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Conner Greene

Abstract

This Article exposes the flaws of the Supreme Court’s historical analogue test established in Bruen. It details how modern Second Amendment jurisprudence evolved to a tenuous position through Heller and McDonald where the Supreme Court seemingly acknowledged the applicability of means-end scrutiny to the Second Amendment, before the Supreme Court more recently repudiated its use in Bruen in lieu of an inherently flimsy history-only standard that fails to account for modern societal issues. This approach not only severely undermines modern gun regulations—unanimously upheld as constitutional pre-Bruen—but it elevates the Second Amendment to a special status unlike other constitutional amendments. This is not sustainable.

The precise problem with Bruen’s test is playing out before the Supreme Court in Rahimi as the Defendant has levied a facial challenge to his conviction under 18 U.S.C. § 922(g)(8) after he was prohibited from possessing a firearm while he was the subject of a domestic violence protective order. If the Bruen test is true to form, the Court will likely struggle to find a historical analogue at the founding era—as required to uphold the statute—because domestic violence was not widely prosecuted in 1791. Nonetheless, even if it was prosecuted, it did not result in the disarmament of the perpetrator. This succinctly demonstrates a clear issue with the historical analogue test in Bruen which would wrongfully lead to increased bodily harm and violent crimes if § 922(g)(8) is held unconstitutional.

The best decision the Court could make would be to return to a two-step approach for evaluating the Second Amendment where both history and means-end scrutiny apply. However, it is unlikely the Supreme Court reverses course on Bruen’s test less than two years after its implementation. Nonetheless, the Court can instead resolve this issue by turning to the United States’ history and tradition of disarming individuals believed to be dangerous. Although this approach is not without flaws, it allows the Court to easily resolve Rahimi in upholding § 922(g)(8) as constitutional without searching for a non-existent, relevantly similar historical analogue.

In sum, this Article argues the Second Amendment deserves dutiful protection, but it cannot be elevated to a special status beyond what other constitutional amendments are afforded. Simply put, neither history nor means-end scrutiny alone are a sufficient guide to evaluating the Constitution. Instead, pairing the two—as seen with the Court’s evaluation of most constitutional amendments—is the appropriate remedy. The Supreme Court backed itself into a corner with the Bruen test, and Rahimi now affords it the opportunity to reverse course, reframe Second Amendment jurisprudence to a focus on an individual’s dangerousness, or strike down § 922(g)(8)’s protection of domestic violence victims. The first outcome makes the most sense, and the second solution is most likely, but the third outcome would further undermine necessary protections.

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