Below, Josh argues that "an opinion reversing Rahimi will be tougher to write than most critics will admit" and also claims that "Rahimi was a faithful application of Bruen. Efforts to "clarify" Bruen are really an attempt to rewrite the precedent. I don't think anyone seriously doubts this premise."
With respect, I think that both of these claims are wrong, for reasons that Professor Robert Leider and I gave in our essay, The General Law Right to Bear Arms. An opinion that faithfully applies Bruen and reverses the Fifth Circuit in Rahimi is not hard to write. It has two major steps.
First, the Court will point out that Bruen called for a particular kind of originalist approach, one where the Constitution's "meaning is fixed according to the understandings of those who ratified it," but it "can, and must, apply to circumstances beyond those the Founders specifically anticipated." In particular, this approach calls for the judges to enforce historically-recognized principles about when the right to keep and bear arms can be regulated. This is what Bruen is referring to when it talks about lawyerly "analogical reasoning" which focuses on "how and why" past regulations burdened the right—analogical reasoning that is "neither a regulatory straightjacket nor a regulatory blank check."
