The Supreme Court’s decision on June 21, 2024, in U.S. v. Rahimi, overturned the Fifth Circuit Court of Appeals[1] unanimous opinion that 18 U.S.C. §922(g)(8) is unconstitutional because it violates the Second Amendment “right of the people to keep and bear Arms.” This is yet another example of the Supreme Court recently recognizing “a pre-existing right belonging to the American people” that was “codified” in the Second Amendment. Then ignoring “the plain text”— “the right of the people to keep and bear Arms, shall not be infringed”— thereby granting Congress and the Government, at all levels, the ability to pretty much over-regulate this essential right, making it virtually meaningless for too many Americans.
“For over two centuries” the Second Amendment was treated as a second-class right. “Judges and legislators . . . believed . . . that the Second Amendment did not reach possession of firearms for purely private activities.”[2] In other words, it was thought that no individual right “to keep and bear Arms” existed… unbelievable!
Then in 2008, with the decision in District of Columbia v. Heller, the Supreme Court finally held that the Second Amendment protects an individual’s right to keep and bear arms for self-defense. The Court struck down a District of Columbia (D.C.) law that banned the possession of handguns in the home.
Two years later, the Supreme Court extended the Second Amendment’s protection to the states through the Fourteenth Amendment’s Due Process Clause. Justice Alito delivered the majority opinion, concluding that the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. As a result of McDonald v. City of Chicago (2010), State and local governments cannot completely ban handgun possession by private citizens for lawful purposes such as self-defense.
Despite, or rather, because of the dismal performance of the Supreme Court in the Heller and McDonald decisions, State and local governments continued to pass laws restricting the ability of private citizens to exercise their Second Amendment right for self-defense. Then 14 years after Heller, in New York State Rifle & Pistol Association (Bruen), decided June 23, 2022, Second Amendment jurisprudence began to look much more promising, “We . . . now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
Unfortunately, buried in the 135-pages of verbiage in the Bruen decision are details as to how the States and local municipalities can continue to deny the rights of citizens “to keep and bear Arms.” For example, “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” “. . . we are also aware of no disputes regarding the lawfulness of such prohibitions. . . modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible. . . the right to bear commonly used arms in public [is] subject to certain reasonable, well-defined restrictions.”
Justice Thomas delivered the majority opinion in Bruen, while Justice Alito delivered a concurring opinion in response to the dissenting opinion by Justice Breyer, i.e., “the real thrust of today’s dissent is that guns are bad and that the States and local jurisdictions should be free to restrict them essentially as they see fit.” Then Alito mucks up the waters by writing, “Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. . . Nor have we disturbed anything . . . about restrictions that may be imposed on the possession or carrying of guns.”
Not to be outdone, Justice Kavanaugh’s concurring opinion reaffirmed Alito’s position— “Our holding decides nothing . . . nor have we disturbed anything”—by providing a roadmap for States and local municipalities to continue to interfere with an individual’s right to keep and bear arms. Kavanaugh wrote, “the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense [and] regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.” Kavanaugh further explained, “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” are acceptable.
The ink had yet to dry on the Bruen decision, and according to Dr. John R. Lott, Jr.,[3] Crime Prevention Research Center (CPRC), “. . . states are putting all sorts of roadblocks to people getting concealed handgun permits. For example, New York is proposing asking for access to people’s social media accounts to determine if they can be trusted with guns . . . they have a very long list of prohibited places [where you cannot carry a firearm] and 18 hours of training.”
After 14 years since Heller, the Bruen decision in 2022 had been heralded as a monumental achievement for gun rights and self-defense. BUT, from a practical standpoint, nothing has changed. In Washington D.C. (Heller), in the City of Chicago (McDonald), and in New York City (Bruen), most people living in those jurisdictions are still unable to exercise their Second Amendment right, are defenseless, and are at the mercy of hardened criminals. Why?!
Because the Supreme Court has provided a roadmap for State and local jurisdictions to effectively make the “right to bear arms in public for self-defense . . . ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees’.”
Unfortunately, on June 21, 2024, in U.S. v. Rahimi, the majority continued to ignore the last four words in the Second Amendment or the “plain text” i.e., “shall not be infringed.” In Justice Thomas’ dissent, he concluded,
“The Framers and ratifying public understood ‘that the right to keep and bear arms was essential to the preservation of liberty.’ Yet, in the interest of ensuring the Government can regulate one subset of society, today’s decision puts at risk the Second Amendment rights of many more. I respectfully dissent.”
Chief Justice Roberts delivered the majority opinion (18-pages). Concurring opinions were delivered by Justices Sotomayor (6-pages), Jackson (7-pages), Barrett (5-pages), Kavanaugh (24-pages), and Gorsuch (7-pages). Justice Clarence Thomas’ dissent was 32 pages. Only two Justices, Alito and Kagan had nothing to say; they joined the majority opinion and Kagan also joined Sotomayor’s concurring opinion.
Here's a few excerpts from Justice Sotomayor’s concurring opinion, along with my comments:
Sotomayor’s Opinion:
“Today, the Court applies its decision in . . . Bruen, for the first time. Although I continue to believe that Bruen was wrongly decided.”
Commentary:
Sotomayor despises the Second Amendment and wants the Government to be able to restrict the ability of law-abiding citizens to be able to defend themselves.
Sotomayor’s Opinion:
“I write separately to highlight why the Court’s interpretation of Bruen, and not the dissent’s [Justice Thomas], is the right one.”
Commentary:
Her 6-page rebuttal is full of generalities, while Justice Thomas’ 32-page dissent addresses every argument put forth by the Government and shreds every justification by the majority in support of the statute in question, e.g., the statute in question “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 person’s criminal history . . . And, [it] does not distinguish contested orders from joint orders—for example, when parties voluntarily enter a no-contact agreement or when both parties seek a restraining order.” “In addition, [the statute] strips an individual of his ability to possess firearms and ammunition without any due process. Rather, the ban is an automatic, uncontestable consequence of certain orders. . . There is no hearing or opportunity to be heard on the statute’s applicability, and a court need not decide whether a person should be disarmed. . . Despite [the] broad scope and lack of process, it carries strong penalties. Any violation . . . is a felony punishable by up to 15 years imprisonment. And, a conviction for violating [the statute] itself triggers a permanent, life-long prohibition on possessing firearms and ammunition.”
Sotomayor’s Opinion:
“. . . the Government has not identified a founding-era or Reconstruction-era law that specifically disarmed domestic abusers, but it did not need to do so.”
Commentary:
Rather than follow the law—when you don’t like it—Sotomayor is more than willing to be flexible and re-write the Constitution, granting more power to Government at the expense of individual freedom.
For example, Sotomayor remains a vocal critic of laws that limit reproductive freedom or abortion on demand, i.e., she believes in “My Body, My Choice.” On the other hand, she consistently upheld New York City’s COVID-19 vaccine mandate for municipal workers. She rejected challenges to the policy by individual municipal workers and a group called New Yorkers for Religious Liberty. In October 2021, she denied an appeal from teachers seeking to block the vaccine mandate for public school teachers and staff… “My Body, My Choice.” … well, maybe not when it comes to vaccines. What a hypocrite!
Sotomayor’s Opinion:
“The dissent reaches a different conclusion by applying the strictest possible interpretation of Bruen. It picks off the Government’s historical sources one by one, viewing any basis for distinction as fatal.”
Commentary:
Justice Thomas, the dissent, is the only one of nine Justices willing to follow the law and NOT compromise, granting Government the ability to make the “right to keep and bear Arms” meaningless… a second-class right. He certainly did pick off “the Government’s historical sources one by one” explaining in detail why each one was not relevant!
Sotomayor’s Opinion:
“The dissent [Justice Thomas] criticizes this Court for adopting a more ‘piecemeal approach’ that distills principles from a variety of historical evidence rather than insisting on a precise historical analogue.”
Commentary:
Unfortunately, for the past 87 years (since 1937), the Supreme Court has consistently either ignored, purposely misinterpreted, or has re-written constitutional provisions favoring government power and control at the expense of individual freedom, leaving Americans “with a constitutional carcass.” This case is no different. As explained by Justice Thomas, “The Court’s contrary approach of mixing and matching historical laws—relying on one law’s burden and another law’s justification—defeats the purpose of a historical inquiry altogether,” which is required under the Bruen precedent.
Sotomayor’s Opinion:
“If the dissent’s interpretation of Bruen were the law, then Bruen really would be the ‘one-way ratchet’ that I and the other dissenters in the Bruen case feared, ‘disqualifying virtually any ‘representative historical analogue’ and making it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security’.”
Commentary:
“Common-sense regulations” … the likes of Sotomayor and her ilk have never found a regulation they disagree with when it comes to the Second Amendment “right to keep and bear Arms shall not be infringed.” Evidently, her copy of the Constitution with the Second Amendment has the last four words redacted, “shall not be infringed.”
Sotomayor’s Opinion:
“History has a role to play in Second Amendment analysis, 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.”
Commentary:
She appears to despise the Founders/Framers and has no respect for the Constitution, e.g., she was a student of Harvard Professor Laurence Tribe and a former law clerk for him. And, of course, she brings up the race card as justification for her beliefs. In addition, I would have thought that a Justice of the Supreme Court would understand that we are a Republic, NOT a democracy!?!
Sotomayor’s Opinion:
“That being said, I remain troubled by Bruen’s myopic focus on history and tradition, which fails to give full consideration to the real and present stakes of the problems facing our society today. . . posed by gun violence.”
Commentary:
In 2020, there were 13,663 homicides committed with guns in the United States; 1,732 homicides committed using knives or cutting instruments; 662 homicides with personal weapons such as hands, fists, feet, clubs, hammers, etc. More lives were lost in 2020 due to motor vehicle accidents (38,824) and unintentional falls (44,630) than by “gun violence.” Even more problematic, an estimated 250,000 deaths were caused by medical errors, i.e., medical malpractice ranks as the third leading cause of death in the U.S., following heart disease and cancer.
Seems like we have bigger problems than “gun violence.” Guns are tools… these tools don’t jump off the table and shoot people, people shoot people. Maybe we should send Sotomayor a copy of More Guns, Less Crime… she might learn something, i.e., if she really wants to reduce “gun violence,” make it easier for law-abiding citizens “to keep and bear Arms.” Follow the Constitution… don’t re-write it!
Also, the problems our society is facing today are no different from the past. As Dr. Will Durant explained, in The Lessons of History, “Since we have admitted no substantial change in man’s nature during historic times, all technological advances will have to be written off as merely new means of achieving old ends—the acquisition of goods, the pursuit of one sex by the other (or by the same), the overcoming of competition, the fighting of wars. One of the discouraging discoveries of our disillusioning century is that science is neutral: it will kill for us as readily as it will heal, and will destroy for us more readily than it can build.”
Sotomayor is ignorant of history and the problems we face today have nothing to do with tools or guns, and much more to do with the growth of Government, supported by the Supreme Court.
Sotomayor’s Opinion:
“. . . neither party asks the Court to reconsider Bruen at this time, and that question would of course involve other considerations than whether Bruen was rightly decided.”
Commentary:
Sotomayor does not like the idea of the Second Amendment being an individual right to keep and bear arms for self-defense. If she did, she would be in favor of Bruen and supporting the dissent’s (Thomas) opinion. But, of course, she dissented in Bruen and would certainly like to see this precedent disappear. Unfortunately, the majority’s opinion in U.S. v. Rahimi, certainly waters-down the precedent established in Bruen.
Sotomayor’s Opinion:
“I join in full the Court’s opinion, which offers a more helpful model than the dissent for lower courts struggling to apply Bruen.”
Justice Sotomayor, as previously stated, was a student of Harvard Professor Laurence Tribe, along with being his law clerk. Professor Tribe has written, “. . . to defy popular will in order to do what they [i.e. unelected judges and elected officials] believe the Constitution requires . . . raises questions of legitimacy. . . [T]hose who were framers and ratifiers most assuredly could not be said to speak for any current majority, much less for today’s people as a whole. On the contrary, it is vital that we not lose sight of just how imperfect, and often highly objectionable, our Constitution remains.” Tribe also refers to the Founders as a “highly limited constituency of white property owners . . . with whom most [Americans] have only the most limited link (if any at all), [who decided] to limit our future freedom to exercise power. . .”[4] With a professor and mentor like Tribe, why would Sotomayor respect the Constitution…
Tribe initially expressed reservations about Sotomayor’s appointment to the Supreme Court. In a leaked memo, he bluntly criticized her intellectual heft, suggesting that she was “not as smart as she seems to think she is.” Based upon Sotomayor’s concurring opinion, I agree with Tribe’s initial assessment, i.e., she is “not as smart as she seems to think she is.”
Then we have the most recent addition to the Supreme Court, Justice Jackson, who declared she was not able to define a woman since she was not a biologist. She was educated at Harvard and most likely read Tribe’s American Constitutional Law, in which he wrote:
“. . . sometimes meanings are subject to chronic flux. In particular, documents of considerable . . . importance—like the Constitution—may themselves give new importance to terms previously the beneficiaries of easy consensus [, e.g., “shall not be infringed”], and thereby open the meaning of such terms to new debate.”
“The upshot is that the Constitution’s text, and historical material relevant to the text’s proper understanding, will almost invariably recede into the background behind a parade of precedents, until the Constitution itself begins to seem ‘rather like . . . a remote ancestor who came over on the Mayflower.’ As Robert Post has rightly observed, beginners in constitutional law are often amazed by how little of the Constitution they find in constitutional opinions, which tend to be filled with the elaboration and application of various doctrinal ‘tests’ extracted from prior decisions.”
With an indoctrination as illustrated above, why would we expect anything different from Justice Jackson as she wrote in U.S. v. Rahimi:
“This case tests our Second Amendment jurisprudence as shaped in particular by . . . Bruen. I disagree with the methodology of that decision; I would have joined the dissent had I been a Member of the Court at that time. But Bruen is now binding law. Today’s decision fairly applies that precedent, so I join the opinion in full.”
Of course she joins the majority! Anything that would water-down the precedent established in Bruen—a decision she abhors—is strongly desirable as she explained:
“This discord is striking when compared to the relative harmony that had developed prior to Bruen. To be sure, our decision in . . . Heller (2008), which first recognized an individual right to keep and bear arms for self-defense, was disruptive in its own way. After all, before Heller, ‘the meaning of the Second Amendment had been considered settled by courts and legislatures for over two centuries,’ and ‘judges and legislatures . . properly believed . . . that the Second Amendment did not reach possession of firearms for purely private activities.’”
Jackson’s statement about the Second Amendment jurisprudence being settled for over two centuries comes straight out of Professor Tribe’s treatise on constitutional law. In his third edition, he wrote the following:
“Another illustration of this ‘old is new’ theme is the Second Amendment ‘right of the people to keep and bear arms.’ The second edition of the treatise . . . summed up the then-conventional wisdom that this right belongs principally if not exclusively to the states rather than to individual citizens, and argued that you’d have to climb a pretty steep hill if you had any notion of invoking the amendment as a source of individual rights against the federal government. . .”
“Yet an avalanche of scholarly investigation, including my own research on the subject (not previously published), has required me to revisit the meaning of that amendment, with its peculiar preamble about “a well regulated Militia, being necessary to the security of a free State.’ . . .”
Perhaps that “peculiar preamble” was an attempt by certain constitutional scholars, using “esoteric hermeneutics” and their “intellectual powers to rewrite” the true meaning of the Second Amendment, favoring strict gun control laws. Notice also that Tribe conveniently leaves out the four words following the right to keep and bear arms “shall not be infringed.”
This is the education, or rather, the indoctrination, Justice Jackson received at Harvard Law School. No wonder she included the following in her concurring opinion,
“By underscoring that gun regulations need only ‘comport with the principles underlying the Second Amendment, today’s opinion inches that ball forward. But it is becoming increasingly obvious that there are miles to go. Meanwhile, the Rule of Law suffers. That ideal—key to our democracy—thrives on legal standards that foster stability, facilitate consistency, and promote predictability. So far, Bruen’s history-focused test ticks none of those boxes.”
Justice Jackson, like the other liberals on the Supreme Court, including Sotomayor, believe that “guns are bad and that States and local jurisdictions should be free to restrict them essentially as they see fit.”[5] This is “the real thrust of” the majority opinion in U.S. v. Rahimi.
But why did the conservatives on the Court, except for Justice Thomas, side with the liberals, making it easier for the federal government, the States, and local jurisdictions to effectively make the “right to bear arms in public for self-defense . . . ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees’?”
Perhaps it is because Zackey Rahimi appears to be an extremely disgusting character. If he did everything that was described by Chief Justice Roberts, he should have been criminally prosecuted and in prison for a long time. Instead, Rahimi and his ex-girlfriend (CM) entered into a civil restraining order, where CM asserted that Rahimi assaulted her. As a result, he is charged with the illegal possession of firearms and ammunition, rather than the alleged heinous crimes listed in Chief Justice Roberts’ opinion. Therefore, it appears that the conservative Justices believed that this was an easy way to put a bad guy away, with limited impact on the constitutional right to keep and bear arms as set forth in the Bruen decision.
Here's what Justice Gorsuch wrote in his concurring opinion in support of the liberal position:
“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.’ 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. We do not resolve whether the government may disarm an individual permanently. We do not determine whether §922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense. . . 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.’ ‘Not a single Member of the Court adopts the Government’s theory.’”
Justice Kavanaugh concluded, in support of the liberal Justices:
As the Court’s decision today notes, Second Amendment jurisprudence is still in the relatively early innings, unlike the First, Fourth, and Sixth Amendments, for example. That is because the Court did not have occasion to recognize the Second Amendment’s individual right until recently [Heller, decided 2008]. Deciding constitutional cases in a still-developing area of this Court’s jurisprudence can sometimes be difficult. But that is not a permission slip for a judge to let constitutional analysis morph into policy preferences under the guise of a balancing test that churns out the judge’s own policy beliefs.”
Meanwhile, after 16 years, it may still be another decade or so—since we are “still in the relatively early innings” of “Second Amendment jurisprudence”—before we know whether there are going to be any real limitations placed upon the Government’s ability to interfere with our individual right to “keep and bear Arms.”
The Second Amendment states, “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.” Not only has the Supreme Court ignored four words or the “plain text” i.e., “shall not be infringed,” they have neglected to address the purpose of the Second Amendment. As explained by the late Justice Joseph Story (1779-1845), “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers.” In other words, the Second Amendment empowers the people to rebel, as the American Colonists did, against their own government if said Government violates their rights. That is exactly why the Founders/Framers included those four important words, “shall not be infringed.”
Get a copy of Freedom vs. Democracy, The Supreme Court May Be Our Last Hope, Amazon.com: Freedom vs. Democracy : The Supreme Court May Be Our Last Hope eBook : Beard Jr. , Robert G.: Kindle Store.
Chapter IV is titled, Gun Rights Case Changed Nothing. The Supreme Court not only ignores the four important words— “shall not be infringed”—they explain exactly what laws would be acceptable to them to infringe on “the right of the people to keep and bear Arms.”
The Summary and Conclusion (Chapter XII), in Freedom vs. Democracy, explains the three simple rule changes that the Supreme Court could make to restore individual freedom and private property rights, i.e., “it is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments [by Congress and Government].” Get a paperback copy, highlight your favorite parts. Then send it to a Supreme Court Justice… Clarence Thomas or Neil Gorsuch would be good choices.
Hopefully the Supreme Court will get off their lofty pedestal and do the right thing before it is too late. We may end up following in our Founders’ footsteps, “whenever any Form of Government becomes destructive . . . it is the Right of the People to alter or to abolish it . . .” That’s what our Founders did when the British Government—their Government—tried to confiscate their weapons.
Dum Spiro Spero—While I breathe, I hope.
Slàinte mhath,
Robert (Mike) G. Beard Jr., C.P.A., C.G.M.A., J.D., LL.M.
[1] It’s interesting to note that the three-judge panel included U.S. Circuit Judges Edith Jones, a Ronald Reagan appointee, James Ho and Cory Wilson, both Donald Trump appointees.
[2] Justice Jackson’s concurring opinion, U.S. v. Rahimi, June 21, 2024; she did not use the term second-class right, that was my interpretation of her verbiage, e.g., for over two centuries, before Heller, “the meaning of the Second Amendment had been considered settled,” i.e., no individual right existed.
[3] Dr. John R. Lott, Jr. is the author of More Guns Less Crime, Understanding Crime and Gun Control Laws, University of Chicago Press (1998).
[4] Tribe used the word “freedom” to accomplish his objective for propaganda purposes. More properly, he should have used the word “ability” instead, i.e., the Founders decided “to limit our future [ability] to exercise power.
[5] The quoted statement is from Justice Alito’s concurring opinion in Bruen in response to the dissent in Bruen, i.e., “the real thrust of today’s dissent is that guns are bad . . .”