The United States  Supreme Court has held  that gun rights under the Second Amendment must be viewed with a historical lens focused on the 18th century.  Recently, the Supreme Court heard arguments in its latest blockbuster Second Amendment case, United States v. Rahimi. The Fifth US Circuit in Rahimi. 

The challenge to the law came to the court in the case of Zackey Rahimi, who was the subject of a Feb. 2020 protective order in a Texas state court after an incident in which he assaulted his then-girlfriend, who is also the mother of his child, and fired a gun at a witness to the incident. The protective order barred Rahimi from going near his former girlfriend’s home and workplace, and it most importantly  also prohibited him from having a gun.

In 2021, police searched Rahimi’s home because he was a suspect in a series of shootings. After they found a rifle and a pistol, he was charged with violating 18 U.S.C. § 922(g)(8), the law at the center of this case.Rahimi sought to have the charge against him dismissed, arguing that the law is unconstitutional. In the wake of the Supreme Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen, in which the justices explained that courts should uphold gun restrictions only if there is a tradition of such regulations in U.S. history, the U.S. Court of Appeals for the 5th Circuit agreed and threw out Rahimi’s conviction. Although the government is not required to identify a “historical twin” to Section 922(g)(8), the court of appeals explained, it had not offered the kind of “well-established and representative analogue” required to uphold the law.
Justice Thomas’s majority opinion has been criticized by some judges who claim it requires trial judges to become historians. In an  order,  Federal Judge Carlton  Reeves said the Supreme Court’s opinion in New York State Rifle & Pistol Association v. Bruen requires him to “play historian in the name of constitutional adjudication.” Yet neither he nor the justices are experts “in what white, wealthy and male property owners thought about firearms regulation in 1791.” Reeves asked the parties in the gun case before him to submit briefs on whether he should appoint a historian to assist him as a consulting expert. CNN described Reeves’ opinion as “scorching.”
So what are those of us who are not on the United States Supreme Court do to properly apply the law? Although we will have to await more guidance from the Supreme Court this much is clear there were plenty of gun regulations were enacted during the Revolutionary War era. LAWFARE