In November, I wrote that the Fifth Circuit's Rahimi decision "was a faithful application of Bruen." Seven months later, now having read the Supreme Court's Rahimi decision, I stand by what I wrote. After Justice Thomas's dissent, the most intellectually honest opinion in Rahimi was Justice Jackson's concurrence. Jackson explained that "Today's effort to clear up 'misunderst[andings],' is a tacit admission that lower courts are struggling" with Bruen. The struggle is this: Justice Thomas meant what he wrote, but the other five members of the Rahimi majority did not. And they've now all run for the hills.
June 2022 was a strange time. The Court was on the verge of overruling Roe and the Lemon test. According to recent reporting by the New York Times, Chief Justice Roberts and Justice Kavanaugh did not sign onto Bruen until fairly late in the process, and only with a narrowing concurrence. And Justice Barrett was quite vocal about her own reservations. Had Bruen been decided in a different term without Dobbs and Kennedy, perhaps we would have gotten a different opinion. Had Chief Justice Roberts assigned the case to anyone but Justice Thomas, we would have never had Rahimi. The New York law would have been declared unconstitutional, but there would have been nothing about analogical reasoning. So many things had to go right–or wrong, depending on your vantage point–for June 2022 to happen the way it did. And so it did.
But only two years later, and the Court's originalists are fracturing. Vidal was the canary in the coal mine.
