The Supreme Court Steps Back From the Edge
The nine members of the Supreme Court peered over a precipice. A disagreeable choice loomed before them.
They could apply their two-year-old gun-rights precedent, as a lower court had, and declare unconstitutional a federal law aimed at keeping guns out of the hands of individuals under court-issued restraining orders for domestic violence. If they endorsed such an extreme outcome, they knew, they would be taking down not only a 30-year-old law but also perhaps even the court itself, already at a near low in public esteem. Or they could step back from the edge, relaxing their embrace of the Second Amendment just enough to issue a judicially worded “never mind.”
Eight justices decided not to make the leap — all but Justice Clarence Thomas, clinging tightly to the precedent on which five of the others had joined him only two years earlier as he went over the edge. He was left alone on the bottom to complain forlornly that the court had failed to “point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence.”
Of course, I’m taking a few liberties here; I can’t know whether any of the justices understood their dilemma in quite this way. But it’s impossible to see the outcome in United States v. Rahimi as anything other than an exercise in institutional self-preservation. It certainly wasn’t an exercise in judicial coherence. While Chief Justice John Roberts’s majority opinion garnered eight votes, five members of his majority felt impelled to express their own contrasting if not exactly conflicting views in separate opinions.
Clearly, the chief justice’s succinct 18-page opinion didn’t fully satisfy everyone who signed on. Often in such cases, a justice who agrees with the opinion writer’s bottom line but who has a substantially different view of how to get there won’t sign the main opinion but will write a separate opinion “concurring in the judgment.” With enough of those, the majority opinion no longer speaks for a majority of the court. That didn’t happen this time, I think because all eight recognized a transcendent need for the court to tell the world, in a voice at least nominally unified, that “when we transformed the law of the Second Amendment in New York State Rifle & Pistol Association v. Bruen two years ago, we didn’t intend for it to lead to this.”
The Rahimi case was argued on Nov. 7, 2023, making it the oldest undecided case of the term by the time the court handed down the decision on Friday. What was going on during those eight-plus months? We can only assume that the final product took a lot of work, both individual and collective. It’s a good guess that not all the conservative justices were quick to sign onto the chief justice’s opinion, at least not until they could have their say.
