United States v. Rahimi and the Limits of the Historical Method After Bruen

When the Court decided New York State Rifle & Pistol Ass'n v. Bruen in 2022, it announced that the constitutionality of a modern firearms regulation would turn on whether the government could identify a historical analogue from the Founding era.¹ Lower courts, predictably, struggled to apply that instruction to regulations addressing problems—domestic violence, mass shootings, ghost guns—that the Founders could not have contemplated.

United States v. Rahimi offered the first significant retreat.² The Court upheld 18 U.S.C. § 922(g)(8), which disarms persons subject to domestic-violence restraining orders, on the ground that the historical record contains analogues sufficient to establish a tradition of disarming the dangerous. The opinion's looser conception of analogical reasoning is, this Comment argues, less a refinement of Bruen than a tacit acknowledgment of its unworkability.

Two observations follow. First, once the required analogue is permitted to operate at a level of generality high enough to capture § 922(g)(8), there is no principled basis for excluding most modern regulations from a similar treatment. Second, the inquiry the Court now describes is functionally indistinguishable from the means-end scrutiny Bruen purported to abolish.³