abstract. The Roberts Court has methodically expanded the scope of Second Amendment rights. But in its first Second Amendment case involving a criminal defendant, United States v. Rahimi, the Court blinked. This Essay examines some of the deeper issues that lurk behind the Court’s seemingly inconsistent treatment of Second Amendment rights and what Rahimi portends for racial justice, gender justice, and criminal-defense lawyering going forward.

Introduction

Criminal-defense lawyers are Charlie Brown, the Supreme Court is Lucy, and the Court’s Second Amendment jurisprudence is the football.1 At least, that is the image stuck in my head after reading United States v. Rahimi.2 If you aren’t familiar with this recurring Peanuts gag, Lucy tells Charlie Brown that she will hold the football for him as he runs up to kick it. She assures him that she can be trusted. Ever gullible, Charlie Brown goes to kick the ball. As he cocks back his leg and lets it rip, Lucy yanks the ball away, causing Charlie Brown to fly into the air and fall flat on his back. The classic scene usually ends with Lucy looking down on a dazed Charlie Brown and, with a wry grin on her face, telling him that he shouldn’t have trusted her.3

In its modern Second Amendment jurisprudence, the Court has told us that history is key.4 The Court first looked to history in District of Columbia v. Heller to determine that the Second Amendment includes a right to keep guns in the home for self-defense.5 The Court then looked to history in McDonald v. City of Chicago to determine that this newly recognized Second Amendment right is so deeply rooted in our history that it must be incorporated against the states.6 And in the final chapter of this gun-rights trinity, the Court in New York State Rifle & Pistol Ass’n v. Bruen looked to history to hold that the Second Amendment includes a right to carry arms in public for self-defense.7 But Bruen did not stop there. The Court announced a test by which to judge all gun regulations: for a gun law to be constitutional, it must be “consistent the Nation’s historical tradition of firearm regulation,” with the government bearing the burden of proof.8 If the government cannot meet its burden, then the law must fall.9

The natural question following Bruen was what the decision meant for the many gun laws and regulations on the books today. To state the obvious, present-day guns and gun regulation look nothing like they did at the Founding (or during Reconstruction—which history matters is still unclear10). And if one must look to “history and tradition” to figure out which modern gun regulations are constitutional, a faithful approach to that test seemed to require that many of the laws on the books fall by the wayside.11

Once the Court handed down Bruen—and to no real surprise—Second Amendment enthusiasts set about challenging gun-licensing requirements, firearm-type restrictions, and public-carry limitations.12 And in many cases, these litigants were successful.13

At the same time, criminal-defense lawyers went to work challenging their clients’ charges for violating various gun laws. Following Bruen’s playbook, defenders looked to “history and tradition” to argue that a raft of modern gun laws were unconstitutional—both on their face and as applied to their clients. And although they were not as successful as civil litigants,14 Bruen proved a useful decision for criminal defendants. For instance, a Texas criminal defendant convinced a federal district court to dismiss his charge for buying a gun while under indictment.15 A Mississippi defendant successfully moved the Fifth Circuit to dismiss an indictment charging him with possessing a firearm while being an unlawful user of a controlled substance.16 And a Mississippi federal judge dismissed a defendant’s felon-in-possession charge.17 Bruen has been a useful weapon in the criminal-defense arsenal.

Bruen’s usefulness—at least for criminal defendants—took a hit, however, when the Supreme Court scaled back the decision just two Terms later in United States v. Rahimi.18 Zackey Rahimi, who was convicted of violating 18 U.S.C. § 922(g)(8), a federal law prohibiting people subject to domestic-violence protection orders from possessing firearms, had a history of engaging in seemingly senseless gun violence and outrageous domestic abuse.19 Mr. Rahimi was the poster child for those people you would not want walking around with a loaded weapon.20

Rahimi therefore pitted the Roberts Court’s love for guns against its disdain for criminal defendants.21 The disdain for criminal defendants won out. Part I elaborates on how this happened. It describes how criminal-defense lawyers dutifully followed the Supreme Court’s decision in Bruen, only for the Court to pull the rug out from under them. This Part further argues that if the Court had been intellectually honest and had faithfully followed Bruen, Mr. Rahimi’s position as a criminal defendant would have carried the day.22 Instead, the Rahimi Court gaslit us all by telling us that Bruen did not say what even its own author said it did. Now that criminal defendants were winning, this Lucy of a Court yanked the ball away.

But then, you can’t talk about criminal law or the Second Amendment without talking about race. Part II explores how racial-justice narratives were instrumental to the Supreme Court’s creation of a muscular Second Amendment.23 In case after case, the Court wielded America’s history of denying guns to formerly enslaved Black people as reason to refashion modern Second Amendment rights.24 But with the Second Amendment at full mast by the time of Rahimi, the Court did not even bother to pretend that racial justice mattered.

To be sure, in Rahimi, there were plenty of racial-justice narratives to be excavated, all of which the Court ignored. For example, in reversing the Fifth Circuit and upholding Mr. Rahimi’s conviction under 18 U.S.C. § 922(g)(8), a law designed to protect against domestic violence, the Court could have discussed, as Professor Michael Ulrich explains, the fact that Black women are far more likely to be victims of intimate-partner violence.25 Or, if the Court wanted to affirm the Fifth Circuit’s decision vacating Mr. Rahimi’s conviction, the Court could have focused on the reality that Black men are far more likely to be prosecuted for violating § 922 than any other demographic, and violations of § 922 routinely make the list of top-charged federal crimes.26 Yet, having served its purpose in Bruen, race did not feature in the Court’s Rahimi opinion,27 which is perhaps unsurprising given the Roberts Court’s broader criminal-law and race jurisprudence.28

There’s more. In contorting itself to rule against Mr. Rahimi, the Court (at the government’s urging) implicitly invoked a version of gender justice to get there.29 Professor Ulrich paints a compelling picture of how women have been an afterthought in the Supreme Court’s Second Amendment jurisprudence, with the Court ignoring the unique harms that women face when guns are possessed both in and outside the home.30 He also persuasively details the intersections between guns and domestic violence, providing strong support for why we would want to prohibit people subject to domestic-violence protection orders from possessing firearms, whether via the criminal legal system or (preferably) through some civil remedy.31

But while Professor Ulrich’s points make perfect sense—and are in fact reflected in Justice Sotomayor’s Rahimi concurrence32—none of that matters under the Bruen framework. In no uncertain terms, Bruen disclaimed the relevance of modern-day realities to the constitutionality of gun regulations.33 Even so, to limit Bruen’s fallout, the Court took up Rahimi, using the presence of real domestic-violence concerns to ensure that Bruen would not expand the rights of criminal defendants,34 while studiously ignoring the racial-justice interests on both sides of the equation.

At bottom, this Essay, read alongside Professor Ulrich’s essay, aims to show that the Supreme Court’s modern Second Amendment jurisprudence tells us whom the Court believes the Second Amendment is designed to protect and whom it is supposed to protect against. It reveals that race matters until it doesn’t, that gender matters until it doesn’t, that law matters until it doesn’t.35 The Court’s Second Amendment precedents lay bare the reality that some legal arguments, and some constitutional rights, are more readily available to some than to others.

I. damned if you do: zackey rahimi’s failed attempt to capitalize on bruen

The Roberts Court’s Second Amendment revolution was swift. Less than two decades ago, the Supreme Court in Heller held for the first time that the Second Amendment encompasses a private right to keep arms in the home for self-defense.36 Dissenting from that sea-change decision, Justice Stevens not only bemoaned the fact that the Court’s understanding of the Second Amendment was unprecedented; he also explained that by announcing a private right to keep arms, the Court opened itself up to the “formidable task of defining the scope of permissible regulations.”37

A. The Bruen Court Calls Modern Gun Regulation into Question

In Bruen, the Court undertook that “formidable task.” There, the Roberts Court not only recognized a private to right to carry arms for self-defense outside the home; the Court also sought to set a standard by which to judge the constitutionality of all firearm regulations going forward.38 Said Justice Thomas, writing for the Court: “Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”39 Second Amendment enthusiasts and gun-rights groups praised the decision.40 The Second Amendment was a “second-class right” no longer.41 But praise for Bruen also came from what many saw as a surprising corner: public defenders.42

In Bruen, a group of New York public defenders filed an amicus brief in support of extending Second Amendment rights outside the home. Their argument was straightforward. They described how “each year, [they] represent hundreds of indigent people whom New York criminally charges for exercising their right to keep and bear arms.”43 The prosecutions are not equally borne across racial lines, they explained, as most of the people they saw prosecuted “for exercising their Second Amendment rights [were] Black or Hispanic.”44 The public defenders therefore had a simple request for the Court: “[C]reate a rule that will in fact protect the Second Amendment rights of ‘all’ the people.”45

When the Bruen Court took up the public defenders’ invitation and struck down the New York gun-permitting law, creating a “history and tradition” test by which to judge gun regulations in the process, criminal-defense lawyers across the country immediately went to work. In jurisdiction after jurisdiction, criminal defendants started raising Second Amendment challenges in their gun-related prosecutions.46 Their arguments were based on a straightforward application of Bruen. For example, when a defendant challenged his conviction under 18 U.S.C. § 922(n), which prohibits people under indictment from possessing firearms, he argued that the government could not point to “historical English or American laws that specifically forbade criminal defendants from possessing or buying firearms while awaiting trial.”47 In a case challenging a conviction under the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), the defendant noted the “absence of historical authority from the Founding Era supporting felon disarmament.”48 In perhaps the most famous Second Amendment challenge by a criminal defendant, Hunter Biden, President Biden’s son, argued that the federal statute criminalizing firearm possession by someone who is an “unlawful user or addicted to any controlled substance”49 is unconstitutional because there is no “historical precedent for disarming citizens based on their status of having used a controlled substance.”50

To be certain, criminal defendants making these arguments did not always, or even usually, win. In a one-year postmortem after Bruen, one study found that Second Amendment challenges were successful in just five percent of criminal cases, whereas civil litigants were successful in sixty-seven percent of federal appellate cases.51 The point here is not that Bruen charted a guaranteed path to success for criminal defendants. Rather, Bruen gave them the ability to make arguments previously unheard of in criminal cases. As a result, criminal defendants achieved some Second Amendment successes that were impossible before Bruen in both state and federal court.52

B. The Rahimi Court Walks Back Bruen

But all good things must come to an end. The Second Amendment success of one particular criminal defendant proved a bridge too far. Zackey Rahimi was convicted of possessing a firearm while subject to a domestic-violence protection order in violation of 18 U.S.C. § 922(g)(8).53 The facts of Rahimi are somewhat outlandish. Mr. Rahimi was under an agreed-to restraining order after he dragged his ex-girlfriend into his car following an argument and shot at a bystander who witnessed the altercation.54 In the following months, he allegedly threatened another woman with a gun and was suspected to be involved in five separate shootings, including shooting at a constable’s car and “into the air outside a Whataburger after his friend’s credit card was declined.”55

Before the Fifth Circuit, Mr. Rahimi argued that none of these facts matter; the indictment should be dismissed because 18 U.S.C. § 922(g)(8) is facially unconstitutional.56 In support of this argument, Mr. Rahimi relied on the fact that women were largely unprotected—especially from their husbands—at the time of the Second Amendment’s ratification. He explained that the “historical support for the exclusion of domestic violence offenders from Second Amendment protection appears rather thin. Judges in this time period were more likely to confiscate a wife beater’s liquor than his guns.”57 As Mr. Rahimi put it, “Indisputably, domestic violence is a persistent social problem. . . . Yet there is little or no historical evidence suggesting disarmament for those who committed domestic violence; and there is certainly no tradition of disarming people subject to a no-contact order related to domestic violence.”58 Mr. Rahimi argued that the “analysis that Bruen demands is cold, calculating, and historical.”59 And here, he continued, that analysis required the court to vacate his conviction and to hold § 922(g)(8) unconstitutional.60 In other words, Mr. Rahimi, through his counsel, closely followed the Bruen playbook.

The United States urged the Fifth Circuit to resist this argument. Attempting to satisfy the history-and-tradition test, the government argued that although no history specifically shows that those subject to domestic-violence protection orders were disarmed, there was a long history more generally of disarming dangerous people, including “slaves and Native Americans.”61 The United States argued that these restrictions were sufficiently analogous to satisfy Bruen’s history-and-tradition test, attempting to exploit the potential confusion over what makes a law analogous enough to meet Bruen’s demands.62

The Fifth Circuit rejected the United States’s argument and sided with Mr. Rahimi. The Fifth Circuit held that none of the examples cited by the government were “relevantly similar” to the domestic-violence prohibition at issue in the case.63 The Fifth Circuit therefore concluded that while § 922(g)(8) “embodies salutary policy goals meant to protect vulnerable people in our society,” the Supreme Court’s decision in Bruen “forecloses any” consideration of “[w]eighing those policy goals’ merit.”64 What matters is the “historical analogical inquiry.”65 “Through that lens,” the Fifth Circuit held § 922(g)(8) to be facially unconstitutional.66

The Supreme Court reversed, and in so doing, attempted to clean up Bruen’s mess.67 According to Chief Justice Roberts, writing for the Court, the Fifth Circuit (and many others) “misunderstood” Bruen’s “methodology.”68 As the Rahimi Court framed it, Bruen did not “suggest a law trapped in amber,” as the Second Amendment “permits more than just those regulations identical to ones that could be found in 1791.”69 Rather, a firearm regulation is constitutional under the Second Amendment if it is “consistent with the principles that underpin our regulatory tradition.”70 The Court emphasized: “The law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’”71

With this recasting of Bruen “in mind,” the Rahimi Court held that § 922(g)(8) was constitutional, at least as applied to Mr. Rahimi.72 Looking to surety laws73 and “going armed”74 laws, the Court explained that “[f]rom the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others.”75 Then, from those two examples, the Court derived the principle that “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”76 Acknowledging that “[s]ection 922(g)(8) is by no means identical to these founding era regimes,” the Court held that “[i]ts prohibition on the possession of firearms by those found by a court to present a threat to others fits neatly within the tradition the surety and going armed laws represent.”77

Alone in dissent, Justice Thomas—Bruen’s author—had a much different view of what Bruen said. He thought that under Bruen, this case “should have been . . . straightforward”78 given that the “Court and Government [did] not point to a single historical law revoking a citizen’s Second Amendment right based on interpersonal violence.”79 Justice Thomas did not believe that surety laws and going armed laws were “relevantly similar” to § 922(g)(8).80 Starting with surety laws, Justice Thomas explained that they did not impose the same “burden” on Second Amendment rights as § 922(g)(8) because “in a nutshell,” they were just “a fine on certain behavior,” as opposed to a criminal statute that strips a person of their Second Amendment rights and imposes imprisonment as a penalty.81 And going-armed laws were not relevantly similar: they had a “distinct justification from § 922(g)(8) because they regulated only certain public conduct that injured the entire community.”82 Thus, Justice Thomas concluded that these laws did not have “an analogous burden and justification” to § 922(g)(8), and therefore they could not be used to satisfy Bruen’s history-and-tradition test.83

As Justice Thomas explained, Rahimi should have been “an easy case” if the Supreme Court had hewed faithfully to what it said in Bruen.84 Indeed, as Justice Sotomayor noted in her concurrence, “[T]he law at the founding was more likely to protect husbands who abused their spouses than offer some measure of accountability.”85 Thus, to rule against Mr. Rahimi, which the Court seemed inclined to do from the start, it had to walk back (or rewrite) Bruen stealthily.86 It did so by announcing a principle-based approach to its history-and-tradition test to replace the regulation-based approached that Bruen seemingly articulated—all while claiming it was faithfully following Bruen, over the dissent of Bruen’s author.87 In other words, when a criminal defendant tried to reap the benefit of the Court’s maximalist vision of the Second Amendment, the Court blinked.

C. The Second Amendment After Rahimi

Looking forward, however, there is no guarantee that Rahimi’s rewriting of Bruen is etched in stone. In fact, that may well be the perverse genius of Rahimi. By claiming that Rahimi is a faithful application of Bruen, the Court may have created a choose-your-own-adventure Second Amendment paradigm.88 In cases involving criminal defendants whom the Court does not believe should possess guns, the Court can look to malleable principles underlying historical gun regulations such as “dangerousness” to find that certain gun-related prosecutions are permissible. Meanwhile, when the Court sympathizes with the party raising a Second Amendment challenge, the Court can revert to the more regulation-based approach that Bruen articulated. Under that approach, no particular historical regulation is guaranteed to be analogous enough, as the questions of what is analogous and how many analogues it takes to build a historical tradition will often be in eye of the beholder.89 As Justice Jackson noted, the Court’s approach to Second Amendment questions is “creating chaos,”90 making it hard to know what the law is and to discern the scope of one’s constitutional rights. But perhaps this chaos is by design: by adopting this choose-your-own adventure paradigm, the Court aggrandized itself, claiming the power to decide which regulations pass muster and which must fall.

So where does Rahimi leave criminal defendants? Maybe close to the same place they started. For instance, in one post-Rahimi decision, a federal judge thought that nothing much had changed. In an order dismissing an indictment charging a violation of 18 U.S.C. § 922(g)(5), which criminalizes gun possession by someone who is illegally in the United States, Judge Reeves made clear that he read Rahimi as the Court “doubl[ing]-down on the legal standard they articulated in Bruen.”91 Thus, following Bruen’s history-and-tradition methodology, Judge Reeves held that dismissal was warranted because the government did not meet its burden of proving “that immigrant disarmament is a principle consistent with American history and tradition at the founding.”92 Under this view of Rahimi, defendants may not have to alter their litigation approach much, aside from perhaps avoiding facial challenges given the higher bar they pose to success.93 As proof, after Rahimi, criminal defendants have successfully challenged charges for violating federal laws prohibiting possessing a gun under indictment and possessing machine guns, all because those courts purported to follow Bruen.94

By contrast, if judges view Rahimi as “softening” or “modif[ying]” Bruen’s approach,95 then defendants may have to adjust accordingly. In front of a judge with this view of Rahimi, defendants may instead choose to argue over levels of generality, asserting that the principles that the government claims can be derived from a historical tradition are far too abstract. After all, as Justice Barrett said in Rahimi, “[A] court must be careful not to read a principle at such a high level of generality that it waters down the right.”96

Either way, criminal-defense attorneys reading Rahimi should not give up all hope. As Justice Jackson pointed out, Rahimi leaves open a number of questions and potential avenues for defenders to pursue.97 First, the Court emphasized that Mr. Rahimi raised a facial challenge to § 922(g)(8).98 Defendants therefore can still raise as-applied challenges to charges under that statute and can still assert both facial and as-applied challenges to other gun regulations.99 Second, the Court made clear that its decision was limited, as Rahimi “conclude[d] only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”100 Thus, by its terms, the decision is narrow and leaves the status of all other forms of gun regulation—those not predicated on a court finding of dangerousness or that are not temporally limited—up in the air. In other words, even after Rahimi, there is still ample room for criminal-defense attorneys to raise Second Amendment challenges to various gun-crime charges,101 although as one Ninth Circuit judge complained, courts may (in his view, inappropriately) use Rahimi as cover to reject criminal defendants’ Second Amendment challenges.102 Zealous defense attorneys must continue to press these arguments, exploiting Bruen’s methodology and Rahimi’s noticeable gaps in service of their clients.103 While the decision may have been a lemon for Mr. Rahimi, criminal-defense attorneys can still try to make lemonade.104

II. weaponizing justice

Another striking feature of the Rahimi decision is the absence of any discussion of race. As I’ve said before, in its previous Second Amendment cases, the Roberts Court “consistently appropriated a racial justice angle in its efforts to reshape the scope of Second Amendment rights,” while at the same time ignoring the racial disparities in gun violence and prosecutions today.105 Indeed, by the time of Bruen, the racial-justice “meta-narrative” of the Roberts Court’s Second Amendment cases was so clear that much of the briefing in Bruen purposefully emphasized racial-justice narratives, including briefs from those who normally would espouse a colorblind, postracial worldview.106

A. The Unstated Racial-Justice Narrative in Rahimi

In Rahimi, however, racial-justice narratives largely fell away. The omission of race is conspicuous given that issues of race and racial justice are particularly salient in criminal law.107 Lest there was doubt, there were racial-justice issues at play in Rahimi on both sides of the “v.” As such, if the Supreme Court wanted to continue its trend of discussing race in Second Amendment cases, it had the necessary ammunition. The Court held its fire.

1. Racial-Justice Narratives Favoring the Government

Start with the racial narratives that favored the government. The Court could have engaged in the sordid reasoning that has often featured in Second Amendment briefing and in the case law since Bruen was decided.108 The argument goes like this: The nation’s history of racial and racist disarmament illuminates that “founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety.”109 Historically, Black and Native people were prohibited from possessing guns because they were viewed as dangerous.110 Analogizing from there, as the federal government argued before the Fifth Circuit in Rahimi, the Court could have held that domestic abusers are similarly considered within the same class of “dangerous” persons in the eyes of the law.111 In other words, if the Court had wanted to, it could have consistently employed Bruen’s history-and-tradition test to hold that the Nation’s history of racism required reining in the Second Amendment.112 But given that the Roberts Court had used the history of racial disarmament to expand gun rights just two years ago in Bruen,113 perhaps the Court recognized that it would be a little dizzying to use this same history now to contract them.

Likewise, if the Court had wanted to rule for the government and claim consistency in its invocation of race, it could have discussed some of the important issues raised by Professor Ulrich and some amici concerning the racial disparities in intimate-partner violence.114 For example, the Court could have noted that women of color are disproportionately likely to face intimate-partner violence and are also more likely to seek court intervention as a recourse.115 The Court could have highlighted the fact that Black and Native women are at much greater risk of dying at the hands of an intimate partner.116 Or the Court could have raised the startling fact that Black pregnant women are far more likely than nonpregnant Black women to be victims of intimate-partner homicide.117 Yet the Court left the intersectional harms of gun violence unaddressed,118 thereby obscuring the special harms that women of color face in a nation where guns proliferate.119 But perhaps it should not be surprising that these stories were absent from the opinion, given Bruen’s exhortation that modern-day realities have no place in our current understanding of the scope of the Second Amendment.120

2. Racial-Justice Narratives Favoring Mr. Rahimi

There is an important racial-justice story to be told on the other side, too. If the Roberts Court had wanted to rule for Mr. Rahimi (just as it had ruled for every civil plaintiff who had raised a Second Amendment challenge) and continue its pattern of discussing race, it could have addressed the racial-justice implications of gun prosecutions. Recall the reality that compelled the public defenders to write in support of the challengers in Bruen: people of color, and Black people in particular, are far more likely to be prosecuted for possessing guns. If one looks specifically at 18 U.S.C. § 922(g), the federal firearm statute Mr. Rahimi was convicted of violating, the racial disparities are breathtaking.

The United States Sentencing Commission reported 64,142 sentencings in Fiscal Year 2022.121 Of those cases, 8,688 were convictions under § 922(g) violations—over 13% of all cases.122 Of people sentenced for violating § 922(g), 58.1% were Black, despite Black people comprising just under 14% of the country’s population.123 That same year, over three-quarters of all sentencings under this statute were of defendants of color.124 While these numbers are shocking in the abstract, they become less surprising when one considers the fact that the federal government has purposefully established gun-focused prosecution programs in cities across the country with large minority populations.125 That the federal government regularly partners with local law enforcement in cities with large minority populations to aggressively prosecute gun crimes renders the racial disparities in federal gun prosecutions unremarkable. There is a racial-justice story to be told about how gun possession by people of color is targeted in a way that white gun ownership is not.

With these facts at its back, if the Court had wanted to continue its trend of invoking racial justice when striking down gun regulations and expanding the scope of the Second Amendment, it could have plausibly done so with a straight face. Indeed, the Court could have gone even further than just focusing on how § 922(g) is prosecuted. It could have zoomed out to explain, consistent with what the public defenders said in Bruen, that most rulings striking down a criminal statute are consistent with racial justice given the persistent racialized patterns of criminal-law enforcement in the United States.126 But again, because the Roberts Court’s Second Amendment case law has been so laser focused on the United States’s history of racial discrimination, and consistent with the Roberts Court’s general apathy towards the average criminal defendant,127 the Court treated present-day racial disparities in gun-crime prosecutions as irrelevant.128

B. The Absence of Racial Justice and the Ascendance of Gender Justice in Rahimi

The absence of any discussion of the racial realities of gun prosecution feels especially pernicious given the broader context. In a trio of civil cases, the Roberts Court chipped away at the state’s ability to regulate firearms.129 A Second Amendment challenge in a criminal case has far different racial-justice implications, as Black people’s gun possession is far more likely to be regulated through the use of the criminal legal process than white gun possession.130 And as Justice Thomas noted in his Rahimi dissent, even when gun regulations fall, criminal prosecution and incarceration are still available mechanisms to regulate gun possession.131 This reality increased the importance of the Court hewing to the standard announced in Bruen when it came time to apply the Second Amendment in a criminal case—that is, if the Court meant what it had said up until that point. But rather than staying faithful to the history-and-tradition test that it had just announced, the Roberts Court backed away in Rahimi. In so doing, the Court essentially endorsed the use of the criminal legal system, with all its built-in biases,132 as a tool to regulate firearms.

By distorting precedent to condone the use of criminal law to regulate guns, Rahimi sent a message about who the Court envisions as “rightful” gun owners. It is easy to cast Rahimi as the Court saying that “dangerous” people should not possess guns. But one must go one step further and ask: whom does society regularly perceive as dangerous? The widespread association of Blackness with criminality and dangerousness is well-documented.133 And as just discussed, the over-policing of Black people is uncontroverted. Therefore, the use of criminal law to regulate firearm possession will necessarily mean that the right will be less accessible to Black people than to others. As a result, Black people who lawfully exercise their Second Amendment rights must worry that their actions may still be perceived as illegal in ways that most white people’s actions will not.134 As Professor Khiara Bridges helpfully explains, there is a “racial injury” that comes with “using the criminal legal system to control access to guns.”135 This “racial injury” was either illegible or unimportant to the Roberts Court in Rahimi.

While race fell away, a not-so-subtle variant of (raceless) gender justice took its place. It all started with how the government shifted its framing of the case from Mr. Rahimi being a drug dealer who deserves to be behind bars to § 922(g)(8) being an important tool to protect against domestic violence. In its petition for a writ of certiorari, the government opened with this: “Zackey Rahimi was a drug dealer who ‘mostly sold marijuana and occasionally sold cocaine.’”136 The problem of intimate-partner violence that § 922(g)(8) was supposedly designed to address would not feature until page six of the petition.137 To state what might be obvious, Mr. Rahimi allegedly being a drug dealer had little relevance to this case, yet it was the government’s opening salvo. In that way, at least the petition was transparent: Section 922(g)(8) was a vehicle for the government to get a perceived bad guy off the streets. That § 922(g)(8) might also be tool to protect against domestic violence came in a distant second in the government’s framing.

The government’s merits brief reads much differently. There, the government opened with this: “Firearms and domestic strife are a potentially deadly combination.”138 And the government immediately highlighted the fact that § 922(g)(8) was designed to “address that acute danger.”139 The government appropriately amplified the allegations of Mr. Rahimi’s partner abuse.140 By the time of merits briefing, that Mr. Rahimi was allegedly a drug dealer was suddenly, and rightfully, irrelevant. For its part, the Court deftly threaded the needle, connecting the story of Mr. Rahimi being a bad guy to the plight of domestic violence. As evidence, in a lengthy facts section, the Court made sure to describe vividly the domestic-violence allegations against Mr. Rahimi, including by detailing a number of incidents that occurred after the domestic-violence restraining order was issued—salacious details that had no real purpose other than to sully Mr. Rahimi’s image.141 Thus, by rehearsing all of these facts before conducting an analysis, the Court painted a picture of Mr. Rahimi that would leave most readers certain that he should not be allowed to have a gun.

Whatever the government’s reasons for prosecuting Mr. Rahimi, its narrative of protecting women142 who experience intimate-partner violence is the version of the case that took hold in the public imagination. The day before oral argument, an opinion piece in The New York Times asked: “Will the Supreme Court Toss Out a Gun Law Meant to Protect Women?”143 Then, right after oral argument, the Times ran a headline declaring: “Supreme Court Seems Likely to Uphold Law Disarming Domestic Abusers.”144 Under this framing of the case, the Court comes out looking like a hero. The postdecision Times headline proves this point, blaring: “Supreme Court Upholds Law Disarming Domestic Abusers.”145 But the Court is no hero. The confused status of § 922(g)(8), and laws like it, was a confusion of the Court’s own making, a point Justice Jackson made forcefully in her separate writing in Rahimi.146

But this seemingly strategic reframing of the case should not obscure Professor Ulrich’s persuasive argument that the Court’s modern Second Amendment jurisprudence champions men at the expense of women. As Professor Ulrich explains, the Court’s history-and-tradition test tying modern gun regulation to a time when women were not part of the polity is “an affront to hard-fought progress toward gender equality.”147 But the gender issues run deeper than that, as the Court’s vision of the Second Amendment is not only offensive, it is dangerous because it “enables firearm proliferation,” in turn “plac[ing] women at increased risk of harm while doing virtually nothing to help women against known assailants.”148 As such, as Professor Ulrich highlights, the way the Roberts Court views the right to keep and bear arms and the notion of self-defense more generally prioritizes the vantage point of men, to the peril of women.

By taking up the dispute in Rahimi and using it to uphold the criminal prosecution of certain gun possessors, the Court implicitly swapped one justice narrative for another. At first, expanding access to guns was important to further a particularly cramped vision of racial justice. Now, criminalizing certain people who possess guns is important to further a particularly cramped version of gender justice. All the while, the Roberts Court’s Second Amendment jurisprudence as a whole has arguably made people of color and women less safe.149 Rahimi is therefore another example of how the Roberts Court coopts justice narratives to advance a vision of the Second Amendment that is designed for some and not for others.

Conclusion

So what did we learn from Rahimi? We learned for the first time that the Supreme Court’s maximalist view of the Second Amendment has at least one endpoint—certain criminal defendants. We learned that the Court was willing to contort its precedent to find this endpoint while telling us that it was applying its precedents faithfully. We learned (or confirmed) that the Court’s previous invocations of racial justice in its Second Amendment cases were instrumental: now that the Court’s project of refashioning the Second Amendment is largely complete, race and racial justice have fallen from the picture. We learned that the present-day harms of gun violence, which disproportionately fall on people of color and women, still do not matter to this Court. And we learned that courts will be in the business of resolving Second Amendment disputes, likely law by law, for years to come.150 Perhaps the “formidable task of defining the scope of permissible regulations” under the Roberts Court’s newfound view of the Second Amendment is far more formidable than the Court had anticipated.151 Or maybe the Court played its hand exactly right, making itself the final arbiter of all gun regulation. Either way, as Justice Jackson reminded us, in this uncertain Second Amendment regime, we, the public, suffer.152

Professor of Clinical Law, NYU School of Law. Many thanks to Michael Ulrich for his engagement, Michele Chu for the research assistance, and the Yale Law Journal editors for making the piece much better. Mistakes are my own.