On Tuesday, the Supreme Court heard oral argument in United States v. Rahimi. Things did not go well for Mr. Rahimi. I can see him losing 7-2, 8-1, or maybe even 9-0, over some very stern concurrences. That the Supreme Court will (almost certainly) reverse the Fifth Circuit does not mean that the Fifth Circuit failed to faithfully apply Bruen. To the contrary, the Supreme Court seems to already have doubts about a precedent that, like Dobbs, is in its fifth trimester. Don't blame the inferior courts for taking the Supreme Court at its word.
The most likely path forward is for the Court to give (in Justice Kagan's words) "useful guidance" for the lower courts on how to apply Bruen. And by "useful guidance," Justice Kagan means watering down the Bruen test so lower court judges can pretend Justice Breyer's Heller dissent is controlling. What is that guidance? Solicitor General Prelogar explains "The way constitutional interpretation usually proceeds is to use history and regulation to identify principles, the enduring principles that define the scope of the Second Amendment right." Here, the Solicitor General purports to lecture the–what we are told is–the most originalist Supreme Court ever on originalism. Yes, after decades of discussion about original meaning, and we're stuck with "identifying principles" from history.
Still, we should not abandon all hope. On two occasions, Justice Barrett shined a light on another case looming on the docket.
