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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–915

															_________________

															UNITED STATES, PETITIONER v. ZACKEY
RAHIMI

															on writ of certiorari to the united states
court of appeals for the fifth circuit

															[June 21, 2024]

															Chief Justice Roberts delivered the opinion of
the Court.

															A federal statute prohibits an individual
subject to a domestic violence restraining order from possessing a
firearm if that order includes a finding that he “represents a
credible threat to the physical safety of [an] intimate partner,”
or a child of the partner or individual. 18 U. S. C.
§922(g)(8). Respondent Zackey Rahimi is subject to such an order.
The question is whether this provision may be enforced against him
consistent with the Second Amendment.

															I

															A

															In December 2019, Rahimi met his girlfriend,
C. M., for lunch in a parking lot. C. M. is also the
mother of Rahimi’s young child, A. R. During the meal, Rahimi
and C. M. began arguing, and Rahimi became enraged. Brief for
United States 2. C. M. attempted to leave, but Rahimi grabbed
her by the wrist, dragged her back to his car, and shoved her in,
causing her to strike her head against the dashboard. When he
realized that a bystander was watching the altercation, Rahimi
paused to retrieve a gun from under the passenger seat. C. M.
took advantage of the opportunity to escape. Rahimi fired as she
fled, although it is unclear whether he was aiming at C. M. or
the witness. Rahimi later called C. M. and warned that he
would shoot her if she reported the incident. Ibid .

															Undeterred by this threat, C. M. went to
court to seek a restraining order. In the affidavit accompanying
her application, C. M. recounted the parking lot incident as
well as other assaults. She also detailed how Rahimi’s conduct had
endangered A. R. Although Rahimi had an opportunity to contest
C. M.’s testimony, he did not do so. On February 5, 2020, a
state court in Tarrant County, Texas, issued a restraining order
against him. The order, entered with the consent of both parties,
included a finding that Rahimi had committed “family violence.”
App. 2. It also found that this violence was “likely to occur
again” and that Rahimi posed “a credible threat” to the “physical
safety” of C. M. or A. R. Id ., at 2–3. Based on
these findings, the order prohibited Rahimi from threatening
C. M. or her family for two years or contacting C. M.
during that period except to discuss A. R. Id ., at 3–7.
It also suspended Rahimi’s gun license for two years. Id .,
at 5–6. If Rahimi was imprisoned or confined when the order was set
to expire, the order would instead terminate either one or two
years after his release date, depending on the length of his
imprisonment. Id ., at 6–7.

															In May, however, Rahimi violated the order by
approaching C. M.’s home at night. He also began contacting
her through several social media accounts.

															In November, Rahimi threatened a different woman
with a gun, resulting in a charge for aggravated assault with a
deadly weapon. And while Rahimi was under arrest for that assault,
the Texas police identified him as the suspect in a spate of at
least five additional shootings.

															The first, which occurred in December 2020,
arose from Rahimi’s dealing in illegal drugs. After one of his
customers “started talking trash,” Rahimi drove to the man’s home
and shot into it. Brief for United States 3. While driving the next
day, Rahimi collided with another car, exited his vehicle, and
proceeded to shoot at the other car. Three days later, he fired his
gun in the air while driving through a residential neighborhood. A
few weeks after that, Rahimi was speeding on a highway near
Arlington, Texas, when a truck flashed its lights at him. Rahimi
hit the brakes and cut across traffic to chase the truck. Once off
the highway, he fired several times toward the truck and a nearby
car before fleeing. Two weeks after that, Rahimi and a friend were
dining at a roadside burger restaurant. When the restaurant
declined his friend’s credit card, Rahimi pulled a gun and shot
into the air.

															The police obtained a warrant to search Rahimi’s
residence. There they discovered a pistol, a rifle, ammunition—and
a copy of the restraining order.

															B

															Rahimi was indicted on one count of possessing
a firearm while subject to a domestic violence restraining order,
in violation of 18 U. S. C. §922(g)(8). At the time, such
a violation was punishable by up to 10 years’ imprisonment (since
amended to 15 years). §924(a)(2); see Bipartisan Safer Communities
Act, Pub. L. 117–159, §12004(c)(2), 136Stat. 1329, 18
U. S. C. §924(a)(8). A prosecution under Section
922(g)(8) may proceed only if three criteria are met. First, the
defendant must have received actual notice and an opportunity to be
heard before the order was entered. §922(g)(8)(A). Second, the
order must prohibit the defendant from either “harassing, stalking,
or threatening” his “intimate partner” or his or his partner’s
child, or “engaging in other conduct that would place [the] partner
in reasonable fear of bodily injury” to the partner or child.
§922(g)(8)(B). A defendant’s “intimate partner[s]” include his
spouse or any former spouse, the parent of his child, and anyone
with whom he cohabitates or has cohabitated. §921(a)(32). Third,
under Section 922(g)(8)(C), the order must either contain a finding
that the defendant “represents a credible threat to the physical
safety” of his intimate partner or his or his partner’s child,
§922(g)(8)(C)(i), or “by its terms explicitly prohibit[  ] the
use,” attempted use, or threatened use of “physical force” against
those individuals, §922(g)(8)(C)(ii).

															Rahimi’s restraining order met all three
criteria. First, Rahimi had received notice and an opportunity to
be heard before the order was entered. App. 2. Second, the order
prohibited him from communicating with or threatening C. M. Id ., at 3–4. Third, the order met the requirements of
Section 922(g)(8)(C)(i), because it included a finding that Rahimi
represented “a credible threat to the physical safety” of
C. M. or her family. Id ., at 2–3. The order also
“explicitly prohibit[ed]” Rahimi from “the use, attempted use, or
threatened use of physical force” against C. M., satisfying
the independent basis for liability in Section 922(g)(8)(C)(ii). Id ., at 3.

															Rahimi moved to dismiss the indictment, arguing
that Section 922(g)(8) violated on its face the Second Amendment
right to keep and bear arms. No. 4:21–cr–00083 (ND Tex., May 7,
2021), ECF Doc. 17. Concluding that Circuit precedent foreclosed
Rahimi’s Second Amendment challenge, the District Court denied his
motion. Rahimi then pleaded guilty. On appeal, he again raised his
Second Amendment challenge. The appeal was denied, and Rahimi
petitioned for rehearing en banc.

															While Rahimi’s petition was pending, this Court
decided New York State Rifle & Pistol Assn., Inc . v. Bruen , 597 U.S. 1 (2022). In Bruen , we explained that
when a firearm regulation is challenged under the Second Amendment,
the Government must show that the restriction “is consistent with
the Nation’s historical tradition of firearm regulation.” Id ., at 24.

															In light of Bruen , the panel withdrew the
prior opinion and ordered additional briefing. A new panel then
heard oral argument and reversed. 61 F. 4th 443, 448 (CA5
2023). Surveying the evidence that the Government had identified,
the panel concluded that Section 922(g)(8) does not fit within our
tradition of firearm regulation. Id ., at 460–461. Judge Ho
wrote separately to express his view that the panel’s ruling did
not conflict with the interest in protecting people from violent
individuals. Id ., at 461–462 (concurring opinion).

															We granted certiorari. 600 U. S. ___
(2023)

															II

															When a restraining order contains a finding
that an individual poses a credible threat to the physical safety
of an intimate partner, that individual may—consistent with the
Second Amendment—be banned from possessing firearms while the order
is in effect. Since the founding, our Nation’s firearm laws have
included provisions preventing individuals who threaten physical
harm to others from misusing firearms. As applied to the facts of
this case, Section 922(g)(8) fits comfortably within this
tradition.

															A

															We have held that the right to keep and bear
arms is among the “fundamental rights necessary to our system of
ordered liberty.” McDonald v. Chicago , 561 U.S.
742 , 778 (2010). Derived from English practice and codified in
the Second Amendment, the right secures for Americans a means of
self-defense. Bruen , 597 U. S., at 17. The spark that
ignited the American Revolution was struck at Lexington and
Concord, when the British governor dispatched soldiers to seize the
local farmers’ arms and powder stores. In the aftermath of the
Civil War, Congress’s desire to enable the newly freed slaves to
defend themselves against former Confederates helped inspire the
passage of the Fourteenth Amendment, which secured the right to
bear arms against interference by the States. McDonald , 561
U. S., at 771–776. As a leading and early proponent of
emancipation observed, “Disarm a community and you rob them of the
means of defending life. Take away their weapons of defense and you
take away the inalienable right of defending liberty.” Cong. Globe,
40th Cong., 2d Sess., 1967 (1868) (statement of Rep. Stevens).

															“Like most rights,” though, “the right secured
by the Second Amendment is not unlimited.” District of
Columbia v. Heller , 554 U.S.
570 , 626 (2008). In Heller , this Court held that the
right applied to ordinary citizens within the home. Even as we did
so, however, we recognized that the right was never thought to
sweep indiscriminately. “From Blackstone through the 19th-century
cases, commentators and courts routinely explained that the right
was not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose.” Ibid . At the
founding, the bearing of arms was subject to regulations ranging
from rules about firearm storage to restrictions on gun use by
drunken New Year’s Eve revelers. Act of Mar. 1, 1783, 1783 Mass.
Acts and Laws ch.13, pp. 218–219; 5 Colonial Laws of New York ch.
1501, pp. 244–246 (1894). Some jurisdictions banned the carrying of
“dangerous and unusual weapons.” 554 U. S., at 627 (citing 4
W. Blackstone, Commentaries on the Laws of England 148–149 (1769)).
Others forbade carrying concealed firearms. 554 U. S., at
626.

															In Heller , our inquiry into the scope of
the right began with “constitutional text and history.” Bruen , 597 U. S., at 22. In Bruen , we directed
courts to examine our “historical tradition of firearm regulation”
to help delineate the contours of the right. Id ., at 17. We
explained that if a challenged regulation fits within that
tradition, it is lawful under the Second Amendment. We also
clarified that when the Government regulates arms-bearing conduct,
as when the Government regulates other constitutional rights, it
bears the burden to “justify its regulation.” Id. , at
24.

															Nevertheless, some courts have misunderstood the
methodology of our recent Second Amendment cases. These precedents
were not meant to suggest a law trapped in amber. As we explained
in Heller , for example, the reach of the Second Amendment is
not limited only to those arms that were in existence at the
founding. 554 U. S., at 582. Rather, it “extends, prima facie,
to all instruments that constitute bearable arms, even those that
were not [yet] in existence.” Ibid. By that same logic, the
Second Amendment permits more than just those regulations identical
to ones that could be found in 1791. Holding otherwise would be as
mistaken as applying the protections of the right only to muskets
and sabers.

															As we explained in Bruen , the appropriate
analysis involves considering whether the challenged regulation is
consistent with the principles that underpin our regulatory
tradition. 597 U. S., at 26–31. A court must ascertain whether
the new law is “relevantly similar” to laws that our tradition is
understood to permit, “apply[ing] faithfully the balance struck by
the founding generation to modern circumstances.” Id ., at
29, and n. 7. Discerning and developing the law in this way is “a
commonplace task for any lawyer or judge.” Id ., at 28.

															Why and how the regulation burdens the right are
central to this inquiry. Id ., at 29. For example, if laws at
the founding regulated firearm use to address particular problems,
that will be a strong indicator that contemporary laws imposing
similar restrictions for similar reasons fall within a permissible
category of regulations. Even when a law regulates arms-bearing for
a permissible reason, though, it may not be compatible with the
right if it does so to an extent beyond what was done at the
founding. And when a challenged regulation does not precisely match
its historical precursors, “it still may be analogous enough to
pass constitutional muster.” Id ., at 30 . The law must
comport with the principles underlying the Second Amendment, but it
need not be a “dead ringer” or a “historical twin.” Ibid. (emphasis deleted).[ 1 ]

															B

															Bearing these principles in mind, we conclude
that Section 922(g)(8) survives Rahimi’s challenge.

															1

															Rahimi challenges Section 922(g)(8) on its
face. This is the “most difficult challenge to mount successfully,”
because it requires a defendant to “establish that no set of
circumstances exists under which the Act would be valid.” United
States v. Salerno , 481 U.S.
739 , 745 (1987). That means that to prevail, the Government
need only demonstrate that Section 922(g)(8) is constitutional in
some of its applications. And here the provision is constitutional
as applied to the facts of Rahimi’s own case.

															Recall that Section 922(g)(8) provides two
independent bases for liability. Section 922(g)(8)(C)(i) bars an
individual from possessing a firearm if his restraining order
includes a finding that he poses “a credible threat to the physical
safety” of a protected person. Separately, Section 922(g)(8)(C)(ii)
bars an individual from possessing a firearm if his restraining
order “prohibits the use, attempted use, or threatened use of
physical force.” Our analysis starts and stops with Section
922(g)(8)(C)(i) because the Government offers ample evidence that
the Second Amendment permits the disarmament of individuals who
pose a credible threat to the physical safety of others. We need
not decide whether regulation under Section 922(g)(8)(C)(ii) is
also permissible.

															2

															This Court reviewed the history of American
gun laws extensively in Heller and Bruen . From the
earliest days of the common law, firearm regulations have included
provisions barring people from misusing weapons to harm or menace
others. The act of “go[ing] armed to terrify the King’s subjects”
was recognized at common law as a “great offence.” Sir John
Knight’s Case , 3 Mod. 117, 118, 87 Eng. Rep. 75, 76 (K. B.
1686). Parliament began codifying prohibitions against such conduct
as early as the 1200s and 1300s, most notably in the Statute of
Northampton of 1328. Bruen , 597 U. S., at 40. In the
aftermath of the Reformation and the English Civil War, Parliament
passed further restrictions. The Militia Act of 1662, for example,
authorized the King’s agents to “seize all Armes in the custody or
possession of any person . . . judge[d] dangerous to the
Peace of the Kingdome.” 14 Car. 2 c. 3, §13 (1662); J. Greenlee,
The Historical Justification for Prohibiting Dangerous Persons From
Possessing Arms, 20 Wyo. L. Rev. 249, 259 (2020).

															The Glorious Revolution cut back on the power of
the Crown to disarm its subjects unilaterally. King James II had
“caus[ed] several good Subjects being Protestants to be disarmed at
the same Time when Papists were . . . armed.” 1 Wm. &
Mary c. 2, §6, in 3 Eng. Stat. at Large 440 (1689). By way of
rebuke, Parliament adopted the English Bill of Rights, which
guaranteed “that the Subjects which are Protestants, may have Arms
for their Defence suitable to their Conditions, and as allowed by
Law.” §7, id ., at 441. But as the document itself
memorialized, the principle that arms-bearing was constrained “by
Law” remained. Ibid .

															Through these centuries, English law had
disarmed not only brigands and highwaymen but also political
opponents and disfavored religious groups. By the time of the
founding, however, state constitutions and the Second Amendment had
largely eliminated governmental authority to disarm political
opponents on this side of the Atlantic. See Heller , 554
U. S., at 594–595, 600–603. But regulations targeting
individuals who physically threatened others persisted. Such
conduct was often addressed through ordinary criminal laws and
civil actions, such as prohibitions on fighting or private suits
against individuals who threatened others. See 4 W. Blackstone,
Commentaries on the Laws of England 145–146, 149–150 (10th ed.
1787) (Blackstone); 3 id ., at 120. By the 1700s and early
1800s, however, two distinct legal regimes had developed that
specifically addressed firearms violence.

															The first were the surety laws. A form of
“preventive justice,” these laws derived from the ancient practice
of frankpledges. 4 id ., at 251–253. Reputedly dating to the
time of Canute, the frankpledge system involved compelling adult
men to organize themselves into ten-man “tithing[s].” A. Lefroy,
Anglo-Saxon Period of English Law, Part II, 26 Yale L. J. 388,
391 (1917). The members of each tithing then “mutually pledge[d]
for each other’s good behaviour.” 4 Blackstone 252. Should any of
the ten break the law, the remaining nine would be responsible for
producing him in court, or else face punishment in his stead. D.
Levinson, Collective Sanctions, 56 Stan. L. Rev. 345, 358
(2003).

															Eventually, the communal frankpledge system
evolved into the individualized surety regime. Under the surety
laws, a magistrate could “oblig[e] those persons, [of] whom there
is a probable ground to suspect of future misbehaviour, to
stipulate with and to give full assurance . . . that such
offence . . . shall not happen[,] by finding pledges or
securities.” 4 Blackstone 251. In other words, the law authorized
magistrates to require individuals suspected of future misbehavior
to post a bond. Ibid . If an individual failed to post a
bond, he would be jailed. See, e . g ., Mass. Rev.
Stat., ch. 134, §6 (1836). If the individual did post a bond and
then broke the peace, the bond would be forfeit. 4 Blackstone
253 . Well entrenched in the common law, the surety
laws could be invoked to prevent all forms of violence, including
spousal abuse. As Blackstone explained, “[w]ives [could] demand
[sureties] against their husbands; or husbands, if necessary,
against their wives.” Id ., at 254. These often took the form
of a surety of the peace, meaning that the defendant pledged to
“keep the peace.” Id ., at 252–253; see R. Bloch, The
American Revolution, Wife Beating, and the Emergent Value of
Privacy, 5 Early American Studies 223, 232–233, 234–235 (2007)
(Bloch) (discussing peace bonds). Wives also demanded sureties for
good behavior, whereby a husband pledged to “demean and behave
himself well.” 4 Blackstone 253; see Bloch 232–233, 234–235, and n.
34.

															While communities sometimes resorted to public
shaming or vigilante justice to chastise abusers, sureties provided
the public with a more measured solution. B. McConville, The Rise
of Rough Music, in Riot and Revelry in Early America 90–100 (W.
Pencak, M. Dennis, & S. Newman eds. 2002). In one widely
reported incident, Susannah Wyllys Strong, the wife of a
Connecticut judge, appeared before Tapping Reeve in 1790 to make a
complaint against her husband. K. Ryan, “The Spirit of
Contradiction”: Wife Abuse in New England, 1780–1820, 13 Early
American Studies 586, 602 (2015). Newspapers carried the story in
Connecticut, Massachusetts, and New York. Ibid . Reeve
ultimately ordered the man to post a bond of £1,000. Id ., at
603.

															Importantly for this case, the surety laws also
targeted the misuse of firearms. In 1795, for example,
Massachusetts enacted a law authorizing justices of the peace to
“arrest” all who “go armed offensively [and] require of the
offender to find sureties for his keeping the peace.” 1795 Mass.
Acts ch. 2, in Acts and Resolves of Massachusetts, 1794–1795, ch.
26, pp. 66–67 (1896). Later, Massachusetts amended its surety laws
to be even more specific, authorizing the imposition of bonds from
individuals “[who went] armed with a dirk, dagger, sword, pistol,
or other offensive and dangerous weapon.” Mass. Rev. Stat., ch.
134, §16; see ibid. (marginal note) (referencing the earlier
statute). At least nine other jurisdictions did the same. See Bruen , 597 U. S., at 56, and n. 23.

															These laws often offered the accused significant
procedural protections. Before the accused could be compelled to
post a bond for “go[ing] armed,” a complaint had to be made to a
judge or justice of the peace by “any person having reasonable
cause to fear” that the accused would do him harm or breach the
peace. Mass. Rev. Stat., ch. 134, §§1, 16. The magistrate would
take evidence, and—if he determined that cause existed for the
charge—summon the accused, who could respond to the allegations.
§§3–4. Bonds could not be required for more than six months at a
time, and an individual could obtain an exception if he needed his
arms for self-defense or some other legitimate reason. §16.

															While the surety laws provided a mechanism for
preventing violence before it occurred, a second regime provided a
mechanism for punishing those who had menaced others with firearms.
These were the “going armed” laws, a particular subset of the
ancient common-law prohibition on affrays.

															Derived from the French word “affraier,” meaning
“to terrify,” 4 Blackstone 145, the affray laws traced their origin
to the Statute of Northampton, 2 Edw. 3 c. 3 (1328). Although the
prototypical affray involved fighting in public, commentators
understood affrays to encompass the offense of “arm[ing]” oneself
“to the Terror of the People,” T. Barlow, The Justice of the Peace:
A Treatise 11 (1745). Moreover, the prohibitions—on fighting and
going armed—were often codified in the same statutes. E . g ., 2 Edw. 3 c. 3; Acts and Laws of His Majesty’s
Province of New-Hampshire in New-England 2 (1761).

															Whether classified as an affray law or a
distinct prohibition, the going armed laws prohibited “riding or
going armed, with dangerous or unusual weapons, [to]
terrify[ ] the good people of the land.” 4 Blackstone 149
(emphasis deleted). Such conduct disrupted the “public order” and
“le[d] almost necessarily to actual violence.” State v. Huntly , 25 N. C. 418, 421–422 (1843)
( per curiam ). Therefore, the law punished these acts
with “forfeiture of the arms . . . and imprisonment.” 4
Blackstone 149.

															In some instances, prohibitions on going armed
and affrays were incorporated into American jurisprudence through
the common law. See, e . g ., Huntly , 25
N. C., at 421–422; O’Neill v. State , 16 Ala. 65,
67 (1849); Hickman v. State , 193 Md. App. 238,
253–255, 996 A.2d 974, 983 (2010) (recognizing that common-law
prohibition on fighting in public remains even now chargeable in
Maryland). More- over, at least four States—Massachusetts, New
Hampshire, North Carolina, and Virginia—expressly codified
prohibitions on going armed. 1786 Va. Acts ch. 21; 2 Laws of the
Commonwealth of Massachusetts from Nov. 28, 1780 to Feb. 28, 1807,
pp. 652–653 (1807); Acts and Laws of His Majesty’s Province of
New-Hampshire in New-England 2 (1761); Collection of All of the
Public Acts of Assembly, of the Province of North-Carolina: Now in
Force and Use 131 (1751) (1741 statute).

															3

															Taken together, the surety and going armed
laws confirm what common sense suggests: When an individual poses a
clear threat of physical violence to another, the threatening
individual may be disarmed. Section 922(g)(8) is by no means
identical to these founding era regimes, but it does not need to
be. See Bruen , 597 U. S., at 30. Its prohibition on the
possession of firearms by those found by a court to present a
threat to others fits neatly within the tradition the surety and
going armed laws represent.

															Like the surety and going armed laws, Section
922(g)(8)(C)(i) applies to individuals found to threaten the
physical safety of another. This provision is “relevantly similar”
to those founding era regimes in both why and how it burdens the
Second Amendment right. Id ., at 29. Section 922(g)(8)
restricts gun use to mitigate demonstrated threats of physical
violence, just as the surety and going armed laws do. Unlike the
regulation struck down in Bruen , Section 922(g)(8) does not
broadly restrict arms use by the public generally.

															The burden Section 922(g)(8) imposes on the
right to bear arms also fits within our regulatory tradition. While
we do not suggest that the Second Amendment prohibits the enactment
of laws banning the possession of guns by categories of persons
thought by a legislature to present a special danger of misuse, see Heller , 554 U. S., at 626, we note that Section
922(g)(8) applies only once a court has found that the defendant
“represents a credible threat to the physical safety” of another.
§922(g)(8)(C)(i). That matches the surety and going armed laws,
which involved judicial determinations of whether a particular
defendant likely would threaten or had threatened another with a
weapon.

															Moreover, like surety bonds of limited duration,
Section 922(g)(8)’s restriction was temporary as applied to Rahimi.
Section 922(g)(8) only prohibits firearm possession so long as the
defendant “is” subject to a restraining order. §922(g)(8). In
Rahimi’s case that is one to two years after his release from
prison, according to Tex. Fam. Code Ann. §85.025(c) (West 2019).
App. 6–7.

															Finally, the penalty—another relevant aspect of
the burden—also fits within the regulatory tradition. The going
armed laws provided for imprisonment, 4 Blackstone 149, and if
imprisonment was permissible to respond to the use of guns to
threaten the physical safety of others, then the lesser restriction
of temporary disarmament that Section 922(g)(8) imposes is also
permissible.

															Rahimi argues Heller requires us to
affirm, because Section 922(g)(8) bars individuals subject to
restraining orders from possessing guns in the home, and in Heller we invalidated an “absolute prohibition of handguns
. . . in the home.” 554 U. S., at 636; Brief for
Respondent 32. But Heller never established a categorical
rule that the Constitution prohibits regulations that forbid
firearm possession in the home. In fact, our opinion stated that
many such prohibitions, like those on the possession of firearms by
“felons and the mentally ill,” are “presumptively lawful.” 554
U. S., at 626, 627, n. 26.

															Our analysis of the surety laws in Bruen also does not help Rahimi. In Bruen , we explained that the
surety laws were not a proper historical analogue for New York’s
gun licensing regime. 597 U. S., at 55–60. What distinguished
the regimes, we observed, was that the surety laws “presumed that
individuals had a right to . . . carry,” whereas New
York’s law effectively presumed that no citizen had such a right,
absent a special need. Id ., at 56 (emphasis deleted).
Section 922(g)(8)(C)(i) does not make the same faulty presumption.
To the contrary, it presumes, like the surety laws before it, that
the Second Amendment right may only be burdened once a defendant
has been found to pose a credible threat to the physical safety of
others. See ibid .

															While we also noted that the surety laws applied
different penalties than New York’s special-need regime, we did so
only to emphasize just how severely the State treated the rights of
its citizens. Id ., at 57. But as we have explained, our
Nation’s tradition of firearm regulation distinguishes citizens who
have been found to pose a credible threat to the physical safety of
others from those who have not. The conclusion that focused
regulations like the surety laws are not a historical analogue for
a broad prohibitory regime like New York’s does not mean that they
cannot be an appropriate analogue for a narrow one.

															4

															In short, we have no trouble concluding that
Section 922(g)(8) survives Rahimi’s facial challenge. Our tradition
of firearm regulation allows the Government to disarm individuals
who present a credible threat to the physical safety of others.
Section 922(g)(8) can be applied lawfully to Rahimi.

															The dissent reaches a contrary conclusion,
primarily on the ground that the historical analogues for Section
922(g)(8) are not sufficiently similar to place that provision in
our historical tradition. The dissent does, however, acknowledge
that Section 922(g)(8) is within that tradition when it comes to
the “why” of the appropriate inquiry. The objection is to the
“how.” See post , at 18 (opinion of Thomas, J.). For the
reasons we have set forth, however, we conclude that Section
922(g)(8) satisfies that part of the inquiry as well. See supra , at 7, 13–15. As we said in Bruen , a
“historical twin ” is not required. 597 U. S., at
30.

															For its part, the Fifth Circuit made two errors.
First, like the dissent, it read Bruen to require a
“historical twin” rather than a “historical analogue.” Ibid .
(emphasis deleted). Second, it did not correctly apply our
precedents governing facial challenges. 61 F. 4th, at 453. As
we have said in other contexts, “[w]hen legislation and the
Constitution brush up against each other, [a court’s] task is to
seek harmony, not to manufacture conflict.” United States v. Hansen , 599 U.S. 762, 781 (2023). Rather than consider the
circumstances in which Section 922(g)(8) was most likely to be
constitutional, the panel instead focused on hypothetical scenarios
where Section 922(g)(8) might raise constitutional concerns. See 61
F. 4th, at 459; id ., at 465–467 (Ho, J., concurring).
That error left the panel slaying a straw man.[ 2 ]

															5

															Finally, in holding that Section 922(g)(8) is
constitutional as applied to Rahimi, we reject the Government’s
contention that Rahimi may be disarmed simply because he is not
“responsible.” Brief for United States 6; see Tr. of Oral Arg.
8–11. “Responsible” is a vague term. It is unclear what such a rule
would entail. Nor does such a line derive from our case law. In Heller and Bruen , we used the term “responsible” to
describe the class of ordinary citizens who undoubtedly enjoy the
Second Amendment right. See, e . g ., Heller , 554
U. S., at 635; Bruen , 597 U. S., at 70. But those
decisions did not define the term and said nothing about the status
of citizens who were not “responsible.” The question was simply not
presented.

															*  *  *

															In Heller , McDonald , and Bruen , this Court did not “undertake an exhaustive
historical analysis . . . of the full scope of the Second
Amendment.” Bruen , 597 U. S., at 31. Nor do we do so
today. Rather, we conclude only this: An individual found by a
court to pose a credible threat to the physical safety of another
may be temporarily disarmed consistent with the Second
Amendment.

															The judgment of the Court of Appeals for the
Fifth Circuit is reversed, and the case is remanded for further
proceedings consistent with this opinion.

															It is so ordered. Notes 1 We also recognized in Bruen the “ongoing scholarly debate onwhether courts should
primarily rely on the prevailing understanding of an individual
right when the Fourteenth Amendment was ratified in 1868 when
defining its scope (as well as the scope of the right against the
Federal Government).” 597 U. S., at 37. We explained that
under the circumstances, resolving the dispute was unnecessary to
decide the case. Id ., at 37–38. The same is true
here. 2 Many of the potential
faults that the Fifth Circuit identifies in Section 922(g)(8)
appear to sound in due process rather than the Second Amendment. E . g ., 61 F. 4th, at 459; id ., at 465–467
(Ho, J., concurring). As we have explained, unless these
hypothetical faults occur in every case, they do not justify
invalidating Section 922(g)(8) on its face. See United
States v. Salerno , 481 U.S.
739 , 745 (1987) (a facial challenge fails if the law is
constitutional in at least some of its applications). In any event,
we need not address any due process concern here because this
challenge was not litigated as a due process challenge and there is
no such claim before us. See this Court’s Rule
14.1(a). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–915

															_________________

															UNITED STATES, PETITIONER v. ZACKEY
RAHIMI

															on writ of certiorari to the united states
court of appeals for the fifth circuit

															[June 21, 2024]

															Justice Sotomayor, with whom Justice Kagan
joins, concurring.

															Today, the Court applies its decision in New
York State Rifle & Pistol Assn., Inc. v. Bruen , 597
U.S. 1 (2022), for the first time. Although I continue to believe
that Bruen was wrongly decided, see id ., at 83–133
(Breyer, J., joined by Sotomayor and Kagan, JJ., dissenting), I
join the Court’s opinion applying that precedent to uphold 18
U. S. C. §922(g)(8).

															The Court today emphasizes that a challenged
regulation “must comport with the principles underlying the Second
Amendment,” but need not have a precise historical match. Ante, at 7–8. I agree. I write separately to highlight why
the Court’s interpretation of Bruen , and not the dissent’s,
is the right one. In short, the Court’s interpretation permits a
historical inquiry calibrated to reveal something useful and
transferable to the present day, while the dissent would make the
historical inquiry so exacting as to be useless, a too-sensitive
alarm that sounds whenever a regulation did not exist in an
essentially identical form at the founding.

															I

															Even under Bruen , this is an easy case.
Section 922(g)(8) prohibits an individual subject to a domestic
violence restraining order from possessing a firearm, so long as
certain criteria are met. See ante, at 3–4. Section
922(g)(8) is wholly consistent with the Nation’s history and
tradition of firearm regulation.

															The Court correctly concludes that “the Second
Amendment permits the disarmament of individuals who pose a
credible threat to the physical safety of others.” Ante, at
8. That conclusion finds historical support in both the surety
laws, which “provided a mechanism for preventing violence before it
occurred” by requiring an individual who posed a credible threat of
violence to another to post a surety, and the “going armed” laws,
which “provided a mechanism for punishing those who had menaced
others with firearms” through forfeiture of the arms or
imprisonment. Ante, at 12. “Taken together, the surety and
going armed laws confirm what common sense suggests: When an
individual poses a clear threat of physical violence to another,
the threatening individual may be disarmed.” Ante, at 13.
Section 922(g)(8)’s prohibition on gun possession for individuals
subject to domestic violence restraining orders is part of that
“tradition of firearm regulation allow[ing] the Government to
disarm individuals who present a credible threat to the physical
safety of others,” ante, at 16, as are the similar
restrictions that have been adopted by 48 States and Territories,
see Brief for United States 34–35, and nn. 22–23 (collecting
statutes).

															The Court’s opinion also clarifies an important
methodological point that bears repeating: Rather than asking
whether a present-day gun regulation has a precise historical
analogue, courts applying Bruen should “conside[r] whether
the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Ante, at 7
(emphasis added); see also ante, at 7–8 (“The law must
comport with the principles underlying the Second Amendment, but it
need not be a ‘dead ringer’ or a ‘historical twin’ ” (quoting Bruen , 597 U. S., at 30)). Here, for example, the
Government has not identified a founding-era or Reconstruction-era
law that specifically disarmed domestic abusers, see, e . g ., Tr. of Oral Arg. 40 (conceding as much), but it
did not need to do so. Although §922(g)(8) “is by no means
identical” to the surety or going armed laws, ante, at 13,
it “restricts gun use to mitigate demonstrated threats of physical
violence, just as the surety and going armed laws d[id],” ante, at 14. That shared principle is sufficient.

															II

															The dissent reaches a different conclusion by
applying the strictest possible interpretation of Bruen . It
picks off the Government’s historical sources one by one, viewing
any basis for distinction as fatal. See, e . g ., post , at 18 (opinion of Thomas, J.) (“Although surety laws
shared a common justification with §922(g)(8), surety laws imposed
a materially different burden”); post , at 25–26 (explaining
that “[a]ffray laws are wide of the mark” because they “expressly
carve out the very conduct §922(g)(8) was designed to prevent
(interpersonal violence in the home)”). The dissent urges a close
look “at the historical law’s justification as articulated during
the relevant time period,” post , at 28, and a “careful
parsing of regulatory burdens” to ensure that courts do not “stray
too far from [history] by eliding material differences between
historical and modern laws,” post , at 15. The dissent
criticizes this Court for adopting a more “piecemeal approach” that
distills principles from a variety of historical evidence rather
than insisting on a precise historical analogue. Post , at
21.

															If the dissent’s interpretation of Bruen were the law, then Bruen really would be the “one-way
ratchet” that I and the other dissenters in that case feared,
“disqualify[ing] virtually any ‘representative historical analogue’
and mak[ing] it nearly impossible to sustain common-sense
regulations necessary to our Nation’s safety and security.” 597
U. S., at 112 (Breyer, J., dissenting). Thankfully, the Court
rejects that rigid approach to the historical inquiry. As the Court
puts it today, Bruen was “not meant to suggest a law trapped
in amber.” Ante, at 7.

															This case lays bare the perils of the dissent’s
approach. Because the dissent concludes that “§922(g)(8) addresses
a societal problem—the risk of interpersonal violence—‘that has
persisted since the 18th century,’ ” it insists that the means
of addressing that problem cannot be “ ‘materially
different’ ” from the means that existed in the 18th century. Post , at 7. That is so, it seems, even when the weapons in
question have evolved dramatically. See R. Roth, Why Guns Are and
Are Not the Problem, in A Right To Bear Arms?: The Contested Role
of History in Contemporary Debates on the Second Amendment 117 (J.
Tucker, B. Hacker, & M. Vining eds. 2019) (explaining that guns
in the 18th century took a long time to load, typically fired only
one shot, and often misfired). According to the dissent, the
solution cannot be “materially different” even when societal
perception of the problem has changed, and even if it is now clear
to everyone that the historical means of addressing the problem had
been wholly inadequate. Given the fact that the law at the founding
was more likely to protect husbands who abused their spouses than
offer some measure of accountability, see, e . g ., R.
Siegel, “The Rule of Love”: Wife Beating as Prerogative and
Privacy, 105 Yale L. J. 2117, 2154–2170 (1996), it is no
surprise that that generation did not have an equivalent to
§922(g)(8). Under the dissent’s approach, the legislatures of today
would be limited not by a distant generation’s determination that
such a law was unconstitutional, but by a distant generation’s
failure to consider that such a law might be necessary. History has
a role to play in Second Amendment analysis, but a rigid adherence
to history, (particularly history predating the inclusion of women
and people of color as full members of the polity), impoverishes
constitutional interpretation and hamstrings our democracy.

															III

															The Court today clarifies Bruen ’s
historical inquiry and rejects the dissent’s exacting historical
test. I welcome that development. That being said, I remain
troubled by Bruen ’s myopic focus on history and tradition,
which fails to give full consideration to the real and present
stakes of the problems facing our society today. In my view, the
Second Amendment allows legislators “to take account of the serious
problems posed by gun violence,” Bruen , 597 U. S., at
91 (Breyer, J., dissenting), not merely by asking what their
predecessors at the time of the founding or Reconstruction thought,
but by listening to their constituents and crafting new and
appropriately tailored solutions. Under the means-end scrutiny that
this Court rejected in Bruen but “regularly use[s]
. . . in cases involving other constitutional
provisions,” id ., at 106, the constitutionality of
§922(g)(8) is even more readily apparent.[ 1 ]*

															To start, the Government has a compelling
interest in keeping firearms out of the hands of domestic abusers.
A woman who lives in a house with a domestic abuser is five times
more likely to be murdered if the abuser has access to a gun. See
A. Kivisto & M. Porter, Firearm Use Increases Risk of Multiple
Victims in Domestic Homicides, 48 J. Am. Acad. Psychiatry & L.
26 (2020). With over 70 people shot and killed by an intimate
partner each month in the United States, the seriousness of the
problem can hardly be overstated. See Centers for Disease Control
and Prevention, WISQARS Nat. Violent Death Reporting System,
Violent Deaths Report 2020, https://wisqars.cdc.gov/nvdrs (showing
that 863 people were killed with a firearm by a spouse or other
intimate partner in 2020). Because domestic violence is rarely
confined to the intimate partner that receives the protective
order, the Government’s interest extends even further. In roughly a
quarter of cases where an abuser killed an intimate partner, the
abuser also killed someone else, such as a child, family member, or
roommate. See S. Smith, K. Fowler, & P. Niolon, Intimate
Partner Homicide and Corollary Victims in 16 States: National
Violent Death Reporting System, 2003–2009, 104 Am. J. Pub. Health
461, 463–464 (2014). Moreover, one study found that domestic
disputes were the most dangerous type of call for responding
officers, causing more officer deaths with a firearm than any other
type of call. See N. Breul & M. Keith, Deadly Calls and Fatal
Encounters: Analysis of U. S. Law Enforcement Line of Duty
Deaths When Officers Responded to Dispatched Calls for Service and
Conducted Enforcement, 2010–2014, p. 15 (2016).

															While the Second Amendment does not yield
automatically to the Government’s compelling interest, §922(g)(8)
is tailored to the vital objective of keeping guns out of the hands
of domestic abusers. See ante, at 3–4, 14. Section 922(g)(8)
should easily pass constitutional muster under any level of
scrutiny.

															Although I continue to think that the means-end
approach to Second Amendment analysis is the right one, neither
party asks the Court to reconsider Bruen at this time, and
that question would of course involve other considerations than
whether Bruen was rightly decided. Whether considered under Bruen or under means-end scrutiny, §922(g)(8) clears the
constitutional bar. I join in full the Court’s opinion, which
offers a more helpful model than the dissent for lower courts
struggling to apply Bruen . Notes 1 *By “means-end scrutiny,” I
refer to the mode of analysis that would permit courts “to consider
the State’s interest in preventing gun violence, the effectiveness
of the contested law in achieving that interest, the degree to
which the law burdens the Second Amendment right, and, if
appropriate, any less restrictive alternatives.” Bruen , 597
U. S., at 131 (Breyer, J., dissenting). Prior to Bruen ,
the Courts of Appeals would apply a level of means-end scrutiny
“ ‘proportionate to the severity of the burden that the law
imposes on the right’: strict scrutiny if the burden is severe, and
intermediate scrutiny if it is not.” Id ., at
103. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–915

															_________________

															UNITED STATES, PETITIONER v. ZACKEY RAHIMI

															on writ of certiorari to the united states court of appeals for
the fifth circuit

															[June 21, 2024]

															Justice Gorsuch, concurring.

															Mr. Rahimi pursues the “most difficult challenge to mount
successfully”: a facial challenge. United States v. Salerno , 481 U.S.
739 , 745 (1987). He contends that 18 U. S. C.
§922(g)(8) violates the Second Amendment “in all its applications.” Bucklew v. Precythe , 587 U.S. 119, 138 (2019). To
prevail, he must show “no set of circumstances” exists in which
that law can be applied without violating the Second Amendment. Salerno , 481 U. S., at 745. I agree with the Court that
he has failed to make that showing. Ante , at 8.

															That is not because the Constitution has little to say about the
matter. The Second Amendment protects the “right of the people to
keep and bear Arms.” “ ‘[T]ext and history’ ” dictate the
contours of that right. Ante , at 6 (quoting New York
State Rifle Pistol Assn., Inc. v. Bruen , 597 U.S. 1, 22
(2022)). As this Court has recognized, too, the Amendment’s text
“ ‘guarantee[s] the individual right to possess and carry
weapons in case of confrontation.’ ” Id ., at 32
(quoting District of Columbia v. Heller , 554 U.S.
570 , 592 (2008)). And where that “text covers an individual’s
conduct,” a law regulating that conduct may be upheld only if it is
“consistent with this Nation’s historical tradition of firearms
regulation.” 597 U. S., at 17; see ante , at 6.

															In this case, no one questions that the law Mr. Rahimi
challenges addresses individual conduct covered by the text of the
Second Amendment. So, in this facial challenge, the question
becomes whether that law, in at least some of its applications, is
consistent with historic firearm regulations. To prevail, the
government need not show that the current law is a “ ‘dead
ringer’ ” for some historical analogue. Ante , at 8
(quoting Bruen , 597 U. S., at 30). But the government
must establish that, in at least some of its applications, the
challenged law “impose[s] a comparable burden on the right of armed
self-defense” to that imposed by a historically recognized
regulation. Id ., at 29; see ante , at 7. And it must
show that the burden imposed by the current law “is comparably
justified.” Bruen , 597 U. S., at 29; see ante ,
at 7.

															Why do we require those showings? Through them, we seek to honor
the fact that the Second Amendment “codified a pre-existing right” belonging to the American people, one that carries the same
“scope” today that it was “understood to have when the people
adopted” it. Heller , 554 U. S., at 592, 634–635. When
the people ratified the Second Amendment, they surely understood an
arms-bearing citizenry posed some risks. But just as surely they
believed that the right protected by the Second Amendment was
itself vital to the preservation of life and liberty. See, e . g ., 1 Blackstone’s Commentaries, Editor’s App. 300
(St. George Tucker ed. 1803) (observing that the Second Amendment
may represent the “palladium of liberty,” for “[t]he right of self
defence is the first law of nature,” and “in most governments[,] it
has been the study of rulers to confine this right within the
narrowest limits”); 3 J. Story, Commentaries on the Constitution of
the United States §1890, p. 746 (1833) (“The right of the citizens
to keep and bear arms has justly been considered, as the palladium
of the liberties of a republic”).

															We have no authority to question that judgment. As judges
charged with respecting the people’s directions in the
Constitution—directions that are “trapped in amber,” see ante , at 7—our only lawful role is to apply them in the
cases that come before us. Developments in the world may change,
facts on the ground may evolve, and new laws may invite new
challenges, but the Constitution the people adopted remains our
enduring guide. Bruen , 597 U. S., at 27–28; see, e . g ., United States v. Jones , 565 U.S.
400 , 404–405 (2012); Caetano v. Massachusetts , 577 U.S.
411 , 411–412 (2016) ( per curiam ). If changes are to
be made to the Constitution’s directions, they must be made by the
American people. Nor is there anything remotely unusual about any
of this. Routinely, litigants and courts alike must consult history
when seeking to discern the meaning and scope of a constitutional
provision. See post , at 6–16 (Kavanaugh, J., concurring)
(offering examples). And when doing so, litigants and courts “must
exercise care.” See post , at 3, n. (Barrett, J.,
concurring).

															Consider just one example. We have recognized that the Sixth
Amendment enshrines another pre-existing right: the right of a
defendant to confront his accusers at trial. Crawford v. Washington , 541 U.S.
36 , 54 (2004). Just as here, we have recognized that, in
placing this right in the Constitution, the people set its scope,
“admitting only those exceptions established at the time of the
founding.” Ibid. And, just as here, when a party asks us to
sustain some modern exception to the confrontation right, we
require them to point to a close historic analogue to justify it.
See Giles v. California , 554
U.S. 353 , 358–361 (2008). Just as here, too, we have expressly
rejected arguments that courts should proceed differently, such as
by trying to glean from historic exceptions overarching “policies,”
“ ‘purposes,’ ” or “values” to guide them in future
cases. See id ., at 374–375 (opinion of Scalia, J.). We have
rejected those paths because the Constitution enshrines the
people’s choice to achieve certain policies, purposes, and values
“through very specific means”: the right of confrontation as
originally understood at the time of the founding. Id ., at
375. As we have put it, a court may not “extrapolate” from the
Constitution’s text and history “the values behind [that right],
and then . . . enforce its guarantees only to the extent
they serve (in the courts’ views) those underlying values.” Ibid. Proceeding that way, we have warned, risks handing
judges a license to turn “the guarantee of confrontation” into “no
guarantee at all.” Ibid . As there, so too here: Courts must
proceed with care in making comparisons to historic firearms
regulations, or else they risk gaming away an individual right the
people expressly preserved for themselves in the Constitution’s
text.

															Proceeding with this well in mind today, the Court rightly holds
that Mr. Rahimi’s facial challenge to §922(g)(8) cannot succeed. It
cannot because, through surety laws and restrictions on “going
armed,” the people in this country have understood from the start
that the government may disarm an individual temporarily after a
“judicial determinatio[n]” that he “likely would threaten or ha[s]
threatened another with a weapon.” Ante , at 14. And, at
least in some cases, the statute before us works in the same way
and does so for the same reasons: It permits a court to disarm a
person only if, after notice and hearing, it finds that he
“represents a credible threat to the physical safety” of others.
§§922(g)(8)(A), (g)(8)(C)(i). A court, too, may disarm an
individual only for so long as its order is in effect. §922(g)(8).
In short, in at least some applications, the challenged law does
not diminish any aspect of the right the Second Amendment was
originally understood to protect. See Bruen , 597 U. S.,
at 24.

															I appreciate that one of our colleagues sees things differently. Post , at 6–7 (Thomas, J., dissenting). But if reasonable
minds can disagree whether §922(g)(8) is analogous to past
practices originally understood to fall outside the Second
Amendment’s scope, we at least agree that is the only proper
question a court may ask. Post , at 5. Discerning what the
original meaning of the Constitution requires in this or that case
may sometimes be difficult. Asking that question, however, at least
keeps judges in their proper lane, seeking to honor the supreme law
the people have ordained rather than substituting our will for
theirs. And whatever indeterminacy may be associated with seeking
to honor the Constitution’s original meaning in modern disputes,
that path offers surer footing than any other this Court has
attempted from time to time. Come to this Court with arguments from
text and history, and we are bound to reason through them as best
we can. (As we have today.) Allow judges to reign unbounded by
those materials, or permit them to extrapolate their own broad new
principles from those sources, and no one can have any idea how
they might rule. (Except the judges themselves.) Faithful adherence
to the Constitution’s original meaning may be an imperfect guide,
but I can think of no more perfect one for us to follow.

															Just consider how lower courts approached the Second Amendment
before our decision in Bruen . They reviewed firearm
regulations under a two-step test that quickly “devolved” into an
interest-balancing inquiry, where courts would weigh a law’s burden
on the right against the benefits the law offered. See Rogers v. Grewal , 590 U. S. ___, ___, and n. 1
(2020) (Thomas, J., joined by Kavanaugh, J., dissenting from denial
of certiorari) (slip op., at 5, and n. 1); see also, e . g ., Peruta v. County of San Diego ,
742 F.3d 1144, 1167–1168, 1176–1177 (CA9 2014); Drake v. Filko , 724 F.3d 426, 457 (CA3 2013) (Hardiman, J.,
dissenting). Some judges expressed concern that the prevailing
two-step test had become “just window dressing for judicial
policymaking.” Duncan v. Bonta , 19 F. 4th 1087, 1148
(CA9 2021) (en banc) (Bumatay, J., dissenting). To them, the
inquiry worked as a “black box regime” that gave a judge broad
license to support policies he “[f]avored” and discard those he
disliked. Ibid. How did the government fare under that
regime? In one circuit, it had an “undefeated, 50–0 record.” Id ., at 1167, n. 8 (VanDyke, J., dissenting). In Bruen , we rejected that approach for one guided by
constitutional text and history. 597 U. S., at 19. Perhaps
judges’ jobs would be easier if they could simply strike the policy
balance they prefer. And a principle that the government always
wins surely would be simple for judges to implement. But either
approach would let judges stray far from the Constitution’s
promise. See Heller , 554 U. S., at 634.

															One more point: Our resolution of Mr. Rahimi’s facial challenge
to §922(g)(8) necessarily leaves open the question whether the
statute might be unconstitutional as applied in “particular
circumstances.” Salerno , 481 U. S., at 751. So, for
example, we do not decide today whether the government may disarm a
person without a judicial finding that he poses a “credible threat”
to another’s physical safety. §922(g)(8)(C)(i); see ante , at
8. We do not resolve whether the government may disarm an
individual permanently. See ante , at 14 (stressing that,
“like surety bonds of limited duration, Section 922(g)(8)’s
restriction was temporary as applied to [Mr.] Rahimi”). We do not
determine whether §922(g)(8) may be constitutionally enforced
against a person who uses a firearm in self-defense. Notably, the
surety laws that inform today’s decision allowed even an individual
found to pose a threat to another to “obtain an exception if he
needed his arms for self-defense.” Ante , at 12; see also post , at 23 (Thomas, J., dissenting). Nor do we purport to
approve in advance other laws denying firearms on a categorical
basis to any group of persons a legislature happens to deem, as the
government puts it, “not ‘responsible.’ ” Ante , at 17
(quoting Brief for United States 6); see Tr. of Oral Arg. 31–32;
see also post , at 27 (opinion of Thomas, J.) (“Not a single
Member of the Court adopts the Government’s theory”).

															We do not resolve any of those questions (and perhaps others
like them) because we cannot. Article III of the Constitution vests
in this Court the power to decide only the “ ‘actual
cas[e]’ ” before us, “ ‘not abstractions.’ ” Public Workers v. Mitchell , 330 U.S.
75 , 89 (1947). And the case before us does not pose the
question whether the challenged statute is always lawfully applied,
or whether other statutes might be permissible, but only whether
this one has any lawful scope. Nor should future litigants
and courts read any more into our decision than that. As this Court
has long recognized, what we say in our opinions must “be taken in
connection with the case in which those expressions are used,” Cohens v. Virginia , 6 Wheat. 264, 399 (1821), and may
not be “stretch[ed] . . . beyond their context,” Brown v. Davenport , 596 U.S. 118, 141 (2022).

															Among all the opinions issued in this case, its central messages
should not be lost. The Court reinforces the focus on text,
history, and tradition, following exactly the path we described in Bruen . Ante , at 5–8. And after carefully consulting
those materials, the Court “conclude[s] only this”: “An
individual found by a court to pose a credible threat to the
physical safety of another may be temporarily disarmed consistent
with the Second Amendment.” Ante , at 17 (emphasis added).
With these observations, I am pleased to concur. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–915

															_________________

															UNITED STATES, PETITIONER v. ZACKEY RAHIMI

															on writ of certiorari to the united states court of appeals for
the fifth circuit

															[June 21, 2024]

															Justice Kavanaugh, concurring.

															The Framers of the Constitution and Bill of Rights wisely sought
the best of both worlds: democratic self-government and the
protection of individual rights against excesses of that form of
government. In justiciable cases, this Court determines whether a
democratically enacted law or other government action infringes on
individual rights guaranteed by the Constitution. When performing
that Article III duty, the Court does not implement its own policy
judgments about, for example, free speech or gun regulation.
Rather, the Court interprets and applies the Constitution by
examining text, pre-ratification and post-ratification history, and
precedent. The Court’s opinion today does just that, and I join it
in full.

															The concurring opinions, and the briefs of the parties and amici in this case, raise important questions about judicial
reliance on text, history, and precedent, particularly in Second
Amendment cases. I add this concurring opinion to review the proper
roles of text, history, and precedent in constitutional
interpretation.

															I

															The American people established an enduring American
Constitution. The first and most important rule in constitutional
interpretation is to heed the text—that is, the actual words of the
Constitution—and to interpret that text according to its ordinary
meaning as originally understood. The text of the Constitution is
the “Law of the Land.” Art. VI. As a general matter, the text of
the Constitution says what it means and means what it says. And
unless and until it is amended, that text controls.

															In many important provisions, the Constitution is a document of
majestic specificity with “strikingly clean prose.” A. Amar,
America’s Constitution xi (2005). Two Houses of Congress. A House
elected every two years. Senators serve 6-year terms. Two Senators
per State. A State’s equal suffrage in the Senate may not be
changed without the State’s consent. A two-thirds House vote to
expel a Member of the House. The same for the Senate.
Appropriations are made by law. Bicameralism and presentment. The
Presidential veto. The Presidential pardon. The President serves a
4-year term. A maximum of two elected terms for a President. The
salary of a sitting President may not be increased or decreased. A
vote of a majority of the House and two-thirds of the Senate to
remove a President. The President nominates and the Senate confirms
principal executive officers. One Supreme Court. Tenure and salary
protection for Supreme Court and other federal judges. Two-thirds
of each House of Congress together with three-fourths of the States
may amend the Constitution. Congress meets at noon on January 3rd
unless otherwise specified by Congress. The District of Columbia
votes in Presidential elections. The list goes on.

															Those and many other constitutional provisions are relatively
clear. And when the “framers of the Constitution employed words in
their natural sense; and where they are plain and clear, resort to
collateral aids to interpretation is unnecessary and cannot be
indulged in to narrow or enlarge the text.” McPherson v. Blacker , 146 U.S.
1 , 27 (1892).

															Of course, some provisions of the Constitution are broadly
worded or vague—to put it in Madison’s words, “more or less obscure
and equivocal.” The Federalist No. 37, p. 229 (C. Rossiter ed.
1961). As Chief Justice Rehnquist explained, the Constitution is in
some parts “obviously not a specifically worded document but one
couched in general phraseology.” W. Rehnquist, The Notion of a
Living Constitution, 54 Texas L. Rev. 693, 697 (1976).

															That is especially true with respect to the broadly worded or
vague individual-rights provisions. (I will use the terms “broadly
worded” and “vague” interchangeably in this opinion.) For example,
the First Amendment provides that “Congress shall make no law”
“abridging the freedom of speech.” And the Second Amendment, at
issue here, guarantees that “the right of the people to keep and
bear Arms” “shall not be infringed.”

															Read literally, those Amendments might seem to grant absolute protection, meaning that the government could never
regulate speech or guns in any way. But American law has long
recognized, as a matter of original understanding and original
meaning, that constitutional rights generally come with
exceptions.

															With respect to the First Amendment, for example, this Court’s
“jurisprudence over the past 216”—now 233—“years has rejected an
absolutist interpretation.” Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U.S.
449 , 482 (2007) (opinion of Roberts, C. J.); see R. Bork,
Neutral Principles and Some First Amendment Problems, 47 Ind.
L. J. 1, 21–22 (1971). From 1791 to the present, “the First
Amendment has permitted restrictions upon the content of speech in
a few limited areas”—including obscenity, defamation, fraud, and
incitement. United States v. Stevens , 559 U.S.
460 , 468 (2010) (quotation marks omitted). So too with respect
to the Second Amendment: “Like most rights, the right secured by
the Second Amendment is not unlimited”; it is “not a right to keep
and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.” District of Columbia v. Heller , 554
U.S. 570 , 626 (2008).

															II

															A recurring and difficult issue for judges, therefore, is how to
interpret vague constitutional text. That issue often arises (as
here) in the context of determining exceptions to textually
guaranteed individual rights. To what extent does the Constitution
allow the government to regulate speech or guns, for
example?[ 1 ]

															In many cases, judicial precedent informs or controls the answer
(more on that later). But absent precedent, there are really only
two potential answers to the question of how to determine
exceptions to broadly worded constitutional rights: history or
policy.

															Generally speaking, the historical approach examines the laws,
practices, and understandings from before and after ratification
that may help the interpreter discern the meaning of the
constitutional text and the principles embodied in that text. The
policy approach rests on the philosophical or policy dispositions
of the individual judge.

															History, not policy, is the proper guide.

															For more than 200 years, this Court has relied on history when
construing vague constitutional text in all manner of
constitutional disputes. For good reason. History can supply
evidence of the original meaning of vague text. History is far less
subjective than policy. And reliance on history is more consistent
with the properly neutral judicial role than an approach where
judges subtly (or not so subtly) impose their own policy views on
the American people.

															Judges are like umpires, as The Chief Justice has aptly
explained. And in a constitutional system that counts on an
independent Judiciary, judges must act like umpires. To be an
umpire, the judge “must stick close to the text and the history,
and their fair implications,” because there “is no principled way”
for a neutral judge “to prefer any claimed human value to any
other.” R. Bork, Neutral Principles and Some First Amendment
Problems, 47 Ind. L. J. 1, 8 (1971). History establishes a
“criterion that is conceptually quite separate from the preferences
of the judge himself.” A. Scalia, Originalism: The Lesser Evil, 57
U. Cin. L. Rev. 849, 864 (1989). When properly applied, history
helps ensure that judges do not simply create constitutional
meaning “out of whole cloth.” A. Scalia, The Rule of Law as a Law
of Rules, 56 U. Chi. L. Rev. 1175, 1183 (1989).[ 2 ]

															Absent precedent, therefore, history guides the interpretation
of vague constitutional text. Of course, this Court has been
deciding constitutional cases for about 230 years, so relevant
precedent often exists. As the Court’s opinions over time amply
demonstrate, precedent matters a great deal in constitutional
interpretation.

															I now turn to explaining how courts apply pre-ratification
history, post-ratification history, and precedent when analyzing
vague constitutional text.

															A Pre-ratification history . When interpreting vague
constitutional text, the Court typically scrutinizes the stated
intentions and understandings of the Framers and Ratifiers of the
Constitution (or, as relevant, the Amendments). The Court also
looks to the understandings of the American people from the
pertinent ratification era. Those intentions and understandings do
not necessarily determine meaning, but they may be strong evidence
of meaning. See generally, e.g. , The Federalist (C. Rossiter
ed. 1961); Records of the Federal Convention of 1787 (M. Farrand
ed. 1911); Debates on the Federal Constitution (J. Elliot ed.
1836).

															Especially for the original Constitution and the Bill of Rights,
the Court also examines the pre-ratification history in the
American Colonies, including pre-ratification laws and practices.
And the Court pays particular attention to the historical laws and
practices in the United States from Independence in 1776 until
ratification in 1788 or 1791. Pre-ratification American history can
shed light on constitutional meaning in various ways.

															For example, some provisions of the Constitution use language
that appeared in the Articles of Confederation or state
constitutional provisions. And when the language that appeared in
the Articles of Confederation or in state constitutions is the same
as or similar to the language in the U. S. Constitution, the
history of how people understood the language in the Articles or
state constitutions can inform interpretation of that language in
the U. S. Constitution. See, e . g ., Moore v. Harper , 600 U.S. 1, 33 (2023) (the “Framers did not write
the Elections Clause on a blank slate—they instead borrowed from
the Articles of Confederation” as evidenced by their use of
“closely parallel” language); District of Columbia v. Heller , 554 U.S.
570 , 600–601 (2008) (“Our interpretation is confirmed by
analogous arms-bearing rights in state constitutions that preceded
and immediately followed adoption of the Second Amendment”); United States Steel Corp . v. Multistate Tax Comm’n , 434 U.S.
452 , 460, and n. 10 (1978) (“The history of interstate
agreements under the Articles of Confederation suggests the same
distinction between ‘treaties, alliances, and confederations’ on
the one hand, and ‘agreements and compacts’ on the other,” as the
distinction made in the Constitution’s Treaty and Compact
Clauses).

															Similarly, other pre-ratification national or state laws and
practices may sometimes help an interpreter discern the meaning of
particular constitutional provisions. Those pre-ratification
American laws and practices formed part of the foundation on which
the Framers constructed the Constitution and Bill of Rights.
Indeed, the Constitution did not displace but largely co-exists
with state constitutions and state laws, except to the extent they
conflict with federal law. See Art. VI.

															On the other hand, some pre-ratification history can be
probative of what the Constitution does not mean. The
Framers drafted and approved many provisions of the Constitution
precisely to depart from rather than adhere to certain
pre-ratification laws, practices, or understandings.

															For example, the “defects” of the Articles of Confederation
inspired some of the key decisions made by the Framers in
Philadelphia and by the First Congress in drafting the Bill of
Rights. The Federalist No. 37, at 224 (J. Madison); see, e . g ., id ., at 226 (“the existing Confederation
is founded on principles which are fallacious; that we must
consequently change this first foundation, and with it the
superstructure resting upon it”); PennEast Pipeline Co. v. New Jersey , 594 U.S. 482, 508 (2021) (“When the
Framers met in Philadelphia in the summer of 1787, they sought to
create a cohesive national sovereign in response to the failings of
the Articles of Confederation”); Sosa v. Alvarez-Machain , 542 U.S.
692 , 716–717 (2004) (“The Continental Congress was hamstrung by
its inability to ‘cause infractions of treaties, or of the law of
nations to be punished,’ ” and the “Framers responded by
vesting the Supreme Court with original jurisdiction over ‘all
Cases affecting Ambassadors, other public ministers and Consuls,’
and the First Congress followed through” (citation omitted)); U. S. Term Limits, Inc. v. Thornton , 514 U.S.
779 , 803 (1995) (“After the Constitutional Convention convened,
the Framers were presented with, and eventually adopted a variation
of, a plan not merely to amend the Articles of Confederation but to
create an entirely new National Government with a National
Executive, National Judiciary, and a National Legislature”
(quotation marks omitted)).

															The pre-ratification history of America’s many objections to
British laws and the system of oppressive British rule over the
Colonies—identified most prominently in the Declaration of
Independence—can likewise inform interpretation of some of the
crucial provisions of the original Constitution and Bill of Rights.
Compare Declaration of Independence ¶11 (under British rule, the
King “made Judges dependent on his Will alone, for the tenure of
their offices, and the amount and payment of their salaries”) with
U. S. Const., Art. III, §1 (“The Judges, both of the
supreme and inferior Courts, shall hold their Offices during good
Behaviour, and shall, at stated Times, receive for their Services,
a Compensation, which shall not be diminished during their
Continuance in Office”); see, e . g ., The Federalist
No. 37, at 226 (“The most that the convention could do” “was to
avoid the errors suggested by the past experience of other
countries, as well as of our own”); 1 Annals of Cong. 436 (1789)
(J. Madison) (“The freedom of the press and rights of conscience,
those choicest privileges of the people, are unguarded in the
British Constitution”).

															This Court has recognized, for example, that no “purpose in
ratifying the Bill of Rights was clearer than that of securing for
the people of the United States much greater freedom of religion,
expression, assembly, and petition than the people of Great Britain
had ever enjoyed.” Bridges v. California , 314 U.S.
252 , 265 (1941). Ratified as it was “while the memory of many
oppressive English restrictions on the enumerated liberties was
still fresh,” the Bill of Rights “cannot reasonably be taken as
approving prevalent English practices.” Ibid .; see, e . g ., Hosanna-Tabor Evangelical Lutheran Church
and School v. EEOC , 565 U.S.
171 , 183 (2012) (“Familiar with life under the established
Church of England, the founding generation sought to foreclose the
possibility of a national church” through the First Amendment’s
Establishment Clause); Powell v. Alabama , 287 U.S.
45 , 60 (1932) (right to counsel under the Sixth Amendment
reflected America’s rejection of the English common law rule that a
“person charged with treason or felony was denied the aid of
counsel”).[ 3 ]

															The Equal Protection Clause provides another example. Ratified
in 1868, that Clause sought to reject the Nation’s history of
racial discrimination, not to backdoor incorporate racially
discriminatory and oppressive historical practices and laws into
the Constitution. See generally Flowers v. Mississippi , 588 U.S. 284 (2019); Batson v. Kentucky , 476 U.S.
79 (1986); Loving v. Virginia , 388 U.S. 1 (1967); Brown v. Board of Education , 347 U.S.
483 (1954).

															In short, pre-ratification American history—that is,
pre-ratification laws, practices, and understandings—can inform
interpretation of vague constitutional provisions in the original
Constitution and Bill of Rights. The same principle of looking to
relevant pre-ratification history applies when interpreting broadly
worded language in the later amendments, including the Fourteenth
Amendment ratified in 1868. But in using pre-ratification history,
courts must exercise care to rely only on the history that the
Constitution actually incorporated and not on the history that the
Constitution left behind.

															B Post-ratification history . As the Framers made clear, and
as this Court has stated time and again for more than two
centuries, post-ratification history—sometimes referred to as
tradition—can also be important for interpreting vague
constitutional text and determining exceptions to individual
constitutional rights. When the text is vague and the
pre-ratification history is elusive or inconclusive,
post-ratification history becomes especially important. Indeed,
absent precedent, there can be little else to guide a judge
deciding a constitutional case in that situation, unless the judge
simply defaults to his or her own policy preferences.

															After ratification, the National Government and the state
governments began interpreting and applying the Constitution’s
text. They have continued to do so ever since. As the national and
state governments over time have enacted laws and implemented
practices to promote the general welfare, those laws and practices
have often reflected and reinforced common understandings of the
Constitution’s authorizations and limitations.

															Post-ratification interpretations and applications by government
actors—at least when reasonably consistent and longstanding—can be
probative of the meaning of vague constitutional text. The
collective understanding of Americans who, over time, have
interpreted and applied the broadly worded constitutional text can
provide good guidance for a judge who is trying to interpret that
same text decades or centuries later. See, e . g ., Republican Party of Minn. v. White , 536 U.S.
765 , 785 (2002) (a “universal and long-established tradition of
prohibiting certain conduct creates a strong presumption that the
prohibition is constitutional” (quotation marks omitted)); United States v. Midwest Oil Co. , 236 U.S.
459 , 472–473 (1915) (“officers, law-makers and citizens
naturally adjust themselves to any long-continued action” of the
government “on the presumption that” unconstitutional “acts would
not have been allowed to be so often repeated as to crystallize
into a regular practice”); McPherson v. Blacker , 146 U.S.
1 , 27 (1892) (when constitutional text is vague,
“contemporaneous and subsequent practical construction are entitled
to the greatest weight”).[ 4 ]

															Importantly, the Framers themselves intended that
post-ratification history would shed light on the meaning of vague
constitutional text. They understood that some constitutional text
may be “more or less obscure and equivocal” such that questions
“daily occur in the course of practice.” The Federalist No. 37, at
228–229. Madison explained that the meaning of vague text would be
“liquidated and ascertained by a series of particular discussions
and adjudications.” Id ., at 229. In other words, Madison
articulated the Framers’ expectation and intent that
post-ratification history would be a proper and important tool to
help constitutional interpreters determine the meaning of vague
constitutional text.

															From early on, this Court followed Madison’s lead. In 1819, in
one of its most important decisions ever, the Court addressed the
scope of Article I’s Necessary and Proper Clause. McCulloch v. Maryland , 4 Wheat. 316 (1819). Writing for the Court,
Chief Justice Marshall invoked post-ratification history to
conclude that Congress’s authority to establish a national bank
could “scarcely be considered as an open question.” Id ., at
401. The constitutionality of the national bank had “been
recognised by many successive legislatures,” and an “exposition of
the constitution, deliberately established by legislative acts, on
the faith of which an immense property has been advanced, ought not
to be lightly disregarded.” Ibid. Marshall added: The
“respective powers of those who are equally the representatives of
the people, are to be adjusted; if not put at rest by the practice
of the government, ought to receive a considerable impression from
that practice.” Ibid .

															In relying on post-ratification history as a proper tool to
discern constitutional meaning, Madison and Marshall make for a
formidable duo. Moving from distant American history to more recent
times, one can add Justice Scalia. Throughout his consequential
30-year tenure on this Court, Justice Scalia repeatedly emphasized
that constitutional interpretation must take account of text,
pre-ratification history, and post-ratification history—the last of
which he often referred to as “tradition.” In his words, when
judges interpret vague or broadly worded constitutional text, the
“traditions of our people” are “paramount.” McDonald v. Chicago , 561 U.S.
742 , 792 (2010) (Scalia, J., concurring). Constitutional
interpretation should reflect “the principles adhered to, over
time, by the American people, rather than those favored by the
personal (and necessarily shifting) philosophical dispositions of a
majority of this Court.” Rutan v. Republican Party of
Ill. , 497 U.S.
62 , 96 (1990) (Scalia, J., dissenting).

															The U. S. Reports are well stocked with Scalia opinions
looking to post-ratification history and tradition.[ 5 ] In Heller , Justice Scalia wrote for
the Court that “a critical tool of constitutional interpretation”
is “the examination of a variety of legal and other sources to
determine the public understanding of a legal text in the
period after its enactment or ratification.” 554 U. S., at 605
(emphasis in original); see also ibid . (“We now address how
the Second Amendment was interpreted from immediately after its
ratification through the end of the 19th century”). Heller echoed years of earlier Scalia opinions. To take
one: “Where the meaning of a constitutional text (such as ‘the
freedom of speech’) is unclear, the widespread and long-accepted
practices of the American people are the best indication of what
fundamental beliefs it was intended to enshrine.” McIntyre v. Ohio Elections Comm’n , 514
U.S. 334 , 378 (1995) (Scalia, J., dissenting). Or another: A
“venerable and accepted tradition is not to be laid on the
examining table and scrutinized for its conformity to some abstract
principle” of “adjudication devised by this Court. To the contrary,
such traditions are themselves the stuff out of which the Court’s
principles are to be formed. They are, in these uncertain areas,
the very points of reference by which the legitimacy or
illegitimacy of other practices is to be figured out.” Rutan , 497 U. S., at 95–96 (Scalia, J., dissenting)
(emphasis in original).

															As leading actors and theorists in the earliest and latest
chapters of the American constitutional story, Madison, Marshall,
and Scalia made clear that courts should look to post-ratification
history as well as pre-ratification history to interpret vague
constitutional text.

															For more than two centuries—from the early 1800s to this
case—this Court has done just that. The Court has repeatedly
employed post-ratification history to determine the meaning of
vague constitutional text. Reliance on post-ratification history
“has shaped scores of Court cases spanning all domains of
constitutional law, every era of the nation’s history, and Justices
of every stripe.” S. Girgis, Living Traditionalism, 98 N. Y. U. L.
Rev. 1477, 1480 (2023); see, e.g. , Consumer Financial
Protection Bureau v. Community Financial Services Assn. of
America, Ltd. , 601 U.S. 416, 441–445 (2024) (Kagan, J.,
concurring); Trump v. Anderson , 601 U.S. 100, 113–115
(2024) ( per curiam ); Moore v. Harper , 600
U.S. 1, 22, 32–34 (2023); Kennedy v. Bremerton School Dist. , 597 U.S. 507, 535–536, 540–541, and n. 6
(2022); New York State Rifle Pistol Assn., Inc. v. Bruen , 597 U.S. 1, 35–37, 50–70 (2022); City of
Austin v. Reagan Nat. Advertising of Austin, LLC , 596
U.S. 61, 75 (2022); Houston Community College System v. Wilson , 595 U.S. 468, 474–477 (2022); PennEast Pipeline
Co. v. New Jersey , 594 U.S. 482, 494–497, 508 (2021); TransUnion LLC v. Ramirez , 594 U.S. 413, 424–425,
432–434 (2021); Torres v. Madrid , 592 U.S. 306, 314
(2021); Trump v. Mazars USA, LLP , 591 U.S. 848,
858–862 (2020); Chiafalo v. Washington , 591 U.S. 578,
592–597 (2020); American Legion v. American Humanist
Assn. , 588 U.S. 29, 58–66 (2019); Zivotofsky v. Kerry , 576 U.S.
1 , 15–17, 23–28 (2015); Town of Greece v. Galloway , 572 U.S.
565 , 575–579 (2014); District of Columbia v. Heller , 554 U.S.
570 , 605–619, 626–628 (2008); Crawford v. Washington , 541 U.S.
36 , 47–50 (2004); Apprendi v. New Jersey , 530 U.S.
466 , 481–483, and n. 10 (2000); Medina v. California , 505 U.S.
437 , 445–448 (1992); Holland v. Illinois , 493 U.S.
474 , 481–482, and n. 1 (1990); Marsh v. Chambers , 463 U.S.
783 , 786–792 (1983); Dames Moore v. Regan , 453 U.S.
654 , 678–682 (1981); Walz v. Tax Comm’n of City of
New York , 397 U.S.
664 , 676–680 (1970); Powell v. McCormack , 395
U.S. 486 , 522, 541–547 (1969); Youngstown Sheet Tube Co. v. Sawyer , 343 U.S.
579 , 610–613 (1952) (Frankfurter, J., concurring); United
States v. Curtiss-Wright Export Corp. , 299 U.S.
304 , 321–329 (1936); The Pocket Veto Case , 279 U.S.
655 , 688–691 (1929); Myers v. United States , 272 U.S.
52 , 155–158 (1926); United States v. Midwest Oil
Co. , 236 U.S.
459 , 469–475 (1915); Marshall Field Co. v. Clark , 143 U.S.
649 , 683–692 (1892); Murray’s Lessee v. Hoboken Land
Improvement Co. , 18 How. 272, 279–280 (1856); McCulloch v. Maryland , 4 Wheat. 316, 400–401 (1819).[ 6 ]

															C Precedent . With a Constitution and a Supreme Court that
are both more than two centuries old, this Court and other courts
are rarely interpreting a constitutional provision for the first
time. Rather, a substantial body of Supreme Court precedent already
exists for many provisions of the Constitution.

															Precedent is fundamental to day-to-day constitutional
decisionmaking in this Court and every American court. The
“judicial Power” established in Article III incorporates the
principle of stare decisis , both vertical and horizontal. As
Hamilton stated, to “avoid an arbitrary discretion in the courts,
it is indispensable that they should be bound down by strict rules
and precedents” that will “unavoidably swell to a very considerable
bulk” and “serve to define and point out their duty in every
particular case that comes before them.” The Federalist No. 78, at
471 (A. Hamilton).

															Courts must respect precedent, while at the same time
recognizing that precedent on occasion may appropriately be
overturned. See, e . g ., Brown , 347 U.S.
483 ; West Coast Hotel Co. v. Parrish , 300 U.S.
379 (1937); see also Ramos v. Louisiana , 590 U.S.
83, 115–132 (2020) (Kavanaugh, J., concurring in part). In light of
the significant amount of Supreme Court precedent that has built up
over time, this Court and other courts often decide constitutional
cases by reference to those extensive bodies of precedent.

															Even then, however, text and history still matter a great deal.
When determining how broadly or narrowly to read a precedent; when
determining whether to extend, limit, or narrow a precedent; or in
relatively infrequent cases, when determining whether to overrule a
precedent, a court often will consider how the precedent squares
with the Constitution’s text and history. Therefore, the text, as
well as pre-ratification and post-ratification history, may
appropriately function as a gravitational pull on the Court’s
interpretation of precedent. See Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 537 F.3d
667, 698 (CADC 2008) (Kavanaugh, J., dissenting) (“We should
resolve questions about the scope of those precedents in light of
and in the direction of the constitutional text and constitutional
history”).

															But the first stop in this Court’s constitutional decisionmaking
is the Court’s precedents—the accumulated wisdom of jurists from
Marshall and Story to Harlan and Taft; from Hughes and Black to
Jackson and White; from Rehnquist and O’Connor to Kennedy and
Scalia; and so on.

															III

															Some say that courts should determine exceptions to broadly
worded individual rights, including the Second Amendment, by
looking to policy. Uphold a law if it is a good idea; strike it
down if it is not. True, the proponents of a policy-based approach
to interpretation of broadly worded or vague constitutional text
usually do not say so explicitly (although some do). Rather, they
support a balancing approach variously known as means-end scrutiny,
heightened scrutiny, tiers of scrutiny, rational basis with bite,
or strict or intermediate or intermediate-plus or rigorous or
skeptical scrutiny. Whatever the label of the day, that balancing
approach is policy by another name. It requires judges to weigh the
benefits against the burdens of a law and to uphold the law as
constitutional if, in the judge’s view, the law is sufficiently
reasonable or important. See M. Barnes E. Chemerinsky, The Once and
Future Equal Protection Doctrine?, 43 Conn. L. Rev. 1059, 1080
(2011) (“The levels of scrutiny are essentially balancing
tests”).

															To begin, as I have explained, that kind of balancing approach
to constitutional interpretation departs from what Framers such as
Madison stated, what jurists such as Marshall and Scalia did, what
judges as umpires should strive to do, and what this Court has
actually done across the constitutional landscape for the last two
centuries.

															The balancing tests (heightened scrutiny and the like) are a
relatively modern judicial innovation in constitutional
decisionmaking. The “tiers of scrutiny have no basis in the text or
original meaning of the Constitution.” J. Alicea J. Ohlendorf,
Against the Tiers of Constitutional Scrutiny, National Affairs 72,
73 (2019). And before the late 1950s, “what we would now call
strict judicial scrutiny did not exist.” R. Fallon, The Nature of
Constitutional Rights: The Invention and Logic of Strict Judicial
Scrutiny 30 (2019).

															The Court “appears to have adopted” heightened-scrutiny tests
“by accident” in the 1950s and 1960s in a series of Communist
speech cases, “rather than as the result of a considered judgment.” Simon Schuster, Inc. v. Members of N. Y. State Crime
Victims Bd. , 502 U.S.
105 , 125 (1991) (Kennedy, J., concurring in judgment). The
Court has employed balancing only in discrete areas of
constitutional law—and even in those cases, history still tends to
play a far larger role than overt judicial policymaking.[ 7 ]

															To be clear, I am not suggesting that the Court overrule cases
where the Court has applied those heightened-scrutiny tests. But I
am challenging the notion that those tests are the ordinary
approach to constitutional interpretation. And I am arguing against
extending those tests to new areas, including the Second
Amendment.

															One major problem with using a balancing approach to determine
exceptions to constitutional rights is that it requires highly
subjective judicial evaluations of how important a law is—at least
unless the balancing test itself incorporates history, in which
case judges might as well just continue to rely on history
directly.

															The subjective balancing approach forces judges to act more like
legislators who decide what the law should be, rather than judges
who “say what the law is.” Marbury v. Madison , 1
Cranch 137, 177 (1803). That is because the balancing approach
requires judges to weigh the benefits of a law against its
burdens—a value-laden and political task that is usually reserved
for the political branches. And that power in essence vests judges
with “a roving commission to second-guess” legislators and
administrative officers “concerning what is best for the country.”
W. Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev.
693, 698 (1976). Stated otherwise, when a court “does not have a
solid textual anchor or an established social norm from which to
derive the general rule, its pronouncement appears uncomfortably
like legislation.” A. Scalia, The Rule of Law as a Law of Rules, 56
U. Chi. L. Rev. 1175, 1185 (1989).

															Moreover, the balancing approach is ill-defined. Some judges
will apply heightened scrutiny with a presumption in favor of
deference to the legislature. Other judges will apply heightened
scrutiny with a presumption in favor of the individual right in
question. Because it is unmoored, the balancing approach presents
the real “danger” that “judges will mistake their own predilections
for the law.” A. Scalia, Originalism: The Lesser Evil, 57 U. Cin.
L. Rev. 849, 863 (1989). Under the balancing approach, to use
Justice Scalia’s characteristically vivid description, if “We The
Court conclude that They The People’s answers to a problem” are
unwise, “we are free to intervene,” but if we “think the States may
be on to something, we can loosen the leash.” McDonald v. Chicago , 561 U.S.
742 , 803 (2010) (concurring opinion) (quotation marks
omitted).

															The balancing approach can be antithetical to the principle that
judges must act like umpires. It turns judges into players. Justice
Black once protested that the Court should not balance away bedrock
free speech protections for the perceived policy needs of the
moment. He argued that “the balancing approach” “disregards all of
the unique features of our Constitution” by giving “the Court,
along with Congress, a greater power, that of overriding the plain
commands of the Bill of Rights on a finding of weighty public
interest.” H. Black, The Bill of Rights, 35 N. Y. U. L. Rev. 865,
878–879 (1960). Like Justice Black, the Court in Heller cautioned that a “constitutional guarantee subject to future
judges’ assessments of its usefulness is no constitutional
guarantee at all.” 554 U.S.
570 , 634 (2008).

															Some respond that history can be difficult to decipher. It is
true that using history to interpret vague text can require
“nuanced judgments,” McDonald , 561 U. S., at 803–804
(Scalia, J., concurring), and is “sometimes inconclusive,” Scalia,
Originalism: The Lesser Evil, 57 U. Cin. L. Rev., at 864. But
at a minimum, history tends to narrow the range of possible
meanings that may be ascribed to vague constitutional language. A
history-based methodology supplies direction and imposes a neutral
and democratically infused constraint on judicial
decisionmaking.

															The historical approach is not perfect. But “the question to be
decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial
Constitution-writing; but whether it is the best means
available in an imperfect world.” McDonald , 561
U. S., at 804 (Scalia, J., concurring) (emphasis in original).
And the historical approach is superior to judicial policymaking.
The historical approach “depends upon a body of evidence
susceptible of reasoned analysis rather than a variety of vague
ethico-political First Principles whose combined conclusion can be
found to point in any direction the judges favor.” Ibid .
Moreover, the historical approach “intrudes less upon the
democratic process because the rights it acknowledges are those
established by a constitutional history formed by democratic
decisions; and the rights it fails to acknowledge are left to be
democratically adopted or rejected by the people.” Id. , at
805.

															IV

															This Court’s Second Amendment jurisprudence has carefully
followed and reinforced the Court’s longstanding approach to
constitutional interpretation—relying on text, pre-ratification and
post-ratification history, and precedent.

															In Heller , the Court began with the baseline point that
the Second Amendment textually guarantees an individual right. The
Court then explained that the Second Amendment right is, of course,
“not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose” and is subject to “important”
limitations. 554
U.S. 570 , 626–627 (2008).

															Although Heller declined to “undertake an exhaustive
historical analysis,” it recognized a few categories of traditional
exceptions to the right. Id ., at 626. For example, Heller indicated that: (i) “prohibitions on carrying
concealed weapons were lawful”; (ii) the Second Amendment attaches
only to weapons “in common use” because “that limitation is fairly
supported by the historical tradition of prohibiting the carrying
of dangerous and unusual weapons”; and (iii) “longstanding
prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of
arms” are presumptively constitutional. Id ., at 626–627
(quotation marks omitted).

															In McDonald , the Court held that the Second Amendment was
incorporated against the States. In so holding, the Court
reiterated the presumed constitutionality of the “longstanding
regulatory measures” identified in Heller . 561 U.S.
742 , 786 (2010) (plurality opinion).

															Then, in Bruen , the Court repeated that the “Nation’s
historical tradition of firearm regulation” guides the
constitutional analysis of gun regulations and exceptions to the
right to bear arms. 597 U.S. 1, 17 (2022); see id ., at 79–81
(Kavanaugh, J., concurring).

															This Court’s approach in those three recent Second Amendment
cases—and in the Court’s opinion today—is entirely consistent with
the Court’s longstanding reliance on history and precedent to
determine the meaning of vague constitutional text. Heller rested on “constitutional text and history,” ante , at 6
(quotation marks omitted), and laid the foundation for McDonald and then Bruen .

															In today’s case, the Court carefully builds on Heller , McDonald , and Bruen . The Court applies the historical
test that those precedents have set forth—namely, “whether the new
law is relevantly similar to laws that our tradition is understood
to permit.” Ante , at 7 (quotation marks omitted). The Court
examines “our historical tradition of firearm regulation,” ante , at 6 (quotation marks omitted), and correctly holds
that America’s “tradition of firearm regulation allows the
Government to disarm individuals who present a credible threat to
the physical safety of others,” ante , at 16. The law before
us “fits neatly within the tradition the surety and going armed
laws represent.” Ante , at 13–14.

															As the Court’s decision today notes, Second Amendment
jurisprudence is still in the relatively early innings, unlike the
First, Fourth, and Sixth Amendments, for example. That is because
the Court did not have occasion to recognize the Second Amendment’s
individual right until recently. See generally Heller v. District of Columbia , 670 F.3d 1244, 1269–1296 (CADC 2011)
(Kavanaugh, J., dissenting). Deciding constitutional cases in a
still-developing area of this Court’s jurisprudence can sometimes
be difficult. But that is not a permission slip for a judge to let
constitutional analysis morph into policy preferences under the
guise of a balancing test that churns out the judge’s own policy
beliefs.

															*  *  *

															As exemplified by Heller , McDonald , Bruen ,
and the Court’s opinion today, constitutional interpretation
properly takes account of text, pre-ratification and
post-ratification history, and precedent. Those are the tools of
the trade for an American judge interpreting the American
Constitution. Of course, difficult subsidiary questions can arise
about how to apply those tools, both generally and in particular
cases. And in some cases, text, history, and precedent may point in
somewhat different directions. In law as in life, nothing is
perfect. But in Second Amendment cases as in other constitutional
cases, text, history, and precedent must remain paramount. Notes 1 There are two ways to
frame this point—either (i) determining the exceptions to a
constitutional right or (ii) determining the affirmative scope or
contours of that constitutional right. Either way, the analysis is
the same—does the constitutional provision, as originally
understood, permit the challenged law? This opinion uses the term
“exceptions,” which underscores that the constitutional baseline is
protection of the textually enumerated right. See Federal
Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U.S.
449 , 482 (2007) (opinion of Roberts, C. J.) (stating in a
First Amendment case that “it is worth recalling the language we
are applying”). 2 The historical approach
applies when the text is vague. But the text of the Constitution
always controls. So history contrary to clear text is not to be
followed. See, e.g. , INS v. Chadha , 462 U.S.
919 , 945–959 (1983); Powell v. McCormack , 395 U.S.
486 , 546–547 (1969); Brown v. Board of Education , 347 U.S.
483 , 490–495, and n. 5 (1954); cf. Sedition Act of 1798, ch.
74, 1 Stat. 596. In some cases, there may be debate about whether
the relevant text is sufficiently clear to override contrary
historical practices. See, e.g. , NLRB v. Noel Canning , 573
U.S. 513 , 613 (2014) (Scalia, J., concurring in judgment)
(“What the majority needs to sustain its judgment is an ambiguous
text and a clear historical practice. What it has is a clear text
and an at-best-ambiguous historical practice”). The basic principle
remains: Text controls over contrary historical
practices. 3 To be sure, as the
Court’s cases reveal, pre-ratification English law and practices
may supply background for some constitutional provisions. But the
Constitution, including the Bill of Rights, did not purport to take
English law or history wholesale and silently download it into the
U. S. Constitution. See, e.g. , Harmelin v. Michigan , 501
U.S. 957 , 975 (1991) (opinion of Scalia, J.) (“Unless one
accepts the notion of a blind incorporation, however, the ultimate
question is not what ‘cruell and unusuall punishments’ meant in the
[English] Declaration of Rights, but what its meaning was to the
Americans who adopted the Eighth Amendment”). Therefore,
reflexively resorting to English law or history without careful
analysis can sometimes be problematic because America had fought a
war—and would soon fight another in 1812—to free itself from
British law and practices and rid itself of tyrannical British
rule. See The Federalist No. 45, p. 289 (C. Rossiter ed. 1961) (J.
Madison) (“Was, then, the American Revolution effected, was the
American Confederacy formed, was the precious blood of thousands
spilt, and the hard-earned substance of millions lavished, not that
the people of America should enjoy peace, liberty, and safety,” but
that they should continue to be subject to the “impious doctrine in
the old world, that the people were made for kings, not kings for
the people”?). 4 Post-ratification history
is sometimes also referred to as tradition, liquidation, or
historical gloss. Those concepts are probably not identical in all
respects. In any event, in applying those concepts in
constitutional interpretation, some important questions can arise,
such as: (i) the level of generality at which to define a
historical practice; (ii) how widespread a historical
practice must have been; (iii) how long ago it must have
started; and (iv) how long it must have endured. Although this
Court’s constitutional precedents routinely rely on
post-ratification history, those precedents do not supply a
one-size-fits-all answer to those various methodological questions.
See, e . g ., Noel Canning , 573 U. S., at
522–556; Youngstown Sheet Tube Co. v. Sawyer , 343 U.S.
579 , 610–611 (1952) (Frankfurter, J., concurring). And I will
not attempt to answer all of those questions here. Respected
scholars are continuing to undertake careful analysis. See
generally J. Alicea, Practice-Based Constitutional Theories, 133
Yale L. J. 568 (2023); R. Barnett L. Solum, Originalism After Dobbs , Bruen , and Kennedy : The Role of History
and Tradition, 118 Nw. U. L. Rev. 433 (2023); M. DeGirolami,
Traditionalism Rising, 24 J. Contemp. Legal Issues 9 (2023); S.
Girgis, Living Traditionalism, 98 N. Y. U. L. Rev. 1477 (2023); W.
Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019); C.
Bradley, Doing Gloss, 84 U. Chi. L. Rev. 59 (2017); C. Bradley
T. Morrison, Historical Gloss and the Separation of Powers, 126
Harv. L. Rev. 411 (2012); A. Amar, America’s Constitution (2005);
C. Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L.
Rev. 519 (2003); M. McConnell, Tradition and Constitutionalism
Before the Constitution, 1998 U. Ill. L. Rev. 173. 5 Justice Scalia’s opinions
“made extensive use of post-ratification history,” and “his
assessment of post-ratification history” in those opinions extended
“far beyond the time of enactment.” M. Ramsey, Beyond the Text:
Justice Scalia’s Originalism in Practice, 92 Notre Dame
L. Rev. 1945, 1957, 1960 (2017). Justice Scalia did not
necessarily “use[ ] tradition as an independent source of
interpretive authority; rather, he had a very broad view of what
traditions might be indicative of original meaning.” Id ., at
1962, n. 79; see, e . g ., NLRB v. Noel
Canning , 573 U.S.
513 , 584–593, 602–615 (2014) (Scalia, J., concurring in
judgment); District of Columbia v. Heller , 554 U.S.
570 , 605–619, 626–628 (2008); McCreary County v. American Civil Liberties Union of Ky. , 545 U.S.
844 , 886–900 (2005) (Scalia, J., dissenting); Hamdi v. Rumsfeld , 542 U.S.
507 , 558–563 (2004) (Scalia, J., dissenting); Crawford v. Washington , 541 U.S.
36 , 47–50 (2004); Mitchell v. United States , 526 U.S.
314 , 334–336, and n. 1 (1999) (Scalia, J., dissenting); Department of Commerce v. United States House of
Representatives , 525 U.S.
316 , 347–349 (1999) (Scalia, J., concurring in part); Clinton v. City of New York , 524
U.S. 417 , 465–469 (1998) (Scalia, J., concurring in part and
dissenting in part); Printz v. United States , 521 U.S.
898 , 905–918 (1997); United States v. Gaudin , 515 U.S.
506 , 515–519 (1995); McIntyre v. Ohio Elections
Comm’n , 514 U.S.
334 , 375–378, and nn. 1–2 (1995) (Scalia, J., dissenting); Plaut v. Spendthrift Farm, Inc. , 514 U.S.
211 , 223–225 (1995); Board of Ed. of Kiryas Joel Village
School Dist. v. Grumet , 512 U.S.
687 , 732, 744 (1994) (Scalia, J., dissenting); Herrera v. Collins , 506 U.S.
390 , 427–428 (1993) (Scalia, J., concurring); Richmond v. Lewis , 506 U.S.
40 , 54 (1992) (Scalia, J., dissenting); Harmelin v. Michigan , 501 U.S.
957 , 979–985 (1991) (opinion of Scalia, J.); Rutan v. Republican Party of Ill. , 497 U.S.
62 , 95–97 (1990) (Scalia, J., dissenting); McKoy v. North Carolina , 494 U.S.
433 , 466, 471 (1990) (Scalia, J., dissenting); Holland v. Illinois , 493 U.S.
474 , 481–482, and n. 1 (1990). 6 The Court has similarly
relied on history when deciding cases involving textually
unenumerated rights under the Due Process Clause or the Privileges
or Immunities Clause. In those contexts, the baseline is
180-degrees different: The text supplies no express protection of
any asserted substantive right. The Court has recognized exceptions
to that textual baseline, but in doing so has regularly observed
that the Fourteenth Amendment “specially protects those fundamental
rights and liberties which are, objectively, deeply rooted in this
Nation’s history and tradition.” Washington v. Glucksberg , 521 U.S.
702 , 720–721 (1997) (quotation marks omitted); see, e . g ., Pierce v. Society of Sisters , 268 U.S.
510 , 534–535 (1925) (“liberty of parents and guardians to
direct the upbringing and education of children under their
control”). 7 The Court has articulated
a heightened-scrutiny test in some pockets of free-speech
jurisprudence. But even when invoking heightened scrutiny in that
context, the Court still often relies directly on history. See, e.g. , City of Austin v. Reagan Nat. Advertising of
Austin, LLC , 596 U.S. 61, 75 (2022) (a city’s regulation of
solely off-premises billboards was within “the Nation’s history of
regulating off-premises signs” as “federal, state, and local
jurisdictions have repeatedly relied upon on-/off-premises
distinctions” “for the last 50-plus years”); Perry Ed. Assn. v. Perry Local Educators’ Assn. , 460 U.S.
37 , 45–46 (1983) (“In places which by long tradition” “have
been devoted to assembly and debate, the rights of the State to
limit expressive activity are sharply circumscribed”). The Court
has also used heightened scrutiny in certain equal protection
cases. As discussed above, the Equal Protection Clause rejected the
history of racially discriminatory laws and practices. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–915

															_________________

															UNITED STATES, PETITIONER v. ZACKEY RAHIMI

															on writ of certiorari to the united states court of appeals for
the fifth circuit

															[June 21, 2024]

															Justice Jackson, concurring.

															This case tests our Second Amendment jurisprudence as shaped in
particular by New York State Rifle Pistol Assn., Inc. v. Bruen , 597 U.S. 1 (2022). I disagree with the methodology of
that decision; I would have joined the dissent had I been a Member
of the Court at that time. See generally id. , at 83–133
(Breyer, J., dissenting). But Bruen is now binding law.
Today’s decision fairly applies that precedent, so I join the
opinion in full.

															I write separately because we now have two years’ worth of
post- Bruen cases under our belts, and the experiences of
courts applying its history-and-tradition test should bear on our
assessment of the workability of that legal standard. This case
highlights the apparent difficulty faced by judges on the ground.
Make no mistake: Today’s effort to clear up “misunderst[andings],” ante, at 7, is a tacit admission that lower courts are
struggling. In my view, the blame may lie with us, not with
them.

															I

															The Court today expounds on the history-and-tradition inquiry
that Bruen requires. Ante , at 7–8. We emphasize that
the Second Amendment is “not . . . a law trapped in
amber.” Ante, at 7. It “permits more than just those
regulations identical to ones that could be found in 1791”; indeed,
“a challenged regulation [that] does not precisely match its
historical precursors . . . ‘still may be analogous
enough to pass constitutional muster.’ ” Ibid . (quoting Bruen , 597 U. S., at 30). Gun regulations need only
“comport with the principles underlying the Second Amendment.” Ante, at 7–8. These clarifying efforts are welcome, given
the many questions Bruen left unanswered.

															When this Court adopts a new legal standard, as we did in Bruen , we do not do so in a vacuum. The tests we establish
bind lower court judges, who then apply those legal standards to
the cases before them. In my view, as this Court thinks of, and
speaks about, history’s relevance to the interpretation of
constitutional provisions, we should be mindful that our common-law
tradition of promoting clarity and consistency in the application
of our precedent also has a lengthy pedigree. So when courts
signal they are having trouble with one of our standards, we should
pay attention. Cf. Garcia v. San Antonio Metropolitan
Transit Authority , 469 U.S.
528 , 538–539 (1985).

															The message that lower courts are sending now in Second
Amendment cases could not be clearer. They say there is little
method to Bruen ’s madness.[ 1 ] It isn’t just that Bruen ’s history-and-tradition
test is burdensome (though that is no small thing to courts with
heavier caseloads and fewer resources than we have). The more
worrisome concern is that lower courts appear to be diverging in
both approach and outcome as they struggle to conduct the inquiry Bruen requires of them. Scholars report that lower courts
applying Bruen ’s approach have been unable to produce
“consistent, principled results,” Brief for Second Amendment Law
Scholars as Amici Curiae 4, and, in fact, they “have come to
conflicting conclusions on virtually every consequential Second
Amendment issue to come before them,” id. , at 4–5; see also id ., at 5–6 (collecting examples). Given this, it appears
indisputable that, after Bruen , “confusion plagu[es] the
lower courts.” Id ., at 6.

															II

															This discord is striking when compared to the relative harmony
that had developed prior to Bruen . To be sure, our decision
in District of Columbia v. Heller , 554 U.S.
570 (2008), which first recognized an individual right to keep
and bear arms for self-defense, see id ., at 628, was
disruptive in its own way. After all, before Heller , “[t]he
meaning of the Second Amendment ha[d] been considered settled by
courts and legislatures for over two centuries,” and “judges and
legislators . . . properly believed . . . that
the Second Amendment did not reach possession of firearms for
purely private activities.” Id ., at 676, n. 38
(Stevens, J., dissenting). Nonetheless, after Heller , lower
courts took up the necessary work of reviewing burdens on this
newly unearthed right. By the time this Court decided Bruen ,
every court of appeals evaluating whether a firearm regulation was
consistent with the Second Amendment did so using a two-step
framework that incorporated means-end scrutiny. See Bruen ,
597 U. S., at 103 (Breyer, J., dissenting).

															Rejecting that “two-step approach” as having “one step too
many,” id ., at 19, the Bruen majority subbed in
another two-step evaluation. Courts must, first, determine whether
“the Second Amendment’s plain text covers an individual’s conduct.” Id ., at 24. If it does, “[t]he government must then justify
its regulation by demonstrating that it is consistent with the
Nation’s historical tradition of firearm regulation.” Ibid. No one seems to question that “[h]istory has a role to play in
Second Amendment analysis.” Ante, at 4 (Sotomayor, J.,
concurring). But, per Bruen , courts evaluating a Second
Amendment challenge must consider history to the exclusion of
all else . This means legislators must locate and produce—and
courts must sift through—troves of centuries-old documentation
looking for supportive historical evidence.[ 2 ]

															This very case provides a prime example of the pitfalls of Bruen ’s approach. Having been told that a key marker of a
constitutional gun regulation is “a well-established and
representative historical analogue,” Bruen , 597 U. S.,
at 30 (emphasis deleted), Rahimi argued below that “there is little
or no historical evidence suggesting disarmament for those who
committed domestic violence; and there is certainly no tradition of
disarming people subject to a no-contact order related to domestic
violence.” Supp. Brief for Appellant in No. 21–11001 (CA5),
p. 15 (emphasis deleted). The Government then proffered what
it maintained were sufficient historical analogues to 18
U. S. C. §922(g)(8), including surety and going armed
laws. Supp. Brief for Appellee in No. 21–11001 (CA5), pp. 23,
n. 2, 27–31. But the Fifth Circuit concluded that the federal
statute was unconstitutional because the Government’s analogues
were not “ ‘relevantly similar.’ ” 61 F. 4th 443, 460–461
(2023).

															Neither the parties nor the Fifth Circuit had the benefit of
today’s decision, in which we hold that the Government had in fact
offered “ample evidence that the Second Amendment permits the
disarmament of individuals who pose a credible threat to the
physical safety of others.” Ante, at 8. But even setting
aside whether the historical examples the Government found were
sufficiently analogous, just canvassing the universe of historical
records and gauging the sufficiency of such evidence is an
exceedingly difficult task.[ 3 ]
Consistent analyses and outcomes are likely to remain elusive
because whether Bruen’ s test is satisfied in a particular
case seems to depend on the suitability of whatever historical
sources the parties can manage to cobble together, as well as the
level of generality at which a court evaluates those
sources—neither of which we have as yet adequately clarified.

															And the unresolved questions hardly end there. Who is protected
by the Second Amendment, from a historical perspective? To what
conduct does the Second Amendment’s plain text apply? To what
historical era (or eras) should courts look to divine a historical
tradition of gun regulation? How many analogues add up to a
tradition? Must there be evidence that those analogues were
enforced or subject to judicial scrutiny? How much support can
nonstatutory sources lend? I could go on—as others have. See, e . g ., United States v. Daniels , 77 F.
4th 337, 358–360 (CA5 2023) (Higginson, J., concurring) (providing
a similarly nonexhaustive list). But I won’t.

															III

															Maybe time will resolve these and other key questions. Maybe
appellate courts, including ours, will find a way to “[b]rin[g]
discipline to the increasingly erratic and unprincipled body of law
that is emerging after Bruen .” J. Blocher E. Ruben,
Originalism-by-Analogy and Second Amendment Adjudication, 133 Yale
L. J. 99, 174 (2023). Indeed, “[m]any constitutional standards
involve undoubted gray areas,” and “it normally might be fair to
venture the assumption that case-by-case development [will] lead to
a workable standard.” Garcia , 469 U. S., at 540
(internal quotation marks and alteration omitted). By underscoring
that gun regulations need only “comport with the principles underlying the Second Amendment,” ante, at 7–8 (emphasis
added), today’s opinion inches that ball forward.

															But it is becoming increasingly obvious that there are miles to
go.[ 4 ] Meanwhile, the Rule of
Law suffers. That ideal—key to our democracy—thrives on legal
standards that foster stability, facilitate consistency, and
promote predictability. So far, Bruen ’s history-focused test
ticks none of those boxes.

															*  *  *

															I concur in today’s decision applying Bruen . But, in my
view, the Court should also be mindful of how its legal standards
are actually playing out in real life. We must remember that
legislatures, seeking to implement meaningful reform for their
constituents while simultaneously respecting the Second Amendment,
are hobbled without a clear, workable test for assessing the
constitutionality of their proposals. See Tr. of Oral Arg. 54–57;
cf. Bruen , 597 U. S., at 90–91 (Breyer, J.,
dissenting). And courts, which are currently at sea when it comes
to evaluating firearms legislation, need a solid anchor for
grounding their constitutional pronouncements. The public, too,
deserves clarity when this Court interprets our Constitution. Notes 1 See, e.g ., Barris v. Stroud Twp. , ___ Pa. ___, ___, 310 A.3d
175, 190 (2024) (“[M]ore guidance in this challenging and
ever-shifting area of the law is welcome”); State v. Wilson , 154 Haw. 8, 21, 543 P.3d 440, 453 (2024) (“[B]y
turning the test into history and nothing else, [ Bruen ]
dismantles workable methods to interpret firearms laws”); United
States v. Dubois , 94 F. 4th 1284, 1293 (CA11 2024) (“We
require clearer instruction from the Supreme Court before we may
reconsider the constitutionality of [18 U. S. C.
§]922(g)(1)”); United States v. Daniels , 77 F. 4th
337, 358 (CA5 2023) (Higginson, J., concurring) (“[C]ourts,
operating in good faith, are struggling at every stage of the Bruen inquiry. Those struggles encompass numerous, often
dispositive, difficult questions”); Atkinson v. Garland , 70 F. 4th 1018, 1024 (CA7 2023) (“[T]he historical
analysis required by Bruen will be difficult and no doubt
yield some measure of indeterminancy”); id ., at 1036 (Wood,
J., dissenting) (“As other courts have begun to apply Bruen ,
[the] need for further research and further guidance has become
clear”); Gonyo v. D. S ., 210
N. Y. S. 3d 612, 615, 2024 N. Y. Slip Op. 24018
(Jan. 19, 2024) (“Interpretations and applications of Bruen by lower courts have been widely divergent and thus, very difficult
to apply as precedent”); United States v. Sing-Ledezma , ___ F. Supp. 3d ___, ___, 2023 WL 8587869, *3
(WD Tex. Dec. 11, 2023) (“[T]he Court pauses to join the choir of
lower courts urging the Supreme Court to resolve the many
unanswered questions left in Bruen ’s wake”); United
States v. Bartucci , 658 F. Supp. 3d 794, 800 (ED Cal.
2023) (“[T]he unique test the Supreme Court announced in Bruen does not provide lower courts with clear guidance as
to how analogous modern laws must be to founding-era gun laws. In
the short time post- Bruen , this has caused disarray among
the lower courts”); United States v. Bullock , 679
F. Supp. 3d 501, 534 (SD Miss. 2023) (raising
methodological questions “in hopes that future judges and justices
can answer them with enough detail to enable trial courts to
perform their duties”); Fraser v. Bureau of Alcohol,
Tobacco , Firearms and Explosives , 672 F. Supp. 3d
118, 137, n. 20 (ED Va. 2023) (“The Court is staffed by
lawyers who are neither trained nor experienced in making the
nuanced historical analyses called for by Bruen .
. . . The analytical construct specified by Bruen is thus a difficult one for non-historians”); United States v. Jackson , 661 F. Supp. 3d 392, 406 (Md. 2023) (noting
“the challenges created by Bruen’s assignment”); United
States v. Love , 647 F. Supp. 3d 664, 670 (ND Ind.
2022) (“By . . . announcing an inconsistent and amorphous
standard, the Supreme Court has created mountains of work for
district courts that must now deal with Bruen -related
arguments in nearly every criminal case in which a firearm is
found”). 2 It is not clear what
qualifies policymakers or their lawyers (who do not ordinarily have
the specialized education, knowledge, or training of professional
historians) to engage in this kind of assessment. And dutiful
legislators are not the only stakeholders who are far outside their
depth: Bruen also conscripts parties and judges into service
as amateur historians, casting about for similar historical
circumstances. 3 The mad scramble for
historical records that Bruen requires also suggests that
only those solutions that States implemented in the distant past
comport with the Constitution. That premise is questionable
because, given the breadth of some of the Constitution’s
provisions, it is likely that the Founders understood that new
solutions would be needed over time, even for traditional problems,
and that the principles they were adopting would allow for such
flexibility. See District of Columbia v. Heller , 554 U.S.
570 , 722 (2008) (Breyer, J., dissenting) (expressing doubt that
the Framers “intended future generations to ignore [modern-day]
matters”). It stifles both helpful innovation and democratic
engagement to read the Constitution to prevent advancement in this
way. In any event, what we see now is that Bruen ’s
history-and-tradition test is not only limiting legislative
solutions, it also appears to be creating chaos. 4 Extremely pertinent
inquiries relevant to consistent application of Bruen ’s
standard await resolution. For example, in Bruen we
acknowledged the existence of “an ongoing scholarly debate on
whether courts should primarily rely on the prevailing
understanding of an individual right when the Fourteenth Amendment
was ratified in 1868 when defining its scope (as well as the scope
of the right against the Federal Government).” 597 U. S., at
37. We saw no need to address the issue in Bruen . Id ., at 38. We similarly decline to resolve that dispute
today. Ante , at 8, n. 1. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–915

															_________________

															UNITED STATES, PETITIONER v. ZACKEY RAHIMI

															on writ of certiorari to the united states court of appeals for
the fifth circuit

															[June 21, 2024]

															Justice Barrett, concurring.

															Despite its unqualified text, the Second Amendment is not
absolute. It codified a pre-existing right, and pre-existing limits
on that right are part and parcel of it. District of
Columbia v. Heller , 554 U.S.
570 , 595, 627 (2008). Those limits define the scope of “the
right to bear arms” as it was originally understood; to identify
them, courts must examine our “historical tradition of firearm
regulation.” New York State Rifle Pistol Assn., Inc. v. Bruen , 597 U.S. 1, 17, 19 (2022). That evidence marks where
the right stops and the State’s authority to regulate begins. A
regulation is constitutional only if the government affirmatively
proves that it is “consistent with the Second Amendment’s text and
historical understanding.” Id ., at 26.

															Because the Court has taken an originalist approach to the
Second Amendment, it is worth pausing to identify the basic
premises of originalism. The theory is built on two core
principles: that the meaning of constitutional text is fixed at the
time of its ratification and that the “discoverable historical
meaning . . . has legal significance and is authoritative
in most circumstances.” K. Whittington, Originalism: A Critical
Introduction, 82 Ford. L. Rev. 375, 378 (2013) (Whittington).
Ratification is a democratic act that renders constitutional text
part of our fundamental law, see Arts. V, VII, and that text
“remains law until lawfully altered,” S. Sachs, Originalism:
Standard and Procedure, 135 Harv. L. Rev. 777, 782 (2022). So
for an originalist, the history that matters most is the history
surrounding the ratification of the text; that backdrop illuminates
the meaning of the enacted law. History (or tradition) that long
postdates ratification does not serve that function. To be sure,
postenactment history can be an important tool. For example, it can
“reinforce our understanding of the Constitution’s original
meaning”; “liquidate ambiguous constitutional provisions”; provide
persuasive evidence of the original meaning; and, if stare
decisis applies, control the outcome. See Vidal v. Elster , 602 U. S. ___, ___–___ (2024) (Barrett, J.,
concurring in part) (slip op., at 13–14). But generally speaking,
the use of postenactment history requires some justification other
than originalism simpliciter.

															In Bruen , the Court took history beyond the founding era,
considering gun regulations that spanned the 19th century. 597
U. S., at 50–70. I expressed reservations about the scope of
that inquiry but concluded that the timing question did not matter
to Bruen ’s holding. Id ., at 81–83 (concurring
opinion). It bears emphasis, however, that my questions were about
the time period relevant to discerning the Second Amendment’s
original meaning—for instance, what is the post-1791 cutoff for
discerning how the Second Amendment was originally understood? Id ., at 82 (“How long after ratification may subsequent
practice illuminate original public meaning?”). My doubts were not about whether “tradition,” standing alone, is
dispositive. Id ., at 83 (“[T]oday’s decision should not be
understood to endorse freewheeling reliance on historical practice
from the mid-to-late 19th century to establish the original meaning
of the Bill of Rights”). As I have explained elsewhere, evidence of
“tradition” unmoored from original meaning is not binding law. Vidal , 602 U. S., at ___–___ (Barrett, J., concurring
in part) (slip op., at 13–15). And scattered cases or regulations
pulled from history may have little bearing on the meaning of the
text. Samia v. United States , 599 U.S. 635, 656–657
(2023) (Barrett, J., concurring in part and concurring in
judgment).

															“Original history”— i.e., the generally dispositive
kind—plays two roles in the Second Amendment context. It elucidates
how contemporaries understood the text—for example, the meaning of
the phrase “bear Arms.” See Heller , 554 U. S., at
582–592. It also plays the more complicated role of determining the
scope of the pre-existing right that the people enshrined in our
fundamental law.[ 1 ]* In
Rahimi’s case, the Court uses history in this latter way. Call this
“original contours” history: It looks at historical gun regulations
to identify the contours of the right.

															Courts have struggled with this use of history in the wake of Bruen . One difficulty is a level of generality problem: Must
the government produce a founding-era relative of the challenged
regulation—if not a twin, a cousin? Or do founding-era gun
regulations yield concrete principles that mark the borders of the
right?

															Many courts, including the Fifth Circuit, have understood Bruen to require the former, narrower approach. But Bruen emphasized that “analogical reasoning” is not a
“regulatory straightjacket.” 597 U. S., at 30. To be consistent with historical limits, a challenged regulation
need not be an updated model of a historical counterpart. Besides,
imposing a test that demands overly specific analogues has serious
problems. To name two: It forces 21st-century regulations to follow
late-18th-century policy choices, giving us “a law trapped in
amber.” Ante , at 7. And it assumes that founding-era
legislatures maximally exercised their power to regulate, thereby
adopting a “use it or lose it” view of legislative authority. Such
assumptions are flawed, and originalism does not require them.

															“Analogical reasoning” under Bruen demands a wider lens:
Historical regulations reveal a principle, not a mold. See, e . g ., 597 U. S., at 28–29 (explaining that the
Amendment does not apply only to the catalogue of arms that existed
in the 18th century, but rather to all weapons satisfying the
“ general definition ” of “bearable arms” (emphasis added)); id ., at 30–31 (discussing the “ ‘sensitive
places’ ” principle that limits the right to public carry);
cf. Vidal , 602 U. S., at ___–___ (Barrett, J.,
concurring in part) (slip op., at 7–9); Whittington 386 (“The
insight to be gleaned is not the authoritative status of the
expected application, but the apparent rule at play given that such
an application is expected to follow from it”). To be sure, a court
must be careful not to read a principle at such a high level of
generality that it waters down the right. Pulling principle from
precedent, whether case law or history, is a standard feature of
legal reasoning, and reasonable minds sometimes disagree about how
broad or narrow the controlling principle should be.

															Here, though, the Court settles on just the right level of
generality: “Since the founding, our Nation’s firearm laws have
included provisions preventing individuals who threaten physical
harm to others from misusing firearms.” Ante , at 5; see also Kanter v. Barr , 919 F.3d 437, 451, 464–465 (CA7 2019)
(Barrett, J., dissenting) (“History is consistent with common
sense: it demonstrates that legislatures have the power to prohibit
dangerous people from possessing guns”). Section 922(g)(8)(C)(i)
fits well within that principle; therefore, Rahimi’s facial
challenge fails. Harder level-of-generality problems can await
another day. Notes 1 *To my mind, this use of
history walks a fine line between original meaning (which controls)
and expectations about how the text would apply (which do not). See
Whittington 383 (“Specific expectations about the consequences of a
legal rule are distinct from the meaning of the rule
itself ”). Contemporary government actors might have been
“wrong about the consequences of their own constitutional rule,” or
they “might not have fully and faithfully implemented the adopted
constitutional rule themselves.” Id. , at 384. Thus, while
early applications of a constitutional rule can help illuminate its
original scope, an interpreter must exercise care in considering
them. Id. , at 385–386. In the Second Amendment context,
particular gun regulations—even if from the ratification era—do not
themselves have the status of constitutional law. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–915

															_________________

															UNITED STATES, PETITIONER v. ZACKEY
RAHIMI

															on writ of certiorari to the united states
court of appeals for the fifth circuit

															[June 21, 2024]

															Justice Thomas, dissenting.

															After New York State Rifle & Pistol
Assn., Inc. v. Bruen , 597 U.S. 1 (2022), this Court’s
directive was clear: A firearm regulation that falls within the
Second Amendment’s plain text is unconstitutional unless it is
consistent with the Nation’s historical tradition of firearm
regulation. Not a single historical regulation justifies the
statute at issue, 18 U. S. C. §922(g)(8). Therefore, I
respectfully dissent.

															I

															Section 922(g)(8) makes it unlawful for an
individual who is subject to a civil restraining order to possess
firearms or ammunition. To trigger §922(g)(8)’s prohibition, a
restraining order must bear three characteristics. First, the order
issues after a hearing where the accused “received actual notice”
and had “an opportunity to participate.” §922(g)(8)(A). Second, the
order restrains the accused from engaging in threatening behavior
against an intimate partner or child. §922(g)(8)(B). Third, the
order has either “a finding that [the accused] represents a
credible threat to the physical safety of [an] intimate partner or
child,” or an “explici[t] prohibit[ion]” on “the use, attempted
use, or threatened use of physical force against [an] intimate
partner or child.” §922(g)(8)(C). If those three characteristics
are present, §922(g)(8) automatically bans the individual subject
to the order from possessing “any firearm or ammunition.”
§922(g).

															Just as important as §922(g)(8)’s express terms
is what it leaves unsaid. Section 922(g)(8) does not require a
finding that a person has ever committed a crime of domestic
violence. It is not triggered by a criminal conviction or a
person’s criminal history, unlike other §922(g) subsections. See
§§922(g)(1), (9). And, §922(g)(8) does not distinguish contested
orders from joint orders—for example, when parties voluntarily
enter a no-contact agreement or when both parties seek a
restraining order.

															In addition, §922(g)(8) strips an individual of
his ability to possess firearms and ammunition without any due
process.[ 1 ] Rather, the ban is
an automatic, uncontestable consequence of certain orders. See
§922(g) (“It shall be unlawful for any [qualifying] person [to]
possess in or affecting commerce, any firearm or ammunition”).
There is no hearing or opportunity to be heard on the statute’s
applicability, and a court need not decide whether a person should
be disarmed under §922(g)(8). The only process §922(g)(8) requires
is that provided (or not) for the underlying restraining
order.

															Despite §922(g)(8)’s broad scope and lack of
process, it carries strong penalties. Any violation of §922(g)(8)
is a felony punishable by up to 15 years’ imprisonment. §924(a)(8);
see also ante, at 3. And, a conviction for violating
§922(g)(8) itself triggers a permanent, life-long prohibition on
possessing firearms and ammunition. See §922(g)(1).

															In 2020, Zackey Rahimi and his ex-girlfriend,
C. M., entered into a qualifying civil restraining order. App.
1. C. M. had requested the order and asserted that Rahimi
assaulted her. See id., at 2. Because the order found that
Rahimi presented a credible threat and prohibited him from using
physical force against C. M., the order automatically
triggered §922(g)(8)’s firearms ban. A year later, officers
discovered firearms in Rahimi’s home. Rahimi pleaded guilty to
violating §922(g)(8).

															Before his guilty plea, Rahimi challenged his
conviction under the Second Amendment. He pointed to District of
Columbia v. Heller , 554 U.S.
570 (2008), which held that the Second Amendment protects an
individual right to keep and bear firearms. Section 922(g)(8),
Rahimi argued, violates that right by penalizing firearms
possession. The District Court rejected Rahimi’s claim. At that
time, the Courts of Appeals, including the Fifth Circuit, applied a
form of means-end scrutiny to Second Amendment claims. See, e . g ., United States v. McGinnis , 956
F.3d 747, 753–754 (2020). Applying Circuit precedent, the Fifth
Circuit affirmed the District Court. 2022 WL 2070392 (2022).

															Roughly two weeks later, this Court issued its
opinion in New York State Rifle & Pistol Assn., Inc. v. Bruen . The Court rejected the means-end-scrutiny approach
and laid out the appropriate framework for assessing whether a
firearm regulation is constitutional. Bruen , 597 U. S.,
at 17–19. That framework requires the Government to prove that the
“regulation is part of the historical tradition that delimits the
outer bounds of the right to keep and bear arms.” Id ., at
19. The Fifth Circuit withdrew its opinion to apply the correct
framework to Rahimi’s claim. Relying on Bruen , the Fifth
Circuit concluded that the Government failed to present historical
evidence that §922(g)(8) “fits within our Nation’s historical
tradition of firearm regulation.” 61 F. 4th 443, 460 (2023). The
Fifth Circuit, accordingly, vacated Rahimi’s conviction. We granted
certiorari. 600 U. S. ___ (2023).

															II

															The Second Amendment provides that “[a] well
regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be
infringed.” As the Court recognizes, Bruen provides the
framework for analyzing whether a regulation such as §922(g)(8)
violates the Second Amendment’s mandate. “[W]hen the Second
Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct.” 597 U. S.,
at 17. To overcome this presumption, “the government must
demonstrate that the regulation is consistent with the Nation’s
historical tradition of firearm regulation.” Ibid . The
presumption against restrictions on keeping and bearing firearms is
a central feature of the Second Amendment. That Amendment does not
merely narrow the Government’s regulatory power. It is a barrier,
placing the right to keep and bear arms off limits to the
Government.

															When considering whether a modern regulation is
consistent with historical regulations and thus overcomes the
presumption against firearms restrictions, our precedents “point
toward at least two metrics [of comparison]: how and why the
regulations burden a law-abiding citizen’s right to armed
self-defense.” Id ., at 29. A historical law must satisfy
both considerations to serve as a comparator. See ibid .
While a historical law need not be a “historical twin,” it must be
“well-established and representative” to serve as a historical
analogue. Id ., at 30 (emphasis deleted).

															In some cases, “the inquiry [is] fairly
straightforward.” Id ., at 26. For instance, “when a
challenged regulation addresses a general societal problem that has
persisted since the 18th century, the lack of a distinctly similar
historical regulation addressing that problem is relevant evidence
that the challenged regulation is inconsistent with the Second
Amendment. Likewise, if earlier generations addressed the societal
problem, but did so through materially different means, that also
could be evidence that a modern regulation is unconstitutional.” Id ., at 26–27.

															The Court employed this “straightforward”
analysis in Heller and Bruen . Heller considered the District of Columbia’s “flat ban on the possession
of handguns in the home,” Bruen , 597 U. S., at 27, and Bruen considered New York’s effective ban on carrying a
firearm in public, see id. , at 11–13. The Court determined
that the District of Columbia and New York had “addressed a
perceived societal problem—firearm violence in densely populated
communities—and [they] employed a regulation . . . that
the Founders themselves could have adopted to confront that
problem.” Id ., at 27. Accordingly, the Court “consider[ed]
‘founding-era historical precedent’ ” and looked for a
comparable regulation. Ibid . (quoting Heller , 554
U. S., at 631). In both cases, the Court found no such law and
held the modern regulations unconstitutional. Id. , at 631; Bruen , 597 U. S., at 27.

															Under our precedent, then, we must resolve two
questions to determine if §922(g)(8) violates the Second Amendment:
(1) Does §922(g)(8) target conduct protected by the Second
Amendment’s plain text; and (2) does the Government establish
that §922(g)(8) is consistent with the Nation’s historical
tradition of firearm regulation?

															III

															Section 922(g)(8) violates the Second
Amendment. First, it targets conduct at the core of the Second
Amendment—possessing firearms. Second, the Government failed to
produce any evidence that §922(g)(8) is consistent with the
Nation’s historical tradition of firearm regulation. To the
contrary, the founding generation addressed the same societal
problem as §922(g)(8) through the “materially different means” of
surety laws. Id. , at 26.

															A

															It is undisputed that §922(g)(8) targets
conduct encompassed by the Second Amendment’s plain text. After
all, the statute bans a person subject to a restraining order from
possessing or using virtually any firearm or ammunition. §922(g)
(prohibiting covered individuals from “possess[ing]” or
“receiv[ing] any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce”). A covered
individual cannot even possess a firearm in his home for
self-defense, “the central component of the [ Second Amendment]
right itself.” Heller , 554 U. S., at 599 (emphasis
deleted). There is no doubt that §922(g)(8) is irreconcilable with
the Second Amendment’s text. Id. , at 628–629.

															It is also undisputed that the Second Amendment
applies to Rahimi. By its terms, the Second Amendment extends to
“ ‘the people,’ ” and that “term unambiguously refers to
all members of the political community, not an unspecified subset.” Id. , at 580. The Second Amendment thus recognizes a right
“guaranteed to ‘all Americans.’ ” Bruen , 597
U. S., at 70 (quoting Heller , 554 U. S., at 581).
Since Rahimi is a member of the political community, he falls
within the Second Amendment’s guarantee.

															B

															The Government fails to carry its burden of
proving that §922(g)(8) is “consistent with the Nation’s historical
tradition of firearm regulation.” 597 U. S., at 24. Despite
canvassing laws before, during, and after our Nation’s founding,
the Government does not identify even a single regulation with an
analogous burden and justification.[ 2 ]

															The Government’s failure is unsurprising given
that §922(g)(8) addresses a societal problem—the risk of
interpersonal violence—“that has persisted since the 18th century,”
yet was addressed “through [the] materially different means” of
surety laws. Id ., at 26. Surety laws were, in a nutshell, a
fine on certain behavior. If a person threatened someone in his
community, he was given the choice to either keep the peace or
forfeit a sum of money. Surety laws thus shared the same
justification as §922(g)(8), but they imposed a far less onerous
burden. The Government has not shown that §922(g)(8)’s more severe
approach is consistent with our historical tradition of firearm
regulation.

															1

															The Government does not offer a single
historical regulation that is relevantly similar to §922(g)(8). As
the Court has explained, the “central considerations” when
comparing modern and historical regulations are whether the
regulations “impose a comparable burden” that is “comparably
justified.” Id ., at 29. The Government offers only two
categories of evidence that are even within the ballpark of
§922(g)(8)’s burden and justification: English laws disarming
persons “dangerous” to the peace of the kingdom, and commentary
discussing peaceable citizens bearing arms. Neither category
ultimately does the job.

															i

															The Government points to various English laws
from the late 1600s and early 1700s to argue that there is a
tradition of restricting the rights of “dangerous” persons. For
example, the Militia Act of 1662 authorized local officials to
disarm individuals judged “dangerous to the Peace of the Kingdome.”
14 Car. 2 c. 3, §13. And, in the early 1700s, the Crown authorized
lords and justices of the peace to “cause search to be made for
arms in the possession of any persons whom they judge dangerous,
and seize such arms according to law.” Calendar of State Papers
Domestic: William III, 1700–1702, p. 234 (E. Bateson ed. 1937)
(Calendar William III).

															At first glance, these laws targeting
“dangerous” persons might appear relevant. After all, if the Second
Amendment right was historically understood to allow an official to
disarm anyone he deemed “dangerous,” it may follow that modern
Congresses can do the same. Yet, historical context compels the
opposite conclusion. The Second Amendment stems from English
resistance against “dangerous” person laws.

															The sweeping disarmament authority wielded by
English officials during the 1600s, including the Militia Act of
1662, prompted the English to enshrine an individual right to keep
and bear arms. “[T]he Stuart Kings Charles II and James II
succeeded in using select militias loyal to them to suppress
political dissidents, in part by disarming their opponents.” Heller , 554 U. S., at 592. Englishmen, as a result,
grew “to be extremely wary of concentrated military forces run by
the state and to be jealous of their arms.” Id. , at 593.
Following the Glorious Revolution, they “obtained an assurance
. . . in the Declaration of Right (which was codified as
the English Bill of Rights), that Protestants would never be
disarmed.” Ibid. The English Bill of Rights “has long been
understood to be the predecessor to our Second Amendment.” Ibid. In fact, our Founders expanded on it and made the
Second Amendment even more protective of individual liberty. The
English Bill of Rights assured Protestants “Arms for their
Defence,” but only where “suitable to their Conditions and as
allowed by Law.” 1 Wm. & Mary, ch. 2, (1688), in 6 Statutes of
the Realm 143. The Second Amendment, however, contains no such
qualifiers and protects the right of “the people” generally. In
short, laws targeting “dangerous” persons led to the Second
Amendment. It would be passing strange to permit the Government to
resurrect those selfsame “dangerous” person laws to chip away at
that Amendment’s guarantee.

															Even on their own terms, laws targeting
“dangerous” persons cannot support §922(g)(8). Those laws were
driven by a justification distinct from that of §922(g)(8)—quashing
treason and rebellion. The Stuart Kings’ reign was marked by
religious and political conflict, which at that time were often one
and the same. The Parliament of the late 1600s “re-established an
intolerant episcopalian church” through legislation targeting other
sects, including “[a] fierce penal code” to keep those other sects
out of local government and “to criminalize nonconformist worship.”
Oxford Handbook of the English Revolution 212 (M. Braddick ed.
2015) (Oxford Handbook); see G. Clark, The Later Stuarts 1660–1714,
p. 22 (2d ed. 1955). These laws were driven in large part by a
desire to suppress rebellion. “Nonconformist ministers were thought
to preach resistance to divinely ordained monarchs.” Oxford
Handbook 212; see Calendar of State Papers Domestic: Charles II,
1661–1662, p. 161 (M. Green ed. 1861) (Calendar Charles II)
(“[P]reachers go about from county to county, and blow the flames
of rebellion”). Various nonconformist insurrections gave
credibility to these fears. See, e.g., Clark, The Later
Stuarts, at 22; Privy Council to Lord Newport (Mar. 4, 1661), in
Transactions of the Shropshire Archaeological and Natural History
Society, Pt. 2, 3d Ser., Vol. 4, p. 161 (1904).

															It is in this turbulent context that the English
kings permitted the disarming of “dangerous persons.” English lords
feared that nonconformists— i . e ., people with
“ ‘wicked and Rebellious Principles’ ”—had
“ ‘furnished themselves with quantities of Arms, and
Ammunition’ ” “ ‘to put in Execution their Trayterus
designs.’ ” Privy Council to Lord Newport (Jan. 8, 1660), in id., at 156; see Calendar Charles II 541 (“The fanatics
. . . are high and insolent, and threaten all loyal
people; they will soon be in arms”). In response, the Crown took
measures to root out suspected rebels, which included “disarm[ing]
all factious and seditious spirits.” Id ., at 538 (Nov. 1,
1662). For example, following “turbulency and difficulties” arising
from the Conventicles Act of 1670, which forbade religious
nonconformists from assembling, the lord mayor of London pressed
that “a special warrant or commission [was] necessary” empowering
commissioners to “resist, fight, kill, and execute such rebels.”
Calendar of State Papers, Domestic Series, 1670, p. 236 (May 25,
1670) (M. Green ed. 1895) (emphasis deleted). King Charles II
ordered the lord mayor “to make strict search in the city and
precincts for dangerous and disaffected persons, seize and secure
them and their arms, and detain them in custody till our further
pleasure.” Id. , at 237 (May 26, 1670).

															History repeated itself a few decades later. In
1701, King William III declared that “great quantities of arms, and
other provisions of war” had been discovered in the hands of
“papists and other disaffected persons, who disown [the]
government,” and that such persons had begun to assemble “in great
numbers . . . in the cities of London and Westminster.”
Calendar William III 233. He ordered the lord mayor of London and
the justices of the peace to “secur[e] the government” by disarming
“any persons whom they judge[d] dangerous,” including “any papist,
or reputed papist.” Id. , at 233–234 (emphasis deleted).
Similar disarmaments targeting “Papists and Non-jurors dangerous to
the peace of the kingdom” continued into the 1700s. Privy Council
to the Earl of Carlisle (July 30, 1714), in Historical Manuscripts
Comm’n, Manuscripts of the Earl of Westmoreland et al. 10th
Report, Appx., Pt. 4, p. 343 (1885). As before, disarmament was
designed to stifle “wicked conspirac[ies],” such as “raising a
Rebellion in this Kingdom in favour of a Popish Pretender.” Lord
Lonsdale to Deputy Lieutenants of Cumberland (May 20, 1722), in
Historical Manuscripts Commission, Manuscripts of the Earl of
Carlisle, 15th Report, Appx., Pt. 6, pp. 39–40 (1897).

															While the English were concerned about
preventing insurrection and armed rebellion, §922(g)(8) is
concerned with preventing interpersonal violence. “Dangerous”
person laws thus offer the Government no support.

															ii

															The Government also points to historical
commentary referring to the right of “peaceable” citizens to carry
arms. It principally relies on commentary surrounding two failed
constitutional proposals.[ 3 ]
First, at the Massachusetts convention, Samuel Adams unsuccessfully
proposed that the Bill of Rights deny Congress the power “to
prevent the people of the United States, who are peaceable
citizens, from keeping their own arms.” 6 Documentary History of
the Ratification of the Constitution 1453 (J. Kaminski & G.
Saladino eds. 2000) (Documentary History). Second, Anti-Federalists
at the Pennsylvania convention unsuccessfully proposed a Bill of
Rights providing a “right to bear arms for the defense of
themselves and their own state, or the United States, or for the
purpose of killing game.” 2 id., at 597–598, ¶7 (M. Jensen
ed. 1976). The Anti-Federalists’ Bill of Rights would also state
that “no law shall be passed for disarming the people or any of
them, unless for crimes committed, or real danger of public injury
from individuals.” Id ., at 598.

															These proposals carry little interpretative
weight. To begin with, it is “dubious to rely on [drafting] history
to interpret a text that was widely understood to codify a
pre-existing right.” Heller , 554 U. S., at 603.
Moreover, the States rejected the proposals. Samuel Adams withdrew
his own proposal after it “alarmed both Federalists and
Antifederalists.” 6 Documentary History 1453 (internal quotation
marks omitted).[ 4 ] The
Pennsylvania Anti-Federalists’ proposal similarly failed to gain a
majority of the state convention. 2 B. Schwartz, The Bill of
Rights: A Documentary History 628 (1971).

															The Government never explains why or how
language excluded from the Constitution could operate to
limit the language actually ratified. The more natural inference
seems to be the opposite—the unsuccessful proposals suggest that
the Second Amendment preserves a more expansive right. After all,
the Founders considered, and rejected, any textual limitations in
favor of an unqualified directive: “[T]he right of the people to
keep and bear Arms, shall not be infringed.”

															In addition to the proposals, the Government
throws in a hodgepodge of sources from the mid-to-late 1800s that
use the phrase “peaceable” in relation to firearms. Many of the
sources simply make passing reference to the notion. See, e . g ., H. R. Rep. No. 30, 39th Cong., 1st Sess., pt.
2, p. 229 (1866) (proposed circular explaining freed slaves “have
shown by their peaceful and orderly conduct that they can safely be
trusted with fire-arms, and they need them to kill game for
subsistence”). Other sources are individual musings on firearms
policy. See, e . g ., The Sale of Pistols, N. Y.
Times, June 22, 1874 (advocating for “including pistols in the law
against carrying concealed weapons”). Sources that do discuss
disarmament generally describe nonpeaceable citizens as those who
threaten the public or government. For example, the Government
quotes a Union General’s order that “all loyal and peaceable
citizens in Missouri will be permitted to bear arms.” Headquarters,
Dept. of the Missouri, General Orders, No. 86 (Aug. 25, 1863), in
The War of the Rebellion: A Compilation of the Official Records of
the Union and Confederate Armies, Ser. 1, Vol. 22, Pt. 2, p. 475
(1888). Yet, the Government fails to mention that the Union
General’s order addresses the “[l]arge numbers of men
. . . leaving the broken rebel armies . . . and
returning to Missouri . . . with the purpose of following
a career of plunder and murder.” Id ., at 474. The order
provided that “all those who voluntarily abandon[ed] the rebel
cause” could return to Missouri, but only if they “surrender[ed]
themselves and their arms,” “[took] the oath of allegiance and
[gave] bond for their future good conduct.” Ibid. By
contrast, “all loyal and peaceable citizens in Missouri w[ere]
permitted to bear arms” to “protect themselves from violence” and
“aid the troops.” Id ., at 475. Thus, the term “loyal and
peaceable” distinguished between the former rebels residing in
Missouri who were disarmed to prevent rebellion and those citizens
who would help fight against them.

															The Government’s smorgasbord of commentary
proves little of relevance, and it certainly does not establish a
“historical tradition that delimits the outer bounds of the right
to keep and bear arms.” Bruen , 597 U. S., at 19.

															iii

															The Government’s remaining evidence is even
further afield. The Government points to an assortment of firearm
regulations, covering everything from storage practices to treason
and mental illness. They are all irrelevant for purposes of
§922(g)(8). Again, the “central considerations” when comparing
modern and historical regulations are whether they “impose a
comparable burden” that is “comparably justified.” Id. , at
29 (emphasis deleted; internal quotation marks omitted). The
Government’s evidence touches on one or none of these
considerations.

															The Government’s reliance on firearm storage
laws is a helpful example. These laws penalized the improper
storage of firearms with forfeiture of those weapons. See, e.g., Act of Mar. 1, 1783, ch. 46, 1782 Mass. Acts pp.
119–120. First, these storage laws did not impose a “comparable
burden” to that of §922(g)(8). Forfeiture still allows a person to
keep their other firearms or obtain additional ones. It is in no
way equivalent to §922(g)(8)’s complete prohibition on owning or
possessing any firearms.

															In fact, the Court already reached a similar
conclusion in Heller . The Court was tasked with comparing
laws imposing “a small fine and forfeiture of the weapon” with the
District of Columbia’s ban on keeping functional handguns at home
for self-defense, which was punishable by a year in prison. 554
U. S., at 633–634. We explained that the forfeiture laws were
“akin to modern penalties for minor public-safety infractions like
speeding or jaywalking.” Id. , at 633. Such inconsequential
punishment would not have “prevented a person in the founding era
from using a gun to protect himself or his family.” Id ., at
634. Accordingly, we concluded that the burdens were not
equivalent. See id ., at 633–634. That analysis applies here
in full force. If a small fine and forfeiture is not equivalent to
the District of Columbia’s handgun ban, it certainly falls short of
§922(g)(8)’s ban on possessing any firearm.

															The Government resists the conclusion that
forfeiture is less burdensome than a possession ban, arguing that
“[t]he burdens imposed by bans on keeping, bearing, and obtaining
arms are all comparable.” Reply Brief 10. But, there is surely a
distinction between having no Second Amendment rights and
having some Second Amendment rights. If self-defense is “the
central component of the [ Second Amendment] right,” then common
sense dictates that it matters whether you can defend yourself with
a firearm anywhere, only at home, or nowhere. Heller , 554
U. S., at 599 (emphasis deleted). And, the Government’s
suggestion ignores that we have repeatedly drawn careful
distinctions between various laws’ burdens. See, e.g. , id. , at 632 (explaining that laws that “did not clearly
prohibit loaded weapons . . . do not remotely burden the
right of self-defense as much as an absolute ban on handguns”); see
also Bruen , 597 U. S., at 48.

															Our careful parsing of regulatory burdens makes
sense given that the Second Amendment codifies a right with a
“historically fixed meaning.” Id ., at 28. Accordingly,
history is our reference point and anchor. If we stray too far from
it by eliding material differences between historical and modern
laws, we “risk endorsing outliers that our ancestors would never
have accepted.” Id ., at 30 (internal quotation marks and
alteration omitted).

															Second, the Government offers no “comparable
justification” between laws punishing firearm storage practices and
§922(g)(8). It posits that both laws punish persons whose “conduct
suggested that he would not use [firearms] responsibly.” Brief for
United States 24. The Government, however, does not even attempt to
ground that justification in historical evidence. See infra ,
at 28–29.

															The Government’s proposed justification is also
far too general. Nearly all firearm regulations can be cast as
preventing “irresponsible” or “unfit” persons from accessing
firearms. In addition, to argue that a law limiting access to
firearms is justified by the fact that the regulated groups should
not have access to firearms is a logical merry-go-round. As the
Court has made clear, such overly broad judgments cannot suffice.
In Bruen , New York claimed it could effectively ban public
carry because “the island of Manhattan [is] a ‘sensitive
place.’ ” 597 U. S., at 31. New York defined a “sensitive
place” as “all places where people typically congregate and where
law-enforcement and other public-safety professionals are
presumptively available.” Id. , at 30–31 (internal quotation
marks omitted). The Court rejected that definition as “far too
broa[d]” as it “would in effect exempt cities from the Second
Amendment and would eviscerate the general right to publicly carry
arms for self-defense.” Id ., at 31. Likewise, calling a
modern and historical law comparably justified because they both
prevent unfit persons from accessing firearms would render our
comparable-justification inquiry toothless.[ 5 ]

															In sum, the Government has not identified any
historical regulation that is relevantly similar to §922(g)(8).

															2

															This dearth of evidence is unsurprising
because the Founders responded to the societal problem of
interpersonal violence through a less burdensome regime: surety
laws. Tracing back to early English history, surety laws were a
preventative mechanism for ensuring an individual’s future
peaceable conduct. See D. Feldman, The King’s Peace, the Royal
Prerogative and Public Order, 47 Cambridge L. J. 101, 101–102
(1988); M. Dalton, The Countrey Justice 140–144 (1619). If someone
received a surety demand, he was required to go to a court or
judicial officer with one or more members of the
community— i . e ., sureties—and comply with certain
conditions. 4 W. Blackstone, Commentaries on the Laws of England
249–250 (1769) (Blackstone). Specifically, the person providing
sureties was required to “keep the peace: either generally
. . . or . . . with regard to the person who
crave[d] the security” until a set date. Id ., at 250. If he
kept the peace, the surety obligation dissolved on that
predetermined date. See ibid . If, however, he breached the
peace before that date, he and his sureties would owe a set sum of
money. See id ., at 249–250. Evidence suggests that sureties
were readily available. Even children, who “[we]re incapable of
engaging themselves to answer any debt,” could still find “security
by their friends.” Id ., at 251.

															There is little question that surety laws
applied to the threat of future interpersonal violence. “[W]herever
any private man [had] just cause to fear, that another w[ould] burn
his house, or do him a corporal injury, by killing, imprisoning, or
beating him . . . he [could] demand surety of the peace
against such person.” Id ., at 252; see also J. Backus, The
Justice of the Peace 25 (1816) (providing for sureties when a
person “stands in fear of his life, or of some harm to be done to
his person or his estate” (emphasis deleted)).

															Surety demands were also expressly available to
prevent domestic violence. Surety could be sought by “a wife
against her husband who threatens to kill her or beat her
outrageously, or, if she have notorious cause to fear he will do
either.” Id ., at 24; see 1 W. Hawkins, Pleas of the Crown
253 (6th ed. 1777) (“[I]t is certain, that a wife may demand [a
surety] against her husband threatening to beat her outrageously,
and that a husband also may have it against his wife”). The right
to demand sureties in cases of potential domestic violence was
recognized not only by treatises, but also the founding-era courts.
Records from before and after the Second Amendment’s ratification
reflect that spouses successfully demanded sureties when they
feared future domestic violence. See, e.g. , Records of the
Courts of Quarter Sessions and Common Pleas of Bucks County,
Pennsylvania, 1684–1700, pp. 80–81 (1943) (detailing surety
demanded upon allegations that a husband was “abusive to [his wife]
that she was afraid of her Life & of her Childrns lifes”); see
also Heyn’s Case , 2 Ves. & Bea. 182, 35 Eng. Rep. 288
(Ch. 1813) (1822) (granting wife’s request to order her husband who
committed “various acts of ill usage and threats” to “find
sufficient sureties”); Anonymous , 1 S. C. Eq. 113
(1785) (order requiring husband to “enter into recognizance
. . . with two sureties . . . for keeping the
peace towards the complainant (his wife)”).

															3

															Although surety laws shared a common
justification with §922(g)(8), surety laws imposed a materially
different burden. Critically, a surety demand did not alter an
individual’s right to keep and bear arms. After providing sureties,
a person kept possession of all his firearms; could purchase
additional firearms; and could carry firearms in public and
private. Even if he breached the peace, the only penalty was that
he and his sureties had to pay a sum of money. 4 Blackstone 250. To
disarm him, the Government would have to take some other action,
such as imprisoning him for a crime. See Feldman, 47 Cambridge
L. J., at 101.

															By contrast, §922(g)(8) strips an individual of
his Second Amendment right. The statute’s breadth cannot be
overstated. For one, §922(g) criminalizes nearly all conduct
related to covered firearms and ammunition. Most fundamentally,
possession is prohibited, except in the rarest of circumstances.
See, e.g., United States v. Rozier , 598 F.3d
768, 771 (CA11 2010) ( per curiam ) (concluding that it
was “irrelevant” whether defendant “possessed the handgun for
purposes of self-defense (in his home)”); United States v. Gant , 691 F.2d 1159, 1162 (CA5 1982) (affirming conviction
of a business owner under §922(g) predecessor statute for briefly
possessing a firearm to ward off suspected robbers). Courts of
Appeals have understood “possession” broadly, upholding convictions
where a person “picked up . . . three firearms for a few
seconds to inspect” each, United States v. Matthews ,
520 F.3d 806, 807 (CA7 2008), or “made direct contact with the
firearm by sitting on it,” United States v. Johnson ,
46 F. 4th 1183, 1189 (CA10 2022). They have also construed
§922(g) to bar “constructive possession” of a firearm, including,
for example, ammunition found in a jointly occupied home. See, e.g., United States v. Stepp , 89 F. 4th 826,
832–835 (CA10 2023).

															Moreover, §922(g) captures virtually all
commercially available firearms and ammunition. It prohibits
possessing a firearm “in or affecting commerce” and “receiv[ing]
any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.” §922(g). As courts have
interpreted that nexus, if a firearm or ammunition has at any point
crossed interstate lines, it is regulated by §922(g). See Scarborough v. United States , 431
U.S. 563 , 566–567 (1977) (holding §922(g)’s predecessor statute
covered firearm that “had previously traveled in interstate
commerce”); United States v. Lemons , 302 F.3d 769 , 772 (CA7 2002) (affirming conviction under
§922(g) for possessing firearm that “crossed into Wisconsin after
its manufacture at some indeterminate moment in time—possibly years
before it was discovered in [the defendant’s]
possession”).[ 6 ] In fact, the
statute goes even further by regulating not only ammunition but
also all constituent parts of ammunition—many of which are
parts with no dangerous function on their own. See 18
U. S. C. §921(a)(17)(A).

															These sweeping prohibitions are criminally
enforced. To violate the statute is a felony, punishable by up to
15 years. §924(a)(8). That felony conviction, in turn, triggers a
permanent, life-long prohibition on exercising the Second Amendment
right. See §922(g)(1).

															The combination of the Government’s sweeping
view of the firearms and ammunition within its regulatory reach and
the broad prohibition on any conduct regarding covered firearms and
ammunition makes §922(g)(8)’s burden unmistakable: The statute
revokes a citizen’s Second Amendment right while the civil
restraining order is in place. And, that revocation is absolute. It
makes no difference if the covered individual agrees to a
no-contact order, posts a bond, or even moves across the country
from his former domestic partner—the bar on exercising the Second
Amendment right remains. See United States v. Wilkey ,
2020 WL 4464668, *1 (D Mont., Aug. 4, 2020) (defendant agreed to
Florida protection order so he could “ ‘just walk away’ ”
and was prosecuted several years later for possessing firearms in
Montana).

															That combination of burdens places §922(g)(8) in
an entirely different stratum from surety laws. Surety laws
preserve the Second Amendment right, whereas §922(g)(8) strips an
individual of that right. While a breach of a surety demand was
punishable by a fine, §922(g)(8) is punishable by a felony
conviction, which in turn permanently revokes an individual’s
Second Amendment right. At base, it is difficult to imagine how
surety laws can be considered relevantly similar to a complete ban
on firearm ownership, possession, and use.

															This observation is nothing new; the Court has
already recognized that surety laws impose a lesser relative burden
on the Second Amendment right. In Bruen , the Court explained
that surety laws merely “provide financial incentives for
responsible arms carrying.” 597 U. S., at 59. “[A]n accused
arms-bearer ‘could go on carrying without criminal penalty’ so long
as he ‘post[ed] money that would be forfeited if he breached the
peace or injured others.’ ” Id. , at 56–57 (quoting Wrenn v. District of Columbia , 864 F.3d 650, 661
(CADC 2017); alteration in original). As a result, we held that
surety laws were not analogous to New York’s effective ban on
public carry. 597 U. S., at 55. That conclusion is damning for
§922(g)(8), which burdens the Second Amendment right even more with
respect to covered individuals.

															Surety laws demonstrate that this case should
have been a “straightforward” inquiry. Id. , at 27. The
Government failed to produce a single historical regulation that is
relevantly similar to §922(g)(8). Rather, §922(g)(8) addresses a
societal problem—the risk of interpersonal violence—“that has
persisted since the 18th century,” yet was addressed “through [the]
materially different means” of surety laws. Id. , at 26.

															C

															The Court has two rejoinders, surety and
affray laws. Neither is a compelling historical analogue. As I have
explained, surety laws did not impose a burden comparable to
§922(g)(8). And, affray laws had a dissimilar burden and justification. The Court does not reckon with these vital
differences, asserting that the disagreement is whether surety and
affray laws must be an exact copy of §922(g)(8). Ante , at
16. But, the historical evidence shows that those laws are
worlds—not degrees—apart from §922(g)(8). For this reason, the
Court’s argument requires combining aspects of surety and affray
laws to justify §922(g)(8). This piecemeal approach is not what the
Second Amendment or our precedents countenance.

															1

															Despite the foregoing evidence, the Court
insists that surety laws in fact support §922(g)(8). To make
its case, the Court studiously avoids discussing the full extent of
§922(g)(8)’s burden as compared to surety laws. The most the Court
does is attack Bruen ’s conclusion that surety laws were less
burdensome than a public carry ban. The Court reasons that Bruen dealt with a “broad prohibitory regime” while
§922(g)(8) applies to only a subset of citizens. Ante, at
15–16. Yet, that was only one way in which Bruen distinguished a public carry ban from surety laws’ burden. True, Bruen noted that, unlike the public carry ban, surety laws
did not restrict the general citizenry. But, Bruen also
plainly held that surety laws did not “constitut[e] a ‘severe’
restraint on public carry, let alone a restriction tantamount to a
ban.” 597 U. S., at 59. In fact, that conclusion is repeated
throughout the opinion. Id ., at 55–59 (surety laws “were not bans on public carry”; “surety laws did not prohibit public carry”; surety laws “were not viewed as substantial
restrictions on public carry”; and “surety statutes did not
directly restrict public carry”). Bruen ’s conclusion is
inescapable and correct. Because surety laws are not equivalent to
an effective ban on public carry, they do not impose a burden
equivalent to a complete ban on carrying and possessing
firearms.

															Next, the Court relies on affray laws
prohibiting “riding or going armed, with dangerous or unusual
weapons, [to] terrif[y] the good people of the land.” 4 Blackstone
149 (emphasis deleted). These laws do not justify §922(g)(8)
either. As the Court concedes, why and how a historical regulation
burdened the right of armed self-defense are central
considerations. Ante , at 7. Affray laws are not a fit on
either basis.

															First, affray laws had a distinct justification
from §922(g)(8) because they regulated only certain public conduct
that injured the entire community. An affray was a “common
Nusanc[e],” 1 Hawkins, Pleas of the Crown, at 135, defined as “the
fighting of two or more persons in some public place, to the terror
of his majesty’s subjects,” 4 Blackstone 145. Even though an affray
generally required “actual violence,” certain other conduct could
suffice. 1 R. Burn, The Justice of the Peace, and Parish Officer 13
(2d ed. 1756). As relevant here, an affray included arming oneself
“with dangerous and unusual weapons, in such a manner as [to]
naturally cause a terror to the people”— i . e ., “going
armed.” Ibid. Many postfounding going armed laws had a
self-defense exception: A person could “go armed with a[n]
. . . offensive and dangerous weapon” so long as he had
“reasonable cause to fear an assault or other injury.” Mass. Rev.
Stat., ch. 134, §16 (1836); see also 1838 Terr. of Wis. Stat. §16,
p. 381; 1851 Terr. of Minn. Rev. Stat., ch. 112, §18.

															Affrays were defined by their public nature and
effect. An affray could occur only in “some public place,” and
captured only conduct affecting the broader public. 4 Blackstone
145. To that end, going armed laws did not prohibit carrying
firearms at home or even public carry generally. See Bruen ,
597 U. S., at 47–50. Instead, they targeted only public carry
that was “accompanied with such circumstances as are apt to terrify
the people.” 1 Burn, Justice of the Peace, at 13; see Bruen ,
597 U. S., at 50 (explaining that going armed laws “prohibit
bearing arms in a way that spreads ‘fear’ or ‘terror’ among the
people”).

															Affrays were intentionally distinguished from
assaults and private interpersonal violence on that same basis. See Cash v. State , 2 Tenn. 198, 199 (1813) (“It is
because the violence is committed in a public place, and to the
terror of the people, that the crime is called an affray, instead
of assault and battery”); Nottingham v. State , 227
Md. App. 592, 602, 135 A.3d 541, 547 (Md. 2016) (“[U]nlike assault
and battery,” affray is “not a crime against the person; rather,
affray is a crime against the public” (internal quotation marks
omitted)). As treatises shortly before the founding explain, “there
may be an Assault which will not amount to an Affray; as where it
happens in a private Place, out of the hearing or seeing of any,
except the Parties concerned; in which Case it cannot be said to be
to the Terror of the People.” 1 Hawkins , Pleas of the Crown,
at 134; see 1 Burn, Justice of the Peace, at 13. Affrays thus did
not cover the very conduct §922(g)(8) seeks to
prevent—interpersonal violence in the home.

															Second, affray laws did not impose a burden
analogous to §922(g)(8). They regulated a niche subset of Second
Amendment-protected activity. As explained, affray laws prohibited
only carrying certain weapons (“dangerous and unusual”) in a
particular manner (“terrifying the good people of the land” without
a need for self-defense) and in particular places (in public).
Meanwhile, §922(g)(8) prevents a covered person from carrying any
firearm or ammunition, in any manner, in any place, at any time,
and for any reason. Section 922(g)(8) thus bans all Second
Amendment-protected activity. Indeed, this Court has already
concluded that affray laws do not impose a burden “analogous to the
burden created by” an effective ban on public carry. Bruen ,
597 U. S., at 50. Surely, then, a law that imposes a public
and private ban on a covered individual cannot have an analogous
burden either.

															The Court counters that since affray laws
“provided for imprisonment,” they imposed a lesser burden than
§922(g)(8)’s disarmament. Ante , at 14. But, that argument
serves only to highlight another fundamental difference: Affray
laws were criminal statutes that penalized past behavior, whereas
§922(g)(8) is triggered by a civil restraining order that seeks to
prevent future behavior. Accordingly, an affray’s burden was vastly
harder to impose. To imprison a person, a State had to prove that
he committed the crime of affray beyond a reasonable doubt. The
Constitution provided a bevy of protections during that
process—including a right to a jury trial, counsel, and protections
against double jeopardy. See Amdts. 5, 6.

															The imposition of §922(g)(8)’s burden, however,
has far fewer hurdles to clear. There is no requirement that the
accused has actually committed a crime; instead, he need only be
prohibited from threatening or using force, or pose a “credible
threat” to an “intimate partner or child.” §922(g)(8)(C). Section
922(g)(8) thus revokes a person’s Second Amendment right based on
the suspicion that he may commit a crime in the future. In
addition, the only process required before that revocation is a
hearing on the underlying court order. §922(g)(8)(A). During that
civil hearing—which is not even about §922(g)(8)—a person has fewer
constitutional protections compared to a criminal prosecution for
affray. Gone are the Sixth Amendment’s panoply of rights, including
the rights to confront witnesses and have assistance of counsel, as
well as the Fifth Amendment’s protection against double jeopardy.
See Turner v. Rogers , 564 U.S.
431 , 441 (2011) (“[T]he Sixth Amendment does not govern civil
cases”); Hudson v. United States , 522 U.S.
93 , 99 (1997) (“The [Double Jeopardy] Clause protects only
against the imposition of multiple criminal punishments for
the same offense”). Civil proceedings also do not require proof
beyond a reasonable doubt, and some States even set aside the rules
of evidence, allowing parties to rely on hearsay. See, e.g., Wash. Rule Evid. 1101(c)(4) (2024) (providing the state rules of
evidence “need not be applied” to applications for protection
orders (boldface and capitalization deleted)); Cal. Civ. Proc. Code
Ann. §527.6(i) (West Supp. 2024) (judge “shall receive any
testimony that is relevant” and issue order based on clear and
convincing evidence). The differences between criminal prosecutions
and civil hearings are numerous and consequential.

															Affray laws are wide of the mark. While the
Second Amendment does not demand a historical twin, it requires
something closer than affray laws, which expressly carve out the
very conduct §922(g)(8) was designed to prevent (interpersonal
violence in the home). Nor would I conclude that affray
laws—criminal laws regulating a specific type of public carry—are
analogous to §922(g)(8)’s use of a civil proceeding to bar all
Second Amendment-protected activity.

															2

															The Court recognizes that surety and affray
laws on their own are not enough. So it takes pieces from each to
stitch together an analogue for §922(g)(8). Ante, at 13. Our
precedents foreclose that approach. The question before us is
whether a single historical law has both a comparable burden and
justification as §922(g)(8), not whether several laws can be
cobbled together to qualify. As Bruen explained,
“determining whether a historical regulation is a proper analogue
for a distinctly modern firearm regulation requires a determination
of whether the two regulations”—the historical and modern
regulations—“are ‘relevantly similar.’ ” 597 U. S., at
28–29. In doing so, a court must consider whether that single
historical regulation “impose[s] a comparable burden on the right
of armed self-defense and whether that burden is comparably
justified.” Id ., at 29 (emphasis added).

															The Court’s contrary approach of mixing and
matching historical laws—relying on one law’s burden and another
law’s justification—defeats the purpose of a historical inquiry
altogether. Given that imprisonment (which involved disarmament)
existed at the founding, the Government can always satisfy this
newly minted comparable-burden requirement. See ante, at
14–15. That means the Government need only find a historical law
with a comparable justification to validate modern disarmament
regimes. As a result, historical laws fining certain behavior could
justify completely disarming a person for the same behavior. That
is the exact sort of “regulatory blank check” that Bruen warns against and the American people ratified the Second Amendment
to preclude. 597 U. S., at 30.

															Neither the Court nor the Government identifies
a single historical regulation with a comparable burden and
justification as §922(g)(8). Because there is none, I would
conclude that the statute is inconsistent with the Second
Amendment.

															IV

															The Government, for its part, tries to rewrite
the Second Amendment to salvage its case. It argues that the Second
Amendment allows Congress to disarm anyone who is not “responsible”
and “law-abiding.” Not a single Member of the Court adopts the
Government’s theory. Indeed, the Court disposes of it in half a
page—and for good reason. Ante, at 17. The Government’s
argument lacks any basis in our precedents and would eviscerate the
Second Amendment altogether.

															A

															The Government’s position is a bald attempt to
refashion this Court’s doctrine. At the outset of this case, the
Government contended that the Court has already held the Second
Amendment protects only “responsible, law-abiding” citizens. Brief
for United States 6, 11–12. The plain text of the Second Amendment
quashes this argument. The Amendment recognizes “the right of the people to keep and bear Arms.” (Emphasis added.) When the
Constitution refers to “the people,” the term “unambiguously refers
to all members of the political community.” Heller , 554
U. S., at 580; see also id ., at 581 (beginning its
analysis with the strong “presumption that the Second Amendment
right . . . belongs to all Americans”). The Government’s
claim that the Court already held the Second Amendment protects
only “law-abiding, responsible citizens” is specious at
best.[ 7 ] See ante , at
17.

															At argument, the Government invented yet another
position. It explained that when it used the term “responsible” in
its briefs, it really meant “not dangerous.” See Tr. of Oral
Arg. 10–11. Thus, it posited that the Second Amendment protects
only law-abiding and non-dangerous citizens. No matter how
many adjectives the Government swaps out, the fact remains that the
Court has never adopted anything akin to the Government’s test. In
reality, the “law-abiding, dangerous citizen” test is the
Government’s own creation, designed to justify every one of its
existing regulations. It has no doctrinal or constitutional
mooring.

															The Government finally tries to cram its
dangerousness test into our precedents. It argues that §922(g)(8)
and its proffered historical laws have a shared justification of
disarming dangerous citizens. The Government, however, does not
draw that conclusion by examining the historical justification for
each law cited. Instead, the Government simply looks—from a modern
vantage point—at the mix of laws and manufactures a possible
connection between them all. Yet, our task is to “assess whether
modern firearms regulations are consistent with the Second
Amendment’s text and historical understanding.” Bruen , 597 U. S., at 26 (emphasis added). To do so, we
must look at the historical law’s justification as articulated
during the relevant time period—not at modern post-hoc speculations. See, e.g ., id ., at 41–42, 48–49; Heller , 554 U. S., at 631–632. As I have explained, a
historically based study of the evidence reveals that the
Government’s position is untenable. Supra , at 7–13.

															As it does today, the Court should continue to
rebuff the Government’s attempts to rewrite the Second Amendment
and the Court’s precedents interpreting it.

															B

															The Government’s “law-abiding, dangerous
citizen” theory is also antithetical to our constitutional
structure. At bottom, its test stems from the idea that the Second
Amendment points to general principles, not a historically grounded
right. And, it asserts that one of those general principles is that
Congress can disarm anyone it deems “dangerous, irresponsible, or
otherwise unfit to possess arms.” Brief for United States 7. This
approach is wrong as a matter of constitutional interpretation, and
it undermines the very purpose and function of the Second
Amendment.

															The Second Amendment recognizes a pre-existing
right and that right was “enshrined with the scope” it was
“understood to have when the people adopted [the Amendment].” Heller , 554 U. S., at 634–635. Only a subsequent
constitutional amendment can alter the Second Amendment’s terms,
“whether or not future legislatures or . . . even future
judges think [its original] scope [is] too broad.” Id., at
635.

															Yet, the Government’s “law-abiding, dangerous
citizen” test—and indeed any similar, principle-based
approach—would hollow out the Second Amendment of any substance.
Congress could impose any firearm regulation so long as it targets
“unfit” persons. And, of course, Congress would also dictate what
“unfit” means and who qualifies. See Tr. of Oral Arg. 7, 51. The
historical understanding of the Second Amendment right would be
irrelevant. In fact, the Government posits that Congress could
enact a law that the Founders explicitly rejected. See id., at 18 (agreeing that modern judgment would override
“[f]ounding-[e]ra applications”). At base, whether a person could
keep, bear, or even possess firearms would be Congress’s policy
choice under the Government’s test.

															That would be the direct inverse of the
Founders’ and ratifying public’s intent. Instead of a substantive
right guaranteed to every individual against Congress, we
would have a right controlled by Congress. “A constitutional
guarantee subject to future judges’ [or Congresses’] assessments of
its usefulness is no constitutional guarantee at all.” Heller , 554 U. S., at 634. The Second Amendment is “the
very product of an interest balancing by the people.” Id ., at 635. It is this policy judgment—not that of modern
and future Congresses—“that demands our unqualified deference.” Bruen , 597 U. S., at 26.

															The Government’s own evidence exemplifies the
dangers of approaches based on generalized principles. Before the
Court of Appeals, the Government pointed to colonial statutes
“disarming classes of people deemed to be threats, including
. . . slaves, and native Americans.” Supp. Brief for
United States in No. 21–11001 (CA5), p. 33. It argued that since
early legislatures disarmed groups considered to be “threats,” a
modern Congress has the same authority. Ibid. The problem
with such a view should be obvious. Far from an exemplar of
Congress’s authority, the discriminatory regimes the Government
relied upon are cautionary tales. They warn that when majoritarian
interests alone dictate who is “dangerous,” and thus can be
disarmed, disfavored groups become easy prey. One of many such
examples was the treatment of freed blacks following the Civil War.
“[M]any of the over 180,000 African-Americans who served in the
Union Army returned to the States of the old Confederacy, where
systematic efforts were made to disarm them and other blacks.” McDonald v. Chicago , 561 U.S.
742 , 771 (2010). Some “States formally prohibited African-
Americans from possessing firearms.” Ibid. And,
“[t]hroughout the South, armed parties . . . forcibly
took firearms from newly freed slaves.” Id. , at 772. “In one
town, the marshal took all arms from returned colored soldiers, and
was very prompt in shooting the blacks whenever an opportunity
occurred.” Ibid . (alterations and internal quotation marks
omitted). A constitutional amendment was ultimately “necessary to
provide full protection for the rights of blacks.” Id. , at
775.

															The Government peddles a modern version of the
governmental authority that led to those historical evils. Its
theory would allow federal majoritarian interests to determine who
can and cannot exercise their constitutional rights. While Congress
cannot revive disarmament laws based on race, one can easily
imagine a world where political minorities or those with disfavored
cultural views are deemed the next “dangers” to society.
Thankfully, the Constitution prohibits such laws. The “very
enumeration of the [ Second Amendment] right takes out of the hands
of government . . . the power to decide on a case-by-case
basis whether the right is really worth insisting upon.” Heller , 544 U. S., at 634.

															The Court rightly rejects the Government’s
approach by concluding that any modern regulation must be justified
by specific historical regulations. See ante , at 10–15. But,
the Court should remain wary of any theory in the future that would
exchange the Second Amendment’s boundary line—“the right of the
people to keep and bear Arms, shall not be infringed”—for vague
(and dubious) principles with contours defined by whoever happens
to be in power.

															*  *  *

															This case is not about whether States can
disarm people who threaten others. States have a ready mechanism
for disarming anyone who uses a firearm to threaten physical
violence: criminal prosecution. Most States, including Texas,
classify aggravated assault as a felony, punishable by up to 20
years’ imprisonment. See Tex. Penal Code Ann. §§22.02(b), 12.33
(West 2019 and Supp. 2023). Assuming C. M.’s allegations could
be proved, Texas could have convicted and imprisoned Rahimi for
every one of his alleged acts. Thus, the question before us is not
whether Rahimi and others like him can be disarmed consistent with
the Second Amendment. Instead, the question is whether the
Government can strip the Second Amendment right of anyone subject
to a protective order—even if he has never been accused or
convicted of a crime. It cannot. The Court and Government do not
point to a single historical law revoking a citizen’s Second
Amendment right based on possible interpersonal violence. The
Government has not borne its burden to prove that §922(g)(8) is
consistent with the Second Amendment’s text and historical
understanding.

															The Framers and ratifying public understood
“that the right to keep and bear arms was essential to the
preservation of liberty.” McDonald , 561 U. S., at 858
(Thomas, J., concurring in part and concurring in judgment). Yet,
in the interest of ensuring the Government can regulate one subset
of society, today’s decision puts at risk the Second Amendment
rights of many more. I respectfully dissent. Notes 1 Rahimi does not ask the
Court to consider, and I do not address, whether §922(g)(8)
satisfies the Due Process Clause. 2 I agree with the majority
that we need not address the “ ‘ongoing scholarly debate on
whether courts should primarily rely on the prevailing
understanding of an individual right when the Fourteenth Amendment
was ratified in 1868 when defining its scope (as well as the scope
of the right against the Federal Government).’ ” Ante, at 8, n. 1 (quoting New York State Rifle & Pistol
Assn., Inc. v. Bruen , 597 U.S. 1, 37
(2022)). 3 The Government also cites
an amendment to the Massachusetts Constitution providing that “the
people have a right to keep and to bear Arms for their Own and the
Common defence.” The Popular Sources of Political Authority:
Documents on the Massachusetts Constitution of 1780, p. 624
(O. Handlin & M. Handlin eds. 1966). The Government emphasizes
that the amendment’s proponents believed they “Ought Never to be
deprived” of their arms, so long as they “Continue[d] honest and
Lawfull Subjects of Government.” Ibid. Even if the amendment
contemplated disarming dishonest and unlawful subjects, the
Government makes no effort to define those terms or explain why
they necessarily include the individuals covered by §922(g)(8). In
any event, evidence concerning what proponents behind an amendment
to a single state constitution believed is too paltry to define the
Second Amendment right. See Bruen , 597 U. S., at
46. 4 When Anti-Federalists
renewed Samuel Adams’ proposal, not only did the proposal fail, but
Adams himself voted against it. 6 Documentary History
1453. 5 The Government’s other
analogies suffer from the same flaws as the firearm storage laws.
It cites laws restricting firearm sales to and public carry by
various groups such as minors and intoxicated persons; laws
confiscating firearms from rioters; and laws disarming
insurrectionists and rebels. Brief for United States 22–27. These
laws target different groups of citizens, for different reasons,
and through different, less onerous burdens than §922(g)(8). See Bruen , 597 U. S., at 70 (explaining that regulations
“limit[ing] the intent for which one could carry arms, the manner
by which one carried arms, or the exceptional circumstances under
which one could not carry arms” do not justify “broadly
prohibit[ing] the public carry of commonly used firearms for
personal defense”). None establishes that the particular regulation
at issue here would have been within the bounds of the pre-existing
Second Amendment right. 6 The majority correctly
declines to consider Rahimi’s Commerce Clause challenge because he
did not raise it below. See Cutter v. Wilkinson , 544 U.S.
709 , 718, n. 7 (2005) (“[W]e are a court of review, not of
first view”). That said, I doubt that §922(g)(8) is a proper
exercise of Congress’s power under the Commerce Clause. See United States v. Lopez , 514 U.S.
549 , 585 (1995) (Thomas, J., concurring). 7 The only conceivably
relevant language in our precedents is the passing reference in Heller to laws banning felons and others from possessing
firearms. See 554 U. S., at 626–627, and n. 26. That
discussion is dicta. As for Bruen , the Court used the phrase
“ordinary, law-abiding citizens” merely to describe those who were
unable to publicly carry a firearm in New York. See, e.g .,
597 U. S., at 9, 15, 31–32, 71.

Summary:
Here is a summary of the Supreme Court case United States v. Rahimi:

Issue: Can an individual who is subject to a domestic violence restraining order and deemed a threat to their intimate partner or child be prohibited from possessing a firearm under the Second Amendment?

Holding: Yes. The Supreme Court upheld the federal statute that prohibits individuals under domestic violence restraining orders from possessing firearms if they are deemed a credible threat to their intimate partners or children.

Facts: Rahimi, who was subject to a restraining order due to a violent incident with his girlfriend and the mother of his child, challenged the constitutionality of the federal statute that prohibited him from possessing a firearm.

Reasoning: The Court found that similar firearm regulations existed at the time of the Second Amendment's ratification, suggesting that the regulation did not violate the right to bear arms. The Court also emphasized that Rahimi's violent conduct and the state court's findings justified the restriction.