The Supreme Court Just Made an 8-1 Mad Dash Away From Clarence Thomas’ Extremism

The Supreme Court upheld a federal law disarming domestic abusers on Friday, significantly narrowing a radical 2022 precedent in the process. Its 8–1 ruling in U.S. v. Rahimi is a major victory for gun safety laws, a much-needed reprieve after two years of unceasing hostility from the federal judiciary. Chief Justice John Roberts’ majority opinion walked back maximalist rhetoric—recklessly injected into the law by Justice Clarence Thomas—that had imperiled virtually every modern regulation limiting access to firearms. Thomas was the lone dissenter, signifying the rest of the court’s mad dash away from his extremist position on the Second Amendment.

Rahimi involves a violent criminal, Zackey Rahimi, who beat his girlfriend, then fired shots at either her or a witness as she fled his abuse. His girlfriend subsequently obtained a restraining order from a state court that found that he posed “a credible threat” to her “physical safety.” Rahimi, however, continued harassing her, threatened a different woman with a firearm, and was identified as the suspect in at least five additional shootings. When the police searched his apartment, they found a pistol, a rifle, ammunition, and a copy of the restraining order.

Rahimi was indicted under a federal law that bars individuals from possessing firearms while subject to a restraining order for domestic violence. He argued that this statute violated his Second Amendment rights, and the U.S. Court of Appeals for the 5^th Circuit agreed. The court rested its analysis on New York State Rifle and Pistol Association v. Bruen, the Supreme Court’s 2022 decision establishing a constitutional right to carry firearms in public. Thomas’ opinion in Bruen, though, went much further than that specific holding, declaring that all restrictions on the right to bear arms are presumptively unconstitutional unless they have a sufficient set of “historical analogues” from the distant past. (He didn’t bother to clarify the precise era, but it seemed to be sometime between 1791 and 1868.)

That approach posed two fundamental problems, which the lower courts quickly encountered when trying to apply Bruen: First, judges are not historians and cannot parse the complex, often incomplete record in this area with any consistency or reliability; and second, modern problems require modern solutions, especially when past bigotry prevented lawmakers from perceiving those problems in the first place. Rahimi is Exhibit A: Men were generally permitted to abuse their wives in the 18^th and 19^th centuries, with courts hesitant to interfere with what they deemed a private “familial affair.” Countless other examples have arisen in the lower courts since Bruen, with judges creating new rights to scratch the serial number off guns and own firearms while using illegal substances.

Roberts attempted to put a stop to this chaos on Friday. His Rahimi opinion cut back Bruen at every turn. “Some courts,” the chief justice wrote, “have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber.” Rather than hunt for perfect historical analogs, courts should ask “whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” If old laws regulated guns to “address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations.” Today’s regulations should generally avoid imposing restrictions “beyond what was done at the founding,” but the modern law need not “precisely match its historical precursors.” Roberts’ test significantly broadens (or perhaps loosens) the constitutional inquiry beyond what Bruen allowed. It instructs courts to look at principles, at a fairly high level of generality, rather than demanding a near-perfect match from centuries past.

The difference between Rahimi and Bruen is perfectly captured by Roberts’ majority opinion and the lone dissent written by Bruen’s own author, Thomas. The chief justice asserted, “The government offers ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” He breezily walked through a smattering of history allowing for the seizure of arms to preserve “public order.” For proof, Roberts cited surety laws, legislation that required an individual “suspected of future misbehavior” to post a bond, which he would forfeit if he engaged in misconduct. Domestic abusers could, in theory, be subject to the surety system, as could individuals who misused firearms—and that was good enough for Roberts. To him, this evidence established a historical practice of “preventing individuals who threaten physical harm to others from misusing firearms.” And disarming abusers “fits comfortably within this tradition.”

To Thomas, by contrast, surety laws “are worlds—not degrees—apart” from the law in question, because they were civil (not criminal) measures that did not actually disarm people but merely threatened them with a fine. These laws “did not alter an individual’s right to keep and bear arms,” Thomas protested, and they therefore failed to establish a relevant “history and tradition.” Indeed, “the government does not identify even a single regulation with an analogous burden and justification,” he complained in dissent. In 1791 a man like Zackey Rahimi could be disarmed only after a conviction for a violent crime. And so, Thomas wrote, that must remain the rule today.

Bruen was a 6–3 decision. Yet every justice who joined Thomas’ opinion in Bruen in 2022 signed on to Roberts’ walk back of Bruen on Friday. What happened? Aside from Justice Samuel Alito, every remaining member of the court expressed their views by writing or joining separate concurrences in Rahimi. Justice Brett Kavanaugh tried to defend his beloved “history and tradition” test, as opposed to “a balancing test that churns out the judge’s own policy beliefs,” while creating more room for “precedent” (or “the accumulated wisdom of jurists”). Justice Amy Coney Barrett wrote that Bruen “demands a wider lens” than the 5^th Circuit deployed, explaining that “historical regulations reveal a principle, not a mold,” and do not forever lock us into “late-18^th-century policy choices.” Justice Neil Gorsuch tried to split the difference, marshaling a defense of Bruen while subtly reworking it to limit sweeping legal attacks on gun regulations.

Justice Sonia Sotomayor, joined by Justice Elena Kagan, celebrated the majority’s focus on “principles” instead of perfect analogs. “History has a role to play in Second Amendment analysis,” she wrote, “but a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy.” Justice Ketanji Brown Jackson, who joined the court soon after Bruen came down, warned that Rahimi will not end the “increasingly erratic and unprincipled body of law” that Bruen inspired. “The blame” for the lower courts’ struggles “may lie with us,” she noted, “not with them.” All three liberals sound ready and willing to overturn Bruen altogether if they get the chance—but will, for now, settle for Rahimi’s compromise.

What next? The Supreme Court will have to vacate a spate of lower court decisions that used Bruen to strike down seemingly sensible gun safety laws, ordering a do-over in light of Rahimi. Some courts will gladly accept the message. Others, like the lawless 5^th Circuit, will probably interpret Thomas’ dissent on Friday as the law and refuse to change their tune. Such defiance will test the majority’s commitment to a more workable and balanced Second Amendment jurisprudence—and likely fracture the court once more. By replacing Thomas’ hard-line views with a more malleable standard, SCOTUS has ended one battle over guns. But by remaining in this area, where it has no right to be in the first place, the court has invited a thousand more.

This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)