful parsing of regulatory burdens makes sense given that the Second Amendment codifies a right with a âhistorically fixed meaning.â Id., at 28. Accordingly, history is our reference point and anchor. If we stray too far from it by eliding material differences between historical and modern laws, we ârisk endorsing outliers that our ancestors would never have accepted.â Id., at 30 (internal quotation marks and alteration omitted).
Second, the Government offers no âcomparable justificationâ between laws punishing firearm storage practices and §922(g)(8). It posits that both laws punish persons whose âconduct suggested that he would not use [firearms] responsibly.â Brief for United States 24. The Government, however, does not even attempt to ground that justification in historical evidence. See infra, at 28â29.
The Governmentâs proposed justification is also far too general. Nearly all firearm regulations can be cast as preventing âirresponsibleâ or âunfitâ persons from accessing firearms. In addition, to argue that a law limiting access to firearms is justified by the fact that the regulated groups should not have access to firearms is a logical merry-goround. As the Court has made clear, such overly broad judgments cannot suffice. In Bruen, New York claimed it could effectively ban public carry because âthe island of Manhattan [is] a âsensitive place.ââ 597 U. S., at 31. New York defined a âsensitive placeâ as âall places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.â Id., at 30â31 (internal quotation marks omitted). The Court rejected that definition as âfar too broa[d]â as it âwould in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense.â Id., at 31. Likewise, calling a modern and historical law comparably justified because they both prevent unfit persons from accessing firearms would render our comparable-justification inquiry toothless.5
In sum, the Government has not identified any historical regulation that is relevantly similar to §922(g)(8).
2
This dearth of evidence is unsurprising because the Founders responded to the societal problem of interpersonal violence through a less burdensome regime: surety laws. Tracing back to early English history, surety laws were a preventative mechanism for ensuring an individualâs future peaceable conduct. See D. Feldman, The Kingâs Peace, the Royal Prerogative and Public Order, 47 Cambridge L. J. 101, 101â102 (1988); M. Dalton, The Countrey Justice 140â144 (1619). If someone received a surety demand, he was required to go to a court or judicial officer with one or more members of the communityâi.e., suretiesâand comply with certain conditions. 4 W. Blackstone, Commentaries on the Laws of England 249â250 (1769) (Blackstone). Specifically, the person providing sureties was required to âkeep the peace: either generally . . . or . . . with regard to the person who crave[d] the securityâ until a set date. Id., at 250. If he kept the peace, the surety obligation dissolved on that predetermined date. See ibid. If, however, he breached the peace before that date, he and his sureties would owe a set sum of money. See id., at 249â250. Evidence suggests that sureties were readily available. Even children, who â[we]re incapable of engaging themselves to answer any debt,â could still find âsecurity by their friends.â Id., at 251.
There is little question that surety laws applied to the threat of future interpersonal violence. â[W]herever any private man [had] just cause to fear, that another w[ould] burn his house, or do him a corporal injury, by killing, imprisoning, or beating him . . . he [could] demand surety of the peace against such person.â Id., at 252; see also J. Backus, The Justice of the Peace 25 (1816) (providing for sureties when a person âstands in fear of his life, or of some harm to be done to his person or his estateâ (emphasis deleted)).
Surety demands were also expressly available to prevent domestic violence. Surety could be sought by âa wife against her husband who threatens to kill her or beat her outrageously, or, if she have notorious cause to fear he will do either.â Id., at 24; see 1 W. Hawkins, Pleas of the Crown 253 (6th ed. 1777) (â[I]t is certain, that a wife may demand [a surety] against her husband threatening to beat her outrageously, and that a husband also may have it against his wifeâ). The right to demand sureties in cases of potential domestic violence was recognized not only by treatises, but also the founding-era courts. Records from before and after the Second Amendmentâs ratification reflect that spouses successfully demanded sureties when they feared future domestic violence. See, e.g., Records of the Courts of Quarter Sessions and Common Pleas of Bucks County, Pennsylvania, 1684â1700, pp. 80â81 (1943) (detailing surety demanded upon allegations that a husband was âabusive to [his wife] that she was afraid of her Life & of her Childrns lifesâ); see also Heynâs Case, 2 Ves. & Bea. 182, 35 Eng. Rep. 288 (Ch. 1813) (1822) (granting wifeâs request to order her husband who committed âvarious acts of ill usage and threatsâ to âfind sufficient suretiesâ); Anonymous, 1 S. C. Eq. 113 (1785) (order requiring husband to âenter into recognizance . . . with two sureties . . . for keeping the peace towards the complainant (his wife)â).
successfully demanded sureties when they feared future domestic violence. See, e.g., Records of the Courts of Quarter Sessions and Common Pleas of Bucks County, Pennsylvania, 1684â1700, pp. 80â81 (1943) (detailing surety demanded upon allegations that a husband was âabusive to [his wife] that she was afraid of her Life & of her Childrns lifesâ); see also Heynâs Case, 2 Ves. & Bea. 182, 35 Eng. Rep. 288 (Ch. 1813) (1822) (granting wifeâs request to order her husband who committed âvarious acts of ill usage and threatsâ to âfind sufficient suretiesâ); Anonymous, 1 S. C. Eq. 113 (1785) (order requiring husband to âenter into recognizance . . . with two sureties . . . for keeping the peace towards the complainant (his wife)â).
3
Although surety laws shared a common justification with §922(g)(8), surety laws imposed a materially different burden. Critically, a surety demand did not alter an individualâs right to keep and bear arms. After providing sureties, a person kept possession of all his firearms; could purchase additional firearms; and could carry firearms in public and private. Even if he breached the peace, the only penalty was that he and his sureties had to pay a sum of money. 4 Blackstone 250. To disarm him, the Government would have to take some other action, such as imprisoning him for a crime. See Feldman, 47 Cambridge L. J., at 101.
By contrast, §922(g)(8) strips an individual of his Second Amendment right. The statuteâs breadth cannot be overstated. For one, §922(g) criminalizes nearly all conduct related to covered firearms and ammunition. Most fundamentally, possession is prohibited, except in the rarest of circumstances. See, e.g., United States v. Rozier, 598 F. 3d 768, 771 (CA11 2010) (per curiam) (concluding that it was âirrelevantâ whether defendant âpossessed the handgun for purposes of self-defense (in his home)â); United States v. Gant, 691 F. 2d 1159, 1162 (CA5 1982) (affirming conviction of a business owner under §922(g) predecessor statute for briefly possessing a firearm to ward off suspected robbers). Courts of Appeals have understood âpossessionâ broadly, upholding convictions where a person âpicked up . . . three firearms for a few seconds to inspectâ each, United States v. Matthews, 520 F. 3d 806, 807 (CA7 2008), or âmade direct contact with the firearm by sitting on it,â United States v. Johnson, 46 F. 4th 1183, 1189 (CA10 2022). They have also construed §922(g) to bar âconstructive possessionâ of a firearm, including, for example, ammunition found in a jointly occupied home. See, e.g., United States v. Stepp, 89 F. 4th 826, 832â835 (CA10 2023).
Moreover, §922(g) captures virtually all commercially available firearms and ammunition. It prohibits possessing a firearm âin or affecting commerceâ and âreceiv[ing] any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.â §922(g). As courts have interpreted that nexus, if a firearm or ammunition has at any point crossed interstate lines, it is regulated by §922(g). See Scarborough v. United States, 431 U. S. 563, 566â567 (1977) (holding §922(g)âs predecessor statute covered firearm that âhad previously traveled in interstate commerceâ); United States v. Lemons, 302 F. 3d 769, 772 (CA7 2002) (affirming conviction under §922(g) for possessing firearm that âcrossed into Wisconsin after its manufacture at some indeterminate moment in timeâ possibly years before it was discovered in [the defendantâs] possessionâ).6 In fact, the statute goes even further by regulating not only ammunition but also all constituent parts of ammunitionâmany of which are parts with no dangerous function on their own. See 18 U. S. C. §921(a)(17)(A).
These sweeping prohibitions are criminally enforced. To violate the statute is a felony, punishable by up to 15 years. §924(a)(8). That felony conviction, in turn, triggers a permanent, life-long prohibition on exercising the Second Amendment right. See §922(g)(1).
The combination of the Governmentâs sweeping view of the firearms and ammunition within its regulatory reach and the broad prohibition on any conduct regarding covered firearms and ammunition makes §922(g)(8)âs burden unmistakable: The statute revokes a citizenâs Second Amendment right while the civil restraining order is in place. And, that revocation is absolute. It makes no difference if the covered individual agrees to a no-contact order, posts a bond, or even moves across the country from his former domestic partnerâthe bar on exercising the Second Amendment right remains. See United States v. Wilkey, 2020 WL 4464668, *1 (D Mont., Aug. 4, 2020) (defendant agreed to Florida protection order so he could ââjust walk awayââ and was prosecuted several years later for possessing firearms in Montana).
That combination of burdens places §922(g)(8) in an entirely different stratum from surety laws. Surety laws preserve the Second Amendment right, whereas §922(g)(8) strips an individual of that right. While a breach of a surety demand was punishable by a fine, §922(g)(8) is punishable by a felony conviction, which in turn permanently revokes an individualâs Second Amendment right. At base, it is difficult to imagine how surety laws can be considered relevantly similar to a complete ban on firearm ownership, possession, and use.
This observation is nothing new; the Court has already recognized that surety laws impose a lesser relative burden on the Second Amendment right. In Bruen, the Court explained that surety laws merely âprovide financial incentives for responsible arms carrying.â 597 U. S., at 59. â[A]n accused arms-bearer âcould go on carrying without criminal penaltyâ so long as he âpost[ed] money that would be forfeited if he breached the peace or injured others.ââ Id., at 56â57 (quoting Wrenn v. District of Columbia, 864 F. 3d 650, 661 (CADC 2017); alteration in original). As a result, we held that surety laws were not analogous to New Yorkâs effective ban on public carry. 597 U. S., at 55. That conclusion is damning for §922(g)(8), which burdens the Second Amendment right even more with respect to covered individuals.
Surety laws demonstrate that this case should have been a âstraightforwardâ inquiry. Id., at 27. The Government failed to produce a single historical regulation that is relevantly similar to §922(g)(8). Rather, §922(g)(8) addresses a societal problemâthe risk of interpersonal violenceââthat has persisted since the 18th century,â yet was addressed âthrough [the] materially different meansâ of surety laws. Id., at 26.
C
The Court has two rejoinders, surety and affray laws. Neither is a compelling historical analogue. As I have explained, surety laws did not impose a burden comparable to §922(g)(8). And, affray laws had a dissimilar burden and justification. The Court does not reckon with these vital differences, asserting that the disagreement is whether surety and affray laws must be an exact copy of §922(g)(8). Ante, at 16. But, the historical evidence shows that those laws are worldsânot degreesâapart from §922(g)(8). For this reason, the Courtâs argument requires combining aspects of surety and affray laws to justify §922(g)(8). This piecemeal approach is not what the Second Amendment or our precedents countenance.
Despite the foregoing evidence, the Court insists that surety laws in fact support §922(g)(8). To make its case, the Court studiously avoids discussing the full extent of §922(g)(8)âs burden as compared to surety laws. The most the Court does is attack Bruenâs conclusion that surety laws were less burdensome than a public carry ban. The Court reasons that Bruen dealt with a âbroad prohibitory regimeâ while §922(g)(8) applies to only a subset of citizens. Ante, at 15â16. Yet, that was only one way in which Bruen distinguished a public carry ban from surety lawsâ burden. True, Bruen noted that, unlike the public carry ban, surety laws did not restrict the general citizenry. But, Bruen also plainly held that surety laws did not âconstitut[e] a âsevereâ restraint on public carry, let alone a restriction tantamount to a ban.â 597 U. S., at 59. In fact, that conclusion is repeated throughout the opinion. Id., at 55â59 (surety laws âwere not bans on public carryâ; âsurety laws did not prohibit public carryâ; surety laws âwere not viewed as substantial restrictions on public carryâ; and âsurety statutes did not directly restrict public carryâ). Bruenâs conclusion is inescapable and correct. Because surety laws are not equivalent to an effective ban on public carry, they do not impose a burden equivalent to a complete ban on carrying and possessing firearms.
Next, the Court relies on affray laws prohibiting âriding or going armed, with dangerous or unusual weapons, [to] terrif[y] the good people of the land.â 4 Blackstone 149 (emphasis deleted). These laws do not justify §922(g)(8) either. As the Court concedes, why and how a historical regulation burdened the right of armed self-defense are central considerations. Ante, at 7. Affray laws are not a fit on either basis.
First, affray laws had a distinct justification from §922(g)(8) because they regulated only certain public conduct that injured the entire community. An affray was a âcommon Nusanc[e],â 1 Hawkins, Pleas of the Crown, at 135, defined as âthe fighting of two or more persons in some public place, to the terror of his majestyâs subjects,â 4 Blackstone 145. Even though an affray generally required âactual violence,â certain other conduct could suffice. 1 R. Burn, The Justice of the Peace, and Parish Officer 13 (2d ed. 1756). As relevant here, an affray included arming oneself âwith dangerous and unusual weapons, in such a manner as [to] naturally cause a terror to the peopleââi.e., âgoing armed.â Ibid. Many postfounding going armed laws had a self-defense exception: A person could âgo armed with a[n] . . . offensive and dangerous weaponâ so long as he had âreasonable cause to fear an assault or other injury.â Mass. Rev. Stat., ch. 134, §16 (1836); see also 1838 Terr. of Wis. Stat. §16, p. 381; 1851 Terr. of Minn. Rev. Stat., ch. 112, §18.
Affrays were defined by their public nature and effect. An affray could occur only in âsome public place,â and captured only conduct affecting the broader public. 4 Blackstone 145. To that end, going armed laws did not prohibit carrying firearms at home or even public carry generally. See Bruen, 597 U. S., at 47â50. Instead, they targeted only public carry that was âaccompanied with such circumstances as are apt to terrify the people.â 1 Burn, Justice of the Peace, at 13; see Bruen, 597 U. S., at 50 (explaining that going armed laws âprohibit bearing arms in a way that spreads âfearâ or âterrorâ among the peopleâ).
Affrays were intentionally distinguished from assaults and private interpersonal violence on that same basis. See Cash v. State, 2 Tenn. 198, 199 (1813) (âIt is because the violence is committed in a public place, and to the terror of the people, that the crime is called an affray, instead of assault and batteryâ); Nottingham v. State, 227 Md. App. 592, 602, 135 A. 3d 541, 547 (Md. 2016) (â[U]nlike assault and battery,â affray is ânot a crime against the person; rather, affray is a crime against the publicâ (internal quotation marks omitted)). As treatises shortly before the founding explain, âthere may be an Assault which will not amount to an Affray; as where it happens in a private Place, out of the hearing or seeing of any, except the Parties concerned; in which Case it cannot be said to be to the Terror of the People.â 1 Hawkins, Pleas of the Crown, at 134; see 1 Burn, Justice of the Peace, at 13. Affrays thus did not cover the very conduct §922(g)(8) seeks to preventâinterpersonal violence in the home.
Second, affray laws did not impose a burden analogous to §922(g)(8). They regulated a niche subset of Second Amendment-protected activity. As explained, affray laws prohibited only carrying certain weapons (âdangerous and unusualâ) in a particular manner (âterrifying the good people of the landâ without a need for self-defense) and in particular places (in public). Meanwhile, §922(g)(8) prevents a covered person from carrying any firearm or ammunition, in any manner, in any place, at any time, and for any reason. Section 922(g)(8) thus bans all Second Amendmentprotected activity. Indeed, this Court has already concluded that affray laws do not impose a burden âanalogous to the burden created byâ an effective ban on public carry. Bruen, 597 U. S., at 50. Surely, then, a law that imposes a public and private ban on a covered individual cannot have an analogous burden either.
The Court counters that since affray laws âprovided for imprisonment,â they imposed a lesser burden than §922(g)(8)âs disarmament. Ante, at 14. But, that argument serves only to highlight another fundamental difference: Affray laws were criminal statutes that penalized past behavior, whereas §922(g)(8) is triggered by a civil restraining order that seeks to prevent future behavior. Accordingly, an affrayâs burden was vastly harder to impose. To imprison a person, a State had to prove that he committed the crime of affray beyond a reasonable doubt. The Constitution provided a bevy of protections during that processâincluding a right to a jury trial, counsel, and protections against double jeopardy. See Amdts. 5, 6.
The imposition of §922(g)(8)âs burden, however, has far fewer hurdles to clear. There is no requirement that the accused has actually committed a crime; instead, he need only be prohibited from threatening or using force, or pose a âcredible threatâ to an âintimate partner or child.â §922(g)(8)(C). Section 922(g)(8) thus revokes a personâs Second Amendment right based on the suspicion that he may commit a crime in the future. In addition, the only process required before that revocation is a hearing on the underlying court order. §922(g)(8)(A). During that civil hearingâwhich is not even about §922(g)(8)âa person has fewer constitutional protections compared to a criminal prosecution for affray. Gone are the Sixth Amendmentâs panoply of rights, including the rights to confront witnesses and have assistance of counsel, as well as the Fifth Amendmentâs protection against double jeopardy. See Turner v. Rogers, 564 U. S. 431, 441 (2011) (â[T]he Sixth Amendment does not govern civil casesâ); Hudson v. United States, 522 U. S. 93, 99 (1997) (âThe [Double Jeopardy] Clause protects only against the imposition of multiple criminal punishments for the same offenseâ). Civil proceedings also do not require proof beyond a reasonable doubt, and some States even set aside the rules of evidence, allowing parties to rely on hearsay. See, e.g., Wash. Rule Evid. 1101(c)(4) (2024) (providing the state rules of evidence âneed not be appliedâ to applications for protection orders (boldface and capitalization deleted)); Cal. Civ. Proc. Code Ann. §527.6(i) (West Supp. 2024) (judge âshall receive any testimony that is relevantâ and issue order based on clear and convincing evidence). The differences between criminal prosecutions and civil hearings are numerous and consequential.
Affray laws are wide of the mark. While the Second Amendment does not demand a historical twin, it requires something closer than affray laws, which expressly carve out the very conduct §922(g)(8) was designed to prevent (interpersonal violence in the home). Nor would I conclude that affray lawsâcriminal laws regulating a specific type of public carryâare analogous to §922(g)(8)âs use of a civil proceeding to bar all Second Amendment-protected activity.
2
The Court recognizes that surety and affray laws on their own are not enough. So it takes pieces from each to stitch together an analogue for §922(g)(8). Ante, at 13. Our precedents foreclose that approach. The question before us is whether a single historical law has both a comparable burden and justification as §922(g)(8), not whether several laws can be cobbled together to qualify. As Bruen explained, âdetermining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulationsââ the historical and modern regulationsââare ârelevantly similar.ââ 597 U. S., at 28â29. In doing so, a court must consider whether that single historical regulation âimpose[s] a comparable burden on the right of armed self-defense and whether that burden is comparably justified.â Id., at 29 (emphasis added).
The Courtâs contrary approach of mixing and matching historical lawsârelying on one lawâs burden and another lawâs justificationâdefeats the purpose of a historical inquiry altogether. Given that imprisonment (which involved disarmament) existed at the founding, the Government can always satisfy this newly minted comparable-burden requirement. See ante, at 14â15. That means the Government need only find a historical law with a comparable justification to validate modern disarmament regimes. As a result, historical laws fining certain behavior could justify completely disarming a person for the same behavior. That is the exact sort of âregulatory blank checkâ that Bruen warns against and the American people ratified the Second Amendment to preclude. 597 U. S., at 30.
Neither the Court nor the Government identifies a single historical regulation with a comparable burden and justification as §922(g)(8). Because there is none, I would conclude that the statute is inconsistent with the Second Amendment
IV
The Government, for its part, tries to rewrite the Second Amendment to salvage its case. It argues that the Second Amendment allows Congress to disarm anyone who is not âresponsibleâ and âlaw-abiding.â Not a single Member of the Court adopts the Governmentâs theory. Indeed, the Court disposes of it in half a pageâand for good reason. Ante, at 17. The Governmentâs argument lacks any basis in our precedents and would eviscerate the Second Amendment altogether.
A
The Governmentâs position is a bald attempt to refashion this Courtâs doctrine. At the outset of this case, the Government contended that the Court has already held the Second Amendment protects only âresponsible, law-abidingâ citizens. Brief for United States 6, 11â12. The plain text of the Second Amendment quashes this argument. The Amendment recognizes âthe right of the people to keep and bear Arms.â (Emphasis added.) When the Constitution refers to âthe people,â the term âunambiguously refers to all members of the political community.â Heller, 554 U. S., at 580; see also id., at 581 (beginning its analysis with the strong âpresumption that the Second Amendment right . . . belongs to all Americansâ). The Governmentâs claim that the Court already held the Second Amendment protects only âlaw-abiding, responsible citizensâ is specious at best.7 See ante, at 17.
At argument, the Government invented yet another position. It explained that when it used the term âresponsibleâ in its briefs, it really meant ânot dangerous.â See Tr. of Oral Arg. 10â11. Thus, it posited that the Second Amendment protects only law-abiding and non-dangerous citizens. No matter how many adjectives the Government swaps out, the fact remains that the Court has never adopted anything akin to the Governmentâs test. In reality, the âlaw-abiding, dangerous citizenâ test is the Governmentâs own creation, designed to justify every one of its existing regulations. It has no doctrinal or constitutional mooring.
The Government finally tries to cram its dangerousness test into our precedents. It argues that §922(g)(8) and its proffered historical laws have a shared justification of disarming dangerous citizens. The Government, however, does not draw that conclusion by examining the historical justification for each law cited. Instead, the Government simply looksâfrom a modern vantage pointâat the mix of laws and manufactures a possible connection between them all. Yet, our task is to âassess whether modern firearms regulations are consistent with the Second Amendmentâs text and historical understanding.â Bruen, 597 U. S., at 26 (emphasis added). To do so, we must look at the historical lawâs justification as articulated during the relevant time periodânot at modern post-hoc speculations. See, e.g., id., at 41â42, 48â49; Heller, 554 U. S., at 631â632. As I have explained, a historically based study of the evidence reveals that the Governmentâs position is untenable. Supra, at 7-13.
As it does today, the Court should continue to rebuff the Governmentâs attempts to rewrite the Second Amendment and the Courtâs precedents interpreting it.
B
The Governmentâs âlaw-abiding, dangerous citizenâ theory is also antithetical to our constitutional structure. At bottom, its test stems from the idea that the Second Amendment points to general principles, not a historically grounded right. And, it asserts that one of those general principles is that Congress can disarm anyone it deems âdangerous, irresponsible, or otherwise unfit to possess arms.â Brief for United States 7. This approach is wrong as a matter of constitutional interpretation, and it undermines the very purpose and function of the Second Amendment.
The Second Amendment recognizes a pre-existing right and that right was âenshrined with the scopeâ it was âunderstood to have when the people adopted [the Amendment].â Heller, 554 U. S., at 634â635. Only a subsequent constitutional amendment can alter the Second Amendmentâs terms, âwhether or not future legislatures or . . . even future judges think [its original] scope [is] too broad.â Id., at 635.
Yet, the Governmentâs âlaw-abiding, dangerous citizenâ testâand indeed any similar, principle-based approachâ would hollow out the Second Amendment of any substance. Congress could impose any firearm regulation so long as it targets âunfitâ persons. And, of course, Congress would also dictate what âunfitâ means and who qualifies. See Tr. of Oral Arg. 7, 51. The historical understanding of the Second Amendment right would be irrelevant. In fact, the Government posits that Congress could enact a law that the Founders explicitly rejected. See id., at 18 (agreeing that modern judgment would override â[f]ounding-[e]ra applicationsâ). At base, whether a person could keep, bear, or even possess firearms would be Congressâs policy choice under the Governmentâs test.
That would be the direct inverse of the Foundersâ and ratifying publicâs intent. Instead of a substantive right guaranteed to every individual against Congress, we would have a right controlled by Congress. âA constitutional guarantee subject to future judgesâ [or Congressesâ] assessments of its usefulness is no constitutional guarantee at all.â Heller, 554 U. S., at 634. The Second Amendment is âthe very product of an interest balancing by the people.â Id., at 635. It is this policy judgmentânot that of modern and future Congressesââthat demands our unqualified deference.â Bruen, 597 U. S., at 26.
The Governmentâs own evidence exemplifies the dangers of approaches based on generalized principles. Before the Court of Appeals, the Government pointed to colonial statutes âdisarming classes of people deemed to be threats, including . . . slaves, and native Americans.â Supp. Brief for United States in No. 21â11001 (CA5), p. 33. It argued that since early legislatures disarmed groups considered to be âthreats,â a modern Congress has the same authority. Ibid. The problem with such a view should be obvious. Far from an exemplar of Congressâs authority, the discriminatory regimes the Government relied upon are cautionary tales. They warn that when majoritarian interests alone dictate who is âdangerous,â and thus can be disarmed, disfavored groups become easy prey. One of many such examples was the treatment of freed blacks following the Civil War. â[M]any of the over 180,000 African-Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks.â McDonald v. Chicago, 561 U. S. 742, 771 (2010). Some âStates formally prohibited AfricanAmericans from possessing firearms.â Ibid. And, â[t]hroughout the South, armed parties . . . forcibly took firearms from newly freed slaves.â Id., at 772. âIn one town, the marshal took all arms from returned colored soldiers, and was very prompt in shooting the blacks whenever an opportunity occurred.â Ibid. (alterations and internal quotation marks omitted). A constitutional amendment was ultimately ânecessary to provide full protection for the rights of blacks.â Id., at 775.
The Government peddles a modern version of the governmental authority that led to those historical evils. Its theory would allow federal majoritarian interests to determine who can and cannot exercise their constitutional rights. While Congress cannot revive disarmament laws based on race, one can easily imagine a world where political minorities or those with disfavored cultural views are deemed the next âdangersâ to society. Thankfully, the Constitution prohibits such laws. The âvery enumeration of the [Second Amendment] right takes out of the hands of government . . . the power to decide on a case-by-case basis whether the right is really worth insisting upon.â Heller, 544 U. S., at 634.
The Court rightly rejects the Governmentâs approach by concluding that any modern regulation must be justified by specific historical regulations. See ante, at 10â15. But, the Court should remain wary of any theory in the future that would exchange the Second Amendmentâs boundary lineâ âthe right of the people to keep and bear Arms, shall not be infringedââfor vague (and dubious) principles with contours defined by whoever happens to be in power.
* * *
This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution. Most States, including Texas, classify aggravated assault as a felony, punishable by up to 20 yearsâ imprisonment. See Tex. Penal Code Ann. §§22.02(b), 12.33 (West 2019 and Supp. 2023). Assuming C. M.âs allegations could be proved, Texas could have convicted and imprisoned Rahimi for every one of his alleged acts. Thus, the question before us is not whether Rahimi and others like him can be disarmed consistent with the Second Amendment. Instead, the question is whether the Government can strip the Second Amendment right of anyone subject to a protective orderâeven if he has never been accused or convicted of a crime. It cannot. The Court and Government do not point to a single historical law revoking a citizenâs Second Amendment right based on possible interpersonal violence. The Government has not borne its burden to prove that §922(g)(8) is consistent with the Second Amendmentâs text and historical understanding.
The Framers and ratifying public understood âthat the right to keep and bear arms was essential to the preservation of liberty.â McDonald, 561 U. S., at 858 (THOMAS, J., concurring in part and concurring in judgment). Yet, in the interest of ensuring the Government can regulate one subset of society, todayâs decision puts at risk the Second Amendment rights of many more. I respectfully dissent.
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