Gun-free restaurants. An assault weapons ban. Handgun license requirements.
A series of appellate wins this summer for gun-control laws show how some federal appeals courts are applying the US Supreme Court’s 2024 United States v. Rahimi decision to uphold firearm restrictions, according to practitioners, law professors, judges, and court watchers.
The high court’s 2022 Bruen decision “raised the bar” for upholding such restrictions, “and Rahimi lowered it,” said Joshua Blackman, a constitutional law professor at South Texas College of Law Houston. “It’s easier now for gun laws to survive court scrutiny without the state having to find a very precise historical precedent.”
‘A Principle, Not a Mold’
Both decisions—N.Y. State Rifle & Pistol Ass’n v. Bruen in 2022 and Rahimi on June 21—require courts to consider if a challenged gun restriction has a historical analog.
Justice
But federal appellate courts have recently embraced language from Justice
Barrett’s concurrence in Rahimi, which upheld a restriction on firearm possession for people subject to domestic violence restraining orders, has been cited by circuit courts in August and September decisions that upheld gun restrictions.
In a Sept. 6 decision allowing some of California’s and Hawaii’s regulations banning guns from “sensitive places” to stay in effect, the US Court of Appeals for the Ninth Circuit said Bruen had “misled some courts into imposing too rigid a test when considering historical sources.” Rahimi, the Ninth Circuit said, “clarified” that courts should instead consider historical regulations with parallel “principles.”
While the Sept. 6 ruling was a mixed bag on the constitutionality of the two state laws, most of the challenged regulations—such as gun-free beaches, parks, bars, and restaurants—were found to pass constitutional muster.
The US Court of Appeals for the Fourth Circuit quoted Barrett’s concurrence in its Aug. 6 decision upholding Maryland’s ban on semiautomatic rifles and other guns deemed assault weapons, and cited it again in its Aug. 23 decision upholding Maryland’s handgun license scheme.
History isn’t a set of “minute instructions,” the majority opinion said in the ruling upholding the assault weapons ban. “This is what we think Justice Barrett meant.”
Barrett’s concurrence was again cited in an Aug. 23 US Court of Appeals for the Sixth Circuit decision upholding a statute barring people with past felony convictions from possessing a firearm. As applied to a man with a robbery conviction, the statute is “consistent with the principles that underpin our regulatory tradition,” the Sixth Circuit said.
The “in principle” analysis has begun to cause friction among circuit court judges, with dissents decrying what they see as a chipping away of Bruen’s more narrow approach to history.
“For judges looking for a way to fill the void in judicial discretion left by Bruen’s elimination of interest-balancing, this highly generalized approach to historical analogizing is the best game in town,” Ninth Circuit Judge Lawrence VanDyke wrote in a Sept. 4 dissent.
VanDyke was opposing the liberal-leaning court’s vote not to vacate and rehear en banc a three-judge panel ruling upholding a federal statute banning guns from defendants out on bail. “Many judges of this court view Rahimi as a license to over-generalize,” VanDyke wrote.
Gun Rights See Success, Too
To be sure, even in the wake of Rahimi, gun rights advocates have notched victories as well.
On July 16, the US Court of Appeals for the Eighth Circuit struck down a Minnesota law barring 18-to-20 year-olds from carrying guns, with the court saying the state hadn’t shown a sufficient historical analogy under Bruen or Rahimi.
And while the US Court of Appeals for the Fifth Circuit said a federal law keeping guns from drug users wasn’t facially unconstitutional, the court on Aug. 28 found it didn’t constitutionally apply to an occasional marijuana user.
“Rahimi should make it easier for laws to be upheld, but what’s been surprising is a lot of courts don’t seem to be reading it that way,” said Jacob Charles, a constitutional law professor at Pepperdine Caruso School of Law. He pointed to district court decisions like an Aug. 21 ruling out of Kansas that tossed a machine gun possession charge on constitutional grounds.
Still, “there was a sense after Bruen that it would become more difficult for states to justify their gun regulations,” said Duke Law School’s Andrew Willinger. And while in some instances that has proven to be the case, judges with a more generalized application of the historical analysis can now cite Rahimi instead of Bruen, Willinger said.
Many decisions are still to come. The Supreme Court recently vacated a US Court of Appeals for the Second Circuit ruling upholding much of New York’s “sensitive places” law for reconsideration in light of Rahimi, and the Second Circuit has yet to issue a new ruling.
“We may get some decisions in the next few months that offer a more careful parsing of Rahimi,” Willinger said.
For attorneys who advocate for gun control measures, the recent application of Rahimi has been “hopeful,” said Shira Feldman, director of constitutional litigation at Brady United Against Gun Violence.
Rahimi has given practitioners like her a doctrinal hook to argue for courts to consider the underlying principle, intentions, and considerations behind a historical analogy. So far, Feldman said, she’s largely seeing a “proper” application of Rahimi from the circuit courts but is waiting to see how more politically mixed circuits apply the case.
F. Lee Francis, a former federal prosecutor, is now representing a defendant bringing a constitutional challenge before the Fourth Circuit to a conviction under a federal statute barring drug users from possessing a gun. That statute doesn’t hold up to scrutiny under Bruen or Rahimi, said Francis, who’s also a constitutional law professor at Widener Law Commonwealth in Pennsylvania.
“Bruen will remain the standard until there’s further clarification,” Francis added, “but what Rahimi does for government counsel is give them a little bit more to work with.”
More Guidance Needed
For critics of Bruen, recent decisions relying on Rahimi have offered solace. But, they said, the standard is still amorphous.
Rahimi “opened the door” for courts to look for a general underlying principle when considering historical analogs, said Richard Bernstein, an appellate lawyer who wrote an amicus brief in Bruen opposing a narrow historical test. “But if you’re a lower court, I think there is still very little guidance as what level of generality should be used for the historical analogizing required by the Supreme Court.”
“There was a lot of disagreement in the lower courts before Rahimi,” said William Patrick Baude, a constitutional law professor at the University of Chicago. “And a lot of the same disagreements are continuing after Rahimi, and will continue until the Court decides some more Second Amendment cases.”
Everytown for Gun Safety, which advocates gun-safety measures, is backed by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg. Everytown filed an amicus brief in the Ninth Circuit “sensitive places” case.
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