United States v. Rahimi

P R E L I M I N A R Y P R I N T
Volume 602 U. S. Part 1
Pages 680–778
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OF
T H E S U P R E M E C O U R T
June 21, 2024
REBECCA A. WOMELDORF
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680 OCTOBER
TERM, 2023
Syllabus
UNITED STATES v. RAHIMI
certiorari
to the united states court of appeals for
the fth circuit
No. 22–915. Argued November 7, 2023—Decided June 21, 2024
Respondent Zackey Rahimi was indicted under 18 U. S. C. § 922(g)(8), a
federal statute that prohibits individuals subject to a domestic violence
restraining order from possessing a frearm. A prosecution under Sec-
tion 922(g)(8) may proceed only if the restraining order meets certain
statutory criteria. In particular, the order must either contain a fnd-
ing 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 concedes here that the restraining order against him
satisfies the statutory criteria, but argues that on its face Section
922(g)(8) violates the Second Amendment. The District Court denied
Rahimi's motion to dismiss the i ndic tment on Second Amendment
grounds. While Rahimi's case was on appeal, the Supreme Court
decided New York State Rife & Pistol Assn., Inc. v. Bruen, 597
U. S. 1. In light of Bruen, the Fifth Circuit reversed, concluding
that the Government had not shown that Section 922(g)(8) “fts within
our Nation's historical tradition of frearm regulation.” 61 F. 4th
443, 460.
Held: When an individual has been found by a court to pose a credible
threat to the physical safety of another, that individual may be tempo-
rarily disarmed consistent with the Second Amendment. Pp. 690–702.
(a) Since the founding, the Nation's frearm laws have included regu-
lations to stop individuals who threaten physical harm to others from
misusing frearms. As applied to the facts here, Section 922(g)(8) fts
within this tradition.
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. That right, however, “is not unlimited,” District
of Columbia v. Heller, 554 U. S. 570, 626. The reach of the Second
Amendment is not limited only to those arms that were in existence
at the founding. Id., 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 Amend-
ment permits more than just regulations identical to those existing in
1791.

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Under our precedent, the appropriate analysis involves considering
whether
the challenged regulation is consistent with the principles that
underpin the Nation's regulatory tradition. Bruen, 597 U. S., at 26–31.
When frearm regulation is challenged under the Second Amendment,
the Government must show that the restriction “is consistent with
the Nation's historical tradition of frearm regulation.” Id., at 24. 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 circum-
stances.” Id., at 29, and n. 7. Why and how the regulation burdens
the right are central to this inquiry. As Bruen explained, a challenged
regulation that does not precisely match its historical precursors “still
may be analogous enough to pass constitutional muster.” Id., at 30.
Pp. 690–692.
(b) Section 922(g)(8) survives Rahimi's challenge. Pp. 693–702.
(1) Rahimi's facial challenge to Section 922(g)(8) requires him to
“establish that no set of circumstances exists under which the Act would
be valid.” United States v. Salerno, 481 U. S. 739, 745. Here, Section
922(g)(8) is constitutional as applied to the facts of Rahimi's own case.
Rahimi has been found by a court to pose a credible threat to the physi-
cal safety of others, see § 922(g)(8)(C)(i), and the Government offers
ample evidence that the Second Amendment permits such individuals
to be disarmed. P. 693.
(2) The Court reviewed the history of American gun laws exten-
sively in Heller and Bruen. At common law people were barred from
misusing weapons to harm or menace others. Such conduct was often
addressed through ordinary criminal laws and civil actions, such as pro-
hibitions on fghting or private suits against individuals who threatened
others. By the 1700s and early 1800s, though, two distinct legal re-
gimes had developed that specifcally addressed frearms violence: the
surety laws and the “going armed” laws. Surety laws were a form of
“preventive justice,” 4 W. Blackstone, Commentaries on the Laws of
England 251 (10th ed. 1787), which authorized magistrates to require
individuals suspected of future misbehavior to post a bond. If an indi-
vidual failed to post a bond, he would be jailed. If the individual did
post a bond and then broke the peace, the bond would be forfeit.
Surety laws could be invoked to prevent all forms of violence, including
spousal abuse, and also targeted the misuse of frearms. These laws
often offered the accused signifcant procedural protections.
The “going armed” laws—a particular subset of the ancient common-
law prohibition on affrays, or fghting in public—provided a mechanism
for punishing those who had menaced others with frearms. Under
these laws, individuals were prohibited from “riding or going armed,
with dangerous or unusual weapons, [to] terrify[ ] the good people of the

682 UNITED
STATES v. RAHIMI
Syllabus
land.” Id., at 149. Those who did so faced forfeiture of their arms and
i
mprisonment. Prohibitions on going armed were incorporated into
American jurisprudence through the common law, and some States ex-
pressly codifed them. Pp. 693–698.
(3) Together, the surety and going armed laws confrm what com-
mon sense suggests: When an individual poses a clear threat of physical
violence to another, the threatening individual may be disarmed. Sec-
tion 922(g)(8) is not identical to these founding era regimes, but it does
not need to be. Like the surety and goi ng ar med laws, Sec ti on
922(g)(8)(C)(i) applies to individuals found by a court to threaten the
physical safety of another. This prohibition is “relevantly similar” to
those founding era regimes in both why and how it burdens the Second
Amendment right. 597 U. S., at 29. Section 922(g)(8) restricts gun use
to check 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 that Section 922(g)(8) imposes on the right to bear arms
also fts within the Nation's regulatory tradition. While the Court does
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, 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), which notably matches the similar judicial de-
terminations required in the surety and going armed laws. Moreover,
like surety bonds of limited duration, Section 922(g)(8) only prohibits
frearm possession so long as the defendant “is” subject to a restraining
order. Finally, the penalty—another relevant aspect of the burden—
also fts within the regulatory tradition. The going armed laws pro-
vided for imprisonment, 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) im-
poses is also permissible.
The Court's decisions in Heller and Bruen do not help Rahimi. While
Section 922(g)(8) bars individuals subject to restraining orders from pos-
sessing guns in the home, Heller never established a categorical rule
that the Constitution prohibits regulations that forbid frearm posses-
sion in the home. Indeed, Heller stated that many such prohibitions,
like those on the possession of frearms by “felons and the mentally ill,”
are “presumptively lawful.” 554 U. S., at 626, 627, n. 26. And
the Court's conclusion in Bruen that regulations like the surety laws
are not a proper historical analogue for a broad gun licensing regime
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683
Syllabus
does not mean that they cannot be an appropriate analogue for a narrow
one
. Pp. 698–700.
(4) The Fifth Circuit erred in reading Bruen to require a “historical
twin” rather than a “historical analogue.” 597 U. S., at 30. The panel
also misapplied the Court's precedents when evaluating Rahimi's facial
challenge. 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 the provision might raise constitutional
concerns. Pp. 700–701.
(5) Finally, the Court rejects the Government's contention that
Rahimi may be disarmed simply because he is not “responsible.” The
Court used this term in Heller and Bruen to describe the class of citi-
zens who undoubtedly enjoy the Second Amendment right. Those deci-
sions, however, did not defne the term and said nothing about the status
of citizens who were not “responsible.” Pp. 701–702.
61 F. 4th 443, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Alito,
Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, and Jackson, JJ.,
joined. Sotomayor, J., fled a concurring opinion, in which Kagan, J.,
joined, post, p. 702. Gorsuch, J., post, p. 708, Kavanaugh, J., post, p. 714,
Barrett, J., post, p. 737, and Jackson, J., post, p. 740, fled concurring
opinions. Thomas, J., fled a dissenting opinion, post, p. 747.
So l i ci t o r Gene ral Prel ogar arg ued the cause for the
United States. With her on the briefs were Acting Assist-
ant Attorney General Argentieri, Deputy Solicitor General
Fletcher, Vivek Suri, and William A. Glaser.
J. Matthew Wright argued the cause for respondent.
With him on the brief were Jason D. Hawkins, Kevin Joel
Page, Rachel Taft, T. W. Brown, and Brandon E. Beck.*
*Briefs of amici curiae urging reversal were fled for the State of Illi-
nois et al. by Kwame Raoul, Attorney General of Illinois, Jane Elinor Notz,
Solicitor General, Alex Hemmer, Deputy Solicitor General, and Mitchell
J. Ness, Assistant Attorney General, by Brian L. Schwalb, Attorney Gen-
eral of the District of Columbia, Caroline S. Van Zile, Solicitor General,
Ashwin P. Phatak, Principal Deputy Solicitor General, and Alexan-
dra Lichtenstein, Assistant Attorney General, and by the Attorneys Gen-
eral and other offcials for their respective jurisdictions as follows: Kris
Mayes of Arizona, Rob Bonta of California, Philip J. Weiser of Colorado,
William Tong of Connecticut, Patrick J. Griffn, Chief State's Attorney

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684 UNITED
STATES v. RAHIMI
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t.
A federal statute prohibits an individual subject to a do-
mestic violence restraining order from possessing a frearm
of Connecticut, Kathleen Jennings of Delaware, Anne E. Lopez of Hawaii,
Aaron M. Frey of Maine, Anthony G. Brown of Maryland, Andrea Joy
Campbell of Massachusetts, Dana Nessel of Michigan, Keith Ellison of
Minnesota, Aaron D. Ford of Nevada, Matthew J. Platkin of New Jersey,
Raúl Torrez of New Mexico, Letitia James of New York, Joshua H. Stein
of North Carolina, Edward E. Manibusan of the Northern Mariana Is-
lands, Ellen F. Rosenblum of Oregon, Michelle A. Henry of Pennsylvania,
Peter F. Neronha of Rhode Island, Charity R. Clark of Vermont, Robert
W. Ferguson of Washington, and Joshua L. Kaul of Wisconsin; for Califor-
nia Governor Gavin Newsom by James R. Sigel, David B. Sapp, and Brian
P. Goldman; for the City of New York et al. by Sylvia O. Hinds-Radix,
Richard Dearing, Claude S. Platton, Elina Druker, and Diana P. Cortes;
for AEquitas by Mary-Christine Sungaila; for the American Civil Liber-
ties Union Foundation by David D. Cole, Sandra S. Park, Ria Tabacco
Mar, Jennesa Calvo-Fr iedman, and Louise Melling; for the American
Medical Association et al. by Michael J. Dell and Marjorie E. Sheldon; for
Americans Against Gun Violence by Carly O. Alameda and Hilary C.
Krase; for the California Legislative Women's Caucus by Robin B. Jo-
hansen and Karen Getman; for the Center for Reproductive Rights by
Diana Kasdan and Michelle K. Moriarty; for the Citizens Crime Commis-
sion of New York City by Harry Sandick; for the DC Coalition Against
Domestic Violence et al. by Jason Stiehl, Lyndsay A. Gorton, and Micaela
Deming; for the Domestic Violence Legal Empowerment and Appeals
Project et al. by Michael Kim Krouse and Rosalyn Richter; for Educators
With Expertise in Domestic Violence Protective Orders et al. by Aaron
R. Marcu; for Everytown for Gun Safety by Alan Schoen feld, Eric A.
Tirschwell, Janet Carter, and William J. Taylor, Jr.; for Former State
Chief Justices et al. by Adam M. Katz, Adam S. Gershenson, Kathleen R.
Hartnett, and Julie M. Veroff; for the Giffords Law Center To Prevent
Gun Violence by Scott A. Edelman, Lee R. Crain, Mark J. Cherry, Esther
Sanchez-Gomez, and Leigh Rome; for Global Action on Gun Violence et al.
by Jonathan K. Baum, Christopher A. Cole, and Jonathan Lowy; for Gun
Violence and Domestic Violence Prevention Groups et al. by Michael R.
Dreeben and Douglas N. Letter; for the Houston Area Women's Center by
Constance H. Pfeiffer; for Legal Aid Chicago et al. by Stephen R. McAllis-
ter; for the March For Our Lives Action Fund by Jonathan L. Diesenhaus;
for the National Indigenous Women's Resource Center et al. by Mary

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685
Opinion of the Court
if that order includes a fnding 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
Kathryn Nagle; for the National League of Cities et al. by Lawrence Ro-
senthal; for the New York County Lawyers Association by Benjamin G.
Shatz, Jacqueline C. Wol ff, and Samantha J. Katze; for Prosecutor and
Law Enforcement Associations et al. by Carolyn F. Corwin and Christo-
pher M. Kimmel; for Prosecutors Against Gun Violence by Eric Del Pozo
and Joette Katz; for Public-Health Researchers et al. by Nicole A. Sahar-
sky; for Religious Leaders et al. by Emilie B. Cooper; for Second Amend-
ment Law Scholars by Donald B. Verrilli, Jr., Rachel G. Miller-Ziegler,
and Justin P. Raphael; for the Texas Advocacy Project et al. by C. Andrew
Weber and Brenda L. Clayton; for the Tarrant County Criminal District
Attorney et al. by Fredericka Sargent, Steven W. Conder, Karen L. Row-
den, and Gary Young; for the United States Conference of Catholic Bish-
ops by Mark C. Fleming; for Sen. Richard Blumenthal et al. by H. Christo-
pher Boehning; for Mary Anne Franks by Douglas M. Poland and Erin
K. Deeley; for Sen. Amy Klobuchar et al. by Michelle S. Kallen and
Joshua P. Riley; and for 97Percent by Constance Van Kley and Rylee
Sommers-Flanagan.
Briefs of amici curiae urging affrmance were fled for the Alameda
County Public Defenders et al. by Joshi Valentine; for the Bronx Defend-
ers Union et al. by Aimee Carlisle and David M. Porter; for the California
Rife & Pistol Association, Inc., et al. by C. D. Michel, Anna M. Barvir,
and Tiffany D. Cheuvront; for the Cato Institute et al. by Clark M. Neily
III, Anastasia P. Boden, and Thomas A. Berry; for the Center for Human
Liberty by David H. Thompson, Peter A. Patterson, and John D. Ohlen-
dorf; for the Center for Prosecutor Integrity by James E. Preston; for the
Crime Prevention Research Center by Steven W. Dulan; for the Firearms
Policy Coalition by Bradley A. Benbrook and Stephen M. Duvernay; for
the Foundation for Moral Law by John A. Eidsmoe and Roy S. Moore; for
the FPC Action Foundation by Joseph G. S. Greenlee and Cody J. Wisniew-
ski; for Gun Owners of America, Inc., et al. by Robert J. Olson, William J.
Olson, Jeremiah L. Morgan, and John I. Harris III; for Law Enforcement
Groups et al. by Dan M. Peterson; for the National African American Gun
Association, Inc., by Stephen P. Halbrook; for the National Association for
Gun Rights by Barry K. Arrington; for the National Rife Association of
America, Inc., by Erin M. Erhardt and Michael T. Jean; for the Phyllis
Schlafy Eagles et al. by Andew L. Schlafy; for Professors of Second
Amendment Law et al. by David B. Kopel and Konstadinos T. Moros; for

686 UNITED
STATES v. RAHIMI
Opinion of the Court
question is whether this provision may be enforced against
h
im 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 arg uing, and Rahimi became enraged. Br ief 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 watch-
ing the altercation, Rahimi paused to retrieve a gun from
under the passenger seat. C. M. took advantage of the op-
portunity to escape. Rahimi fred as she fed, 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 affdavit accompanying her appli-
cation, 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 re-
the Second Amendment Foundation by Edward Andrew Paltzik; for Wil-
liam English, Ph.D., et al. by Craig L. Uhrich and Serge Krimnus; and for
Angus Kirk McClellan, Ph.D., by Charles R. Flores.
Briefs of amici curiae were fled for the National Association of Federal
Defenders by Vincent J. Brunkow, Sarah Gannett, Judith Mizner, and
Timothy Shepherd; for Professors of History et al. by Mark D. Selwyn
and Todd C. Zubler; for Patrick J. Charles by Hugh E. McKay, L. Bradfeld
Hughes, and Shane Pennington; and for Nicholas J. Johnson by John
P. Krill, Jr.
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straining order against him. The order, entered with the
consent
of both parties, included a fnding 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 fndings, 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 impris-
oned or confned 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 approach-
ing 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 identifed him as the suspect
in a spate of at least fve additional shootings.
The frst, which occurred in December 2020, arose from
Rahimi's dealing in illegal drugs. After one of his custom-
ers “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 fred his gun in the air while driving through a resi-
dential neighborhood. A few weeks after that, Rahimi was
speeding on a highway near Arlington, Texas, when a truck
fashed its lights at him. Rahimi hit the brakes and cut
across traffc to chase the truck. Once off the highway, he
fred several times toward the truck and a nearby car before
feeing. Two weeks after that, Rahimi and a friend were
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688 UNITED
STATES v. RAHIMI
Opinion of the Court
dining at a roadside burger restaurant. When the restau-
rant
declined his friend's credit card, Rahimi pulled a gun
and shot into the air.
The police obtained a warrant to search Rahimi's resi-
dence. There they discovered a pistol, a rife, ammunition—
and a copy of the restraining order.
B
Rahimi was indicted on one count of possessing a frearm
while subject to a domestic violence restraining order, in
violation of 18 U. S. C. § 922(g)(8). At the time, such a viola-
tion was punishable by up to 10 years' imprisonment (since
amended to 15 years). § 924(a)(2); see Bipartisan Safer Com-
munities Act, Pub. L. 117–159, § 12004(c)(2), 136 Stat. 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 de-
fendant 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 defend-
ant'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 fnding
that the defendant “represents a credible threat to the physi-
cal 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
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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 fnding that
Rahimi represented “a credible threat to the physical safety”
of C. M. or her family. Id., at 2–3. The order also “explic-
itly 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 Sec-
tion 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 prece-
dent 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 Rife & Pistol Assn., Inc. v. Bruen, 597 U. S.
1 (2022). In Bruen, we explained that when a frearm regu-
lation is challenged under the Second Amendment, the Gov-
ernment must show that the restriction “is consistent with
the Nation's historical tradition of frearm regulation.” Id.,
at 24.
In light of Bruen, the panel withdrew the prior opinion
and ordered additional briefng. A new panel then heard
oral argument and reversed. 61 F. 4th 443, 448 (CA5 2023).
Surveying the evidence that the Government had identifed,
the panel concluded that Section 922(g)(8) does not ft within
our tradition of frearm regulation. Id., at 460–461. Judge
Ho wrote separately to express his view that the panel's
ruling did not confict with the interest in protecting peo-
ple from violent individuals. Id., at 461–462 (concurring
opinion).
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We granted certiorari. 600 U. S. ––– (2023)
II
W
hen a restraining order contains a fnding that an indi-
vidual poses a credible threat to the physical safety of an
intimate partner, that individual may—consistent with the
Second Amendment—be banned from possessing frearms
while the order is in effect. Since the founding, our Nation's
frearm laws have included provisions preventing individuals
who threaten physical harm to others from misusing fre-
arms. As applied to the facts of this case, Section 922(g)(8)
fts 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 codifed 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 Lexing-
ton and Concord, when the British governor dispatched sol-
diers 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 ob-
served, “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 Sec-
ond Amendment is not unlimited.” District of Columbia v.
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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 Black-
stone 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 what-
soever and for whatever purpose.” Ibid. At the founding,
the bearing of arms was subject to regulations ranging from
rules about frearm 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 carry-
ing concealed frearms. 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 frearm regulation” to help delineate the con-
tours of the right. Id., at 17. We explained that if a chal-
lenged regulation fts within that tradition, it is lawful under
the Second Amendment. We also clarifed 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 meth-
odology 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 con-
stitute bearable arms, even those that were not [yet] in exist-
ence.” Ibid. By that same logic, the Second Amendment

692 UNITED
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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 in-
volves considering whether the challenged regulation is con-
sistent 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 circum-
stances.” 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 frearm use to address particular prob-
lems, 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 ex-
tent 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 consti-
tutional 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
1
We also recognized in Bruen the “ongoing scholarly debate on whether
courts should primarily rely on the prevailing understanding of an individ-
ual right when the Fourteenth Amendment was ratifed in 1868 when de-
fning its scope (as well as the scope of the right against the Federal Gov-
ernment).” 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.
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B
Bear
ing 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 diffcult challenge to mount successfully,” because
it requires a defendant to “establish that no set of circum-
stances 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 Sec-
tion 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 frearm if his restraining order includes a
fnding 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 frearm if his re-
straining order “prohibits the use, attempted use, or threat-
ened 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 dis-
armament of individuals who pose a credible threat to the
physical safety of others. We need not decide whether regu-
lation under Section 922(g)(8)(C)(ii) is also permissible.
2
This Court reviewed the history of American gun laws ex-
tensively in Heller and Bruen. From the earliest days of
the common law, frearm regulations have included provi-
sions barring people from misusing weapons to harm or men-
ace 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,
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76 (K. B. 1686). Parliament began codifying prohibitions
agai
nst 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 King-
dome.” 14 Car. 2 c. 3, § 13 (1662); J. Greenlee, The Historical
Justifcation for Prohibiting Dangerous Persons From Pos-
sessing 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 Prot-
estants, 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 found-
ing, however, state constitutions and the Second Amendment
had largely eliminated governmental authority to disarm po-
litical 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 fghting or pri-
vate 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 re-

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gimes had developed that specifcally addressed frearms
v
iolence.
The frst 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 stip-
ulate with and to give full assurance . . . that such offence
. . . shall not happen[,] by fnding pledges or securities.” 4
Blackstone 251. In other words, the law authorized magis-
trates 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
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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 frearms. 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
fnd 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 specifc, authorizing the imposition of
bonds from individuals “[who went] armed with a dirk, dag-
ger, sword, pistol, or other offensive and dangerous weapon.”
Mass. Rev. Stat., ch. 134, § 16; see ibid. (marginal note) (ref-
erencing the earlier statute). At least nine other jurisdic-
tions did the same. See Bruen, 597 U. S., at 56, and n. 23.
These laws often offered the accused signifcant 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 reason-
able 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
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cause existed for the charge—summon the accused, who
cou
ld respond to the allegations. §§ 3–4. Bonds could not
be required for more than six months at a time, and an indi-
vidual 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 prevent-
ing violence before it occurred, a second regime provided a
mechanism for punishing those who had menaced others with
frearms. 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 ter-
rify,” 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 fghting in public, commenta-
tors 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 fghting and going armed—were often codi-
fed 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 classifed as an affray law or a distinct prohibi-
tion, 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 de-
leted). 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 fghting in public remains
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even now chargeable in Maryland). Moreover, at least four
St
ates—Massachusetts, New Hampshire, North Carolina, and
Virginia—expressly codifed prohibitions on going armed.
1786 Va. Acts ch. 21; 2 Laws of the Commonwealth of Massa-
chusetts 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 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 confrm
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 frearms by those found by a court to
present a threat to others fts 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 physi-
cal violence, just as the surety and going armed laws do.
Unl ike the reg u lati on str uck down i n Br uen, Sec ti on
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 fts within our regulatory tradition. While we do
not suggest that the Second Amendment prohibits the enact-
ment 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
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922(g)(8) applies only once a court has found that the defend-
ant
“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 frearm possession so long
as the defendant “ is” subjec t to a restrai ni ng 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 bur-
den—also fts 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 affrm, because Sec-
tion 922(g)(8) bars individuals subject to restraining orders
from possessing guns in the home, and in Heller we invali-
dated 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 frearm possession in the home. In
fact, our opinion stated that many such prohibitions, like
those on the possession of frearms 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 re-
gimes, we observed, was that the surety laws “presumed
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that individuals had a right to . . . carry,” whereas New
Y
ork'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 pre-
sumption. 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 frearm regulation distinguishes cit-
izens who have been found to pose a credible threat to the
physical safety of others from those who have not. The con-
clusion 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 frearm regulation allows the Government to disarm in-
dividuals 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 suffciently similar to place that provision in our histori-
cal 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 767 (opinion of Thomas, J.). For the
reasons we have set forth, however, we conclude that Section
922(g)(8) satisfes that part of the inquiry as well. See
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supra, at 692, 698–700. As we said in Bruen, a “historical
tw
in” 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. Second, it did
not correctly apply our precedents governing facial chal-
lenges. 61 F. 4th, at 453. As we have said in other con-
texts, “[w]hen legislation and the Constitution brush up
against each other, [a court's] task is to seek harmony, not to
manufacture confict.” 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 “re-
sponsible.” 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 “re-
sponsible” to describe the class of ordinary citizens who un-
2
Many of the potential faults that the Fifth Circuit identifes in Section
922(g)(8) appear to sound in due process rather than the Second Amend-
ment. 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).
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doubtedly enjoy the Second Amendment right. See, e. g.,
H
eller, 554 U. S., at 635; Bruen, 597 U. S., at 70. But those
decisions did not defne 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 “un-
dertake 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 indi-
vidual found by a court to pose a credible threat to the physi-
cal 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.
Justice Sotomayor, with whom Justice Kagan joins,
concurring.
Today, the Court applies its decision in New York State
Rife & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), for the
frst time. Although I continue to believe that Bruen was
wrongly decided, see id., at 83–133 (Breyer, J., joined by So-
tomayor and Kagan, JJ., dissenting), I join the Court's opin-
ion 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 692. 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
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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 re-
straining order from possessing a frearm, so long as certain
criteria are met. See ante, at 688. Section 922(g)(8) is
wholly consistent with the Nation's history and tradition of
frearm regulation.
The Court correctly concludes that “the Second Amend-
ment permits the disarmament of individuals who pose a
credible threat to the physical safety of others.” Ante, at
693. That conclusion fnds 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 mech-
anism for punishing those who had menaced others with
frearms” through forfeiture of the arms or imprisonment.
Ante, at 697. “Taken together, the surety and going armed
laws confrm what common sense suggests: When an individ-
ual poses a clear threat of physical violence to another, the
threatening individual may be disarmed.” Ante, at 698.
Section 922(g)(8)'s prohibition on gun possession for individ-
uals subject to domestic violence restraining orders is part
of that “tradition of frearm regulation allow[ing] the Gov-
ernment to disarm individuals who present a credible threat
to the physical safety of others,” ante, at 700, 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 clarifes an important method-
olog ical point that bears repeating: Rather than asking
whether a present-day gun regulation has a precise his-
torical analogue, courts applying Bruen should “conside[r]
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whether the challenged regulation is consistent with the
p
rinciples that underpin our regulatory tradition.” Ante,
at 692 (emphasis added); see also ibid. (“The law must com-
port 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 Gover nment has not identi fied a foundi ng-era or
Reconstruction-era law that specifcally 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
698, it “restricts gun use to mitigate demonstrated threats
of physical violence, just as the surety and going armed laws
d[id],” ibid. That shared principle is suffcient.
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 764 (opinion
of Thomas, J.) (“Although surety laws shared a common jus-
tifcation with § 922(g)(8), surety laws imposed a materially
different burden”); post, at 771 (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 (interper-
sonal violence in the home)”). The dissent urges a close look
“at the historical law's justifcation as articulated during the
relevant time period,” post, at 774, 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 761. The dissent criti-
cizes 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 767.
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If the dissent's interpretation of Bruen were the law, then
Br
uen 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 nec-
essary 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 691.
This case lays bare the perils of the dissent's approach.
Because the dissent concludes that Ҥ 922(g)(8) addresses a
societal problem—the risk of interpersonal violence—`that
has persisted since the 18th century,' ” post, at 752–753, it in-
sists that the means of addressing that problem cannot be
“ `materially different' ” from the means that existed in the
18th century, post, at 753. 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 De-
bates on the Second Amendment 117 (J. Tucker, B. Hacker, &
M. Vining eds. 2019) (explaining that guns in the 18th cen-
tury took a long time to load, typically fred only one shot,
and often misfred). According to the dissent, the solution
cannot be “materially different” even when societal percep-
tion of the problem has changed, and even if it is now clear
to everyone that the historical means of addressing the prob-
lem 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 accountabil-
ity, 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 gener-

706 UNITED
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Sotomayor, J., concurring
ation'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 (par-
ticularly history predating the inclusion of women and people
of color as full members of the polity) impoverishes constitu-
tional interpretation and hamstrings our democracy.
III
The Court today clarifes Bruen's historical inquiry and
rejects the dissent's exacting historical test. I welcome that
development. That bei ng said, I remai n 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 “regu-
larly use[s] . . . in cases involving other constitutional provi-
sions,” id., at 106, the constitutionality of § 922(g)(8) is even
more readily apparent.*
To start, the Government has a compelling interest in
keeping frearms out of the hands of domestic abusers. A
woman who lives in a house with a domestic abuser is fve
*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.
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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 over-
stated. 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 frearm by a spouse or
other intimate partner in 2020). Because domestic violence
is rarely confned 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
offcers, causing more offcer deaths with a frearm 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 Offcers Responded to Dis-
patched 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 tai-
lored to the v it a l objec tive of keepi ng g uns out of the
hands of domestic abusers. See ante, at 688, 699. 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
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that question would of course involve other considerations
than
whether Bruen was rightly decided. Whether consid-
ered under Bruen or under means-end scrutiny, § 922(g)(8)
clears the constitutional bar. I join in full the Court's opin-
ion, which offers a more helpful model than the dissent for
lower courts struggling to apply Bruen.
Justice Gorsuch, concurring.
Mr. Rahimi pursues the “most diffcult 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 applica-
tions.” 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 693.
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 691 (quoting
New York State Rife & Pistol Assn., Inc. v. Bruen, 597 U. S.
1, 22 (2022)). As this Court has recognized, too, the Amend-
ment'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 “consist-
ent with this Nation's historical tradition of frearms regula-
tion.” 597 U. S., at 17; see ante, at 691.
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 frearm regulations.
To prevail, the government need not show that the current

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Gorsuch, J., concurring
law is a “ `dead ringer' ” for some historical analogue. Ante,
at
692 (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 recog-
nized regulation. Id., at 29; see ante, at 692. And it must
show that the burden imposed by the current law “is compara-
bly justifed.” Bruen, 597 U. S., at 29; see ante, at 692.
Why do we require those showings? Through them, we
seek to honor the fact that the Second Amendment “codifed
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 ratifed the Second Amend-
ment, 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 frst law of nature,” and “in most governments[,] it has
been the study of rulers to confne this right within the nar-
rowest 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 691—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
i nv ite new cha l lenges, but the Constituti on 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–
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405 (2012); Caetano v. Massachusetts, 577 U. S. 411, 411–412
(2016)
(per curiam). If changes are to be made to the Con-
stitution'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 719–729 (Kavanaugh,
J., concurring) (offering examples). And when doing so, liti-
gants and courts “must exercise care.” See post, at 739, 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 parties ask us to sustain some mod-
ern 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 specifc 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 his-
tory “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.”
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Ibid. As there, so too here: Courts must proceed with
care
in making comparisons to historic frearms 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 re-
strictions 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 699. 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 fnds 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 differ-
ently. Post, at 751 (Thomas, J., dissenting). But if reason-
able minds can disagree whether § 922(g)(8) is analogous to
past practices originally understood to fall outside the Sec-
ond Amendment's scope, we at least agree that is the only
proper question a court may ask. Post, at 750. Discerning
what the original meaning of the Constitution requires in
this or that case may sometimes be diffcult. Asking that
question, however, at least keeps judges in their proper
lane, seeking to honor the supreme law the people have or-
dained rather than substituting our will for theirs. And
whatever indeterminacy may be associated with seeking to
honor the Constitution's original meaning in modern dis-
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putes, that path offers surer footing than any other this
Cour
t 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 ad-
herence 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
frearm regulations under a two-step test that quickly “de-
volved” into an interest-balancing inquiry, where courts
would weigh a law's burden on the right against the benefts
the law offered. See Rogers v. Grewal, 590 U. S. 996, 999–
1000, and n. 1 (2020) (Thomas, J., joined by Kavanaugh, J.,
dissenting from denial of certiorari); 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 govern-
ment fare under that regime? In one circuit, it had an “un-
defeated, 50–0 record.” Id., at 1167, n. 8 (VanDyke, J., dis-
senting). 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
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stray far from the Constitution's promise. See Heller, 554
U
. S., at 634.
One more point: Our resolution of Mr. Rahimi's facial chal-
lenge 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 fnding that he poses
a “credible threat” to another's physical safety. § 922(g)(8)
(C)(i); see ante, at 693. We do not resolve whether the gov-
ernment may disarm an individual permanently. See ante,
at 699 (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 frearm in self-defense. Notably, the surety laws that in-
form 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 697; see also post, at 769
(Thomas, J., dissenting). Nor do we purport to approve in
advance other laws denying frearms on a categorical basis
to any group of persons a legislature happens to deem, as
the government puts it, “not `responsible.' ” Ante, at 701
(quoting Brief for United States 6); see Tr. of Oral Arg. 31–
32; see also post, at 773 (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 oth-
ers like them) because we cannot. Article III of the Con-
stitution 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 law-
ful scope. Nor should future litigants and courts read any
more into our decision than that. As this Court has long
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recognized, what we say in our opinions must “be taken in
connec
tion 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. Dav-
enport, 596 U. S. 118, 141 (2022).
Among all the opinions issued in this case, its central mes-
sages should not be lost. The Court reinforces the focus on
text, history, and tradition, following exactly the path we
described in Bruen. Ante, at 690–692. 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 702 (em-
phasis added). With these observations, I am pleased to
concur.
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 examin-
ing text, pre-ratifcation and post-ratifcation 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 Sec-
ond Amendment cases. I add this concurring opinion to re-
view the proper roles of text, history, and precedent in
constitutional interpretation.
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I
The
American people established an enduring American
Constitution. The frst and most important rule in constitu-
tional interpretation is to heed the text—that is, the actual
words of the Constitution—and to interpret that text accord-
ing 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 docu-
ment of majestic specifcity 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 Mem-
ber of the House. The same for the Senate. Appropria-
tions are made by law. Bicameralism and presentment.
The Presidential veto. The Presidential pardon. The Pres-
ident 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 confrms principal
executive offcers. 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. Con-
gress meets at noon on January 3rd unless otherwise
specifed by Congress. The District of Columbia votes in
Presidential elections. The list goes on.
Those and many other constitutional provisions are rela-
tively clear. And when the “framers of the Constitution em-
ployed words in their natural sense; and where they are plain
and clear, resort to collateral aids to interpretation is unnec-
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essary 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 specifcally
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 opin-
ion.) For example, the First Amendment provides that
“Congress shall make no law” “abridging the freedom of
speech.” And the Second Amendment, at issue here, guar-
antees that “the right of the people to keep and bear Arms”
“shall not be infringed.”
Read literally, those Amendments might seem to grant ab-
solute 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 Elec-
tion 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, defama-
tion, 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
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Kavanaugh, J., concurring
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.” Dis-
trict of Columbia v. Heller, 554 U. S. 570, 626 (2008).
II
A recurring and diffcult 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
ratifcation that may help the interpreter discern the mean-
ing 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 sup-
1
There are two ways to frame this point—either (i) determining the
exceptions to a constitutional right or (ii) determining the affrmative
scope or contours of that constitutional right. Either way, the analysis is
the same—does the constitutional provision, as originally understood, per-
mit 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 ”).
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ply 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 interpre-
tation 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
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. Sedi-
tion Act of 1798, ch. 74, 1 Stat. 596. In some cases, there may be debate
about whether the relevant text is suffciently 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 histor ical
practices.
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over time amply demonstrate, precedent matters a great
dea
l in constitutional interpretation.
I now turn to explaining how courts apply pre-ratifcation
history, post-ratifcation history, and precedent when analyz-
ing vague constitutional text.
A
Pre-ratifcation history. When interpreting vague con-
stitutional text, the Court typically scrutinizes the stated in-
tentions and understandings of the Framers and Ratifers
of the Constitution (or, as relevant, the Amendments). The
Court also looks to the understandings of the American peo-
ple from the pertinent ratifcation 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-ratifcation history
in the American Colonies, including pre-ratifcation laws and
practices. And the Court pays particular attention to the
historical laws and practices in the United States from
Independence in 1776 until ratifcation in 1788 or 1791. Pre-
ratifcation American history can shed light on constitutional
meaning in various ways.
For example, some provisions of the Constitution use lan-
guage that appeared in the Articles of Confederation or state
constitutional provisions. And when the language that ap-
peared in the Articles of Confederation or in state constitu-
tions is the same as or similar to the language in the U. S.
Constitution, the history of how people understood the lan-
guage in the Articles or state constitutions can inform inter-
pretation 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
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instead borrowed from the Articles of Confederation” as evi-
denced
by their use of “closely parallel” language); District
of Columbia v. Heller, 554 U. S. 570, 600–601 (2008) (“Our
interpretation is confrmed by analogous arms-bearing rights
in state constitutions that preceded and immediately fol-
lowed 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-ratifcation national or state laws and
practices may sometimes help an interpreter discern the
meaning of particular constitutional provisions. Those pre-
ratifcation American laws and practices formed part of the
foundation on which the Framers constructed the Constitu-
tion 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 confict with federal
law. See Art. VI.
On the other hand, some pre-ratifcation history can be
probative of what the Constitution does not mean. The
Framers drafted and approved many provisions of the Con-
stitution precisely to depart from rather than adhere to cer-
tain pre-ratifcation 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 frst 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
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in the summer of 1787, they sought to create a cohesive na-
ti
onal 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 Gov-
ernment with a National Executive, National Judiciary, and
a National Legislature” (quotation marks omitted)).
The pre-ratifcation history of America's many objections
to British laws and the system of oppressive British rule
over the Colonies—identifed most prominently in the Decla-
ration 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 offces, 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 Offces during good Behaviour, and
shall, at stated Times, receive for their Services, a Compen-
sation, which shall not be diminished during their Continu-
ance in Offce”); 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 Brit-
ish Constitution”).
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This Court has recognized, for example, that no “purpose
i
n ratifying the Bill of Rights was clearer than that of secur-
ing for the people of the United States much greater freedom
of religion, expression, assembly, and petition than the peo-
ple of Great Britain had ever enjoyed.” Bridges v. Califor-
nia, 314 U. S. 252, 265 (1941). Ratifed as it was “while
the memory of many oppressive English restrictions on the
enumerated liberties was still fresh,” the Bill of Rights “can-
not reasonably be taken as approving prevalent English
practices.” Ibid.; see, e. g., Hosanna-Tabor Evangelical Lu-
theran Church and School v. EEOC, 565 U. S. 171, 183 (2012)
(“Familiar with life under the established Church of Eng-
land, the founding generation sought to foreclose the possi-
bility 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 re-
fected America's rejection of the English common law rule
that a “person charged with treason or felony was denied the
aid of counsel”).
3
3
To be sure, as the Court's cases reveal, pre-ratifcation English law and
practices may supply background for some constitutional provisions. But
the Constitution, including the Bill of Rights, did not purport to take Eng-
lish law or history wholesale and silently download it into the U. S. Consti-
tution. 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, how-
ever, 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, re-
fexively resorting to English law or history without careful analysis can
sometimes be problematic because America had fought a war—and would
soon fght 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”?).
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The Equal Protection Clause provides another example.
Rati
fed 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-ratifcation American history—that is, pre-
ratifcation laws, practices, and understandings—can inform
interpretation of vague constitutional provisions in the origi-
nal Constitution and Bill of Rights. The same principle of
looking to relevant pre-ratifcation history applies when in-
terpreting broadly worded language in the later amend-
ments, including the Fourteenth Amendment ratifed in 1868.
But in using pre-ratifcation 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-ratifcation history. As the Framers made clear,
and as this Court has stated time and again for more than
two centuries, post-ratifcation 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-
ratifcation history is elusive or inconclusive, post-ratifcation
history becomes especially important. Indeed, absent prec-
edent, 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 ratifcation, the National Government and the state
governments began interpreting and applying the Constitu-
tion'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 wel-
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fare, those laws and practices have often refected and rein-
forced
common understandings of the Constitution's authori-
zations and limitations.
Post-ratifcation interpretations and applications by gov-
ernment actors—at least when reasonably consistent and
longstanding—can be probative of the meaning of vague con-
stitutional 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) (“offcers, law-makers and citi-
zens naturally adjust themselves to any long-continued ac-
tion” of the government “on the presumption that” unconsti-
tutional “acts would not have been allowed to be so often
repeated as to crystallize into a regular practice”); McPher-
son 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
4
Post-ratifcation history is sometimes also referred to as tradition, liq-
uidation, 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 defne 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-
ratifcation history, those precedents do not supply a one-size-fts-all an-
swer 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. Re-
spected scholars are continuing to undertake careful analysis. See gener-
ally J. Alicea, Practice-Based Constitutional Theories, 133 Yale L. J. 568
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Importantly, the Framers themselves intended that post-
rati
fcation history would shed light on the meaning of vague
constitutional text. They understood that some constitu-
tional 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-ratifcation history would be
a proper and important tool to help constitutional interpret-
ers 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. M cCull och v. Mar y l and, 4 Wheat. 316 (1819).
Writing for the Court, Chief Justice Marshall invoked post-
ratifcation 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 leg-
islatures,” and an “exposition of the constitution, deliberately
established by legislative acts, on the faith of which an im-
mense property has been advanced, ought not to be lightly
disregarded.” Ibid. Marshall added: The “respective pow-
ers of those who are equally the representatives of the peo-
ple, are to be adjusted; if not put at rest by the practice of
(2023); R. Barnett & L. Solum, Originalism After Dobbs, Bruen, and Ken-
nedy: 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.
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the government, ought to receive a considerable impression
from
that practice.” Ibid.
In relying on post-ratifcation history as a proper tool to
discern constitutional meaning, Madison and Marshall make
for a formidable duo. Moving from distant American his-
tory to more recent times, one can add Justice Scalia.
Throughout his consequential 30-year tenure on this Court,
Justice Scalia repeatedly emphasized that constitutional in-
terpretation must take account of text, pre-ratifcation his-
tory, and post-ratifcation history—the last of which he often
referred to as “tradition.” In his words, when judges in-
terpret 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 refect “the principles
adhered to, over time, by the American people, rather than
those favored by the personal (and necessarily shifting) phil-
osophical 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-ratifcation history and tradition.
5
In Heller,
5
Justice Scalia's opinions “made extensive use of post-ratifcation his-
tory,” and “his assessment of post-ratifcation 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. Ameri-
can 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
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Justice Scalia wrote for the Court that “a critical tool of con-
stituti
onal interpretation” is “the examination of a variety of
legal and other sources to determine the public understand-
ing of a legal text in the period after its enactment or ratif-
cation.” 554 U. S., at 605 (emphasis in original); see also
ibid. (“We now address how the Second Amendment was in-
terpreted from immediately after its ratifcation 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 indi-
cation of what fundamental beliefs it was intended to en-
shrine.” 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 fg-
ured out.” Rutan, 497 U. S., at 95–96 (Scalia, J., dissenting)
(emphasis in original).
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).
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As leading actors and theorists in the earliest and latest
chapters
of the American constitutional story, Madison, Mar-
shall, and Scalia made clear that courts should look to
post-ratifcation history as well as pre-ratifcation 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 repeat-
edly employed post-ratifcation history to determine the
meaning of vague constitutional text. Reliance on post-
ratifcation history “has shaped scores of Court cases span-
ning 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. Com-
munity Financial Services Assn. of America, Ltd., 601 U. S.
416, 441–445 (2024) (Kagan, J., concurring); Trump v. Ander-
son, 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 Rife & Pistol Assn., Inc. v. Bruen, 597 U. S.
1, 35–37, 50–70 (2022); City of Austin v. Reagan Nat. Adver-
tising of Austin, LLC, 596 U. S. 61, 75 (2022); Houston Com-
munity 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,
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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 provi-
sion for the frst time. Rather, a substantial body of Su-
preme Court precedent already exists for many provisions
of the Constitution.
Precedent is fundamental to day-to-day constitutional de-
cisionmaking in this Court and every American court. The
“judicial Power” established in Article III incorporates the
6
The Court has similarly relied on history when deciding cases involv-
ing 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 as-
serted substantive right. The Court has recognized exceptions to that
textual baseline, but in doing so has regularly observed that the Four-
teenth Amendment “specially protects those fundamental rights and liber-
ties which are, objectively, deeply rooted in this Nation's history and tradi-
tion.” 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
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730 UNITED
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principle of stare decisis, both vertical and horizontal. As
H
amilton 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 defne 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 signifcant 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 Constitu-
tion's text and history. Therefore, the text, as well as pre-
ratifcation and post-ratifcation history, may appropriately
function as a gravitational pull on the Court's interpretation
of precedent. See Free Enterprise Fund v. Public Com-
pany Accounting Oversight Bd., 537 F. 3d 667, 698 (CADC
2008) (Kavanaugh, J., dissenting) (“We should resolve ques-
tions about the scope of those precedents in light of and
in the direction of the constitutional text and constitutional
history”).
But the frst stop in this Court's constitutional decision-
making 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.
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III
Some
say that courts should determine exceptions to
broadly worded individua l r ights, 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 interpretati on of broadly
worded or vague constitutional text usually do not say so
explicitly (although some do). Rather, they support a bal-
ancing approach variously known as means-end scrutiny,
heightened scrutiny, tiers of scrutiny, rational basis with
bite, or strict or intermediate or intermediate-plus or rigor-
ous or skeptical scrutiny. Whatever the label of the day,
that balancing approach is policy by another name. It re-
quires judges to weigh the benefts against the burdens of a
law and to uphold the law as constitutional if, in the judge's
view, the law is suffciently 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 ap-
proach to constitutional interpretation departs from what
Framers such as Madison stated, what jurists such as Mar-
shall and Scalia did, what judges as umpires should strive to
do, and what this Court has actually done across the consti-
tutional landscape for the last two centuries.
The balancing tests (heightened scrutiny and the like) are
a relatively modern judicial innovation in constitutional deci-
sionmaking. 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 Com-
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munist speech cases, “rather than as the result of a consid-
ered
judgment.” Simon & Schuster, Inc. v. Members of
N. Y. State Crime Victims Bd., 502 U. S. 105, 125 (1991) (Ken-
nedy, 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 de-
termine 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 his-
tory, 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
7
The Court has articulated a heightened-scrutiny test in some pockets
of free-speech jurisprudence. But even when invoking heightened scru-
tiny 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 ra-
cially discriminatory laws and practices.
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balancing approach requires judges to weigh the benefts 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 offcers “con-
cerning 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 un-
comfortably 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-defned. 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 Sca-
lia'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 fnding of weighty public interest.”

734 UNITED
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Kavanaugh, J., concurring
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' as-
sessments of its usefulness is no constitutional guarantee at
all.” 554 U. S. 570, 634 (2008).
Some respond that history can be diffcult 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 constitu-
tional language. A history-based methodology supplies di-
rection 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 pe rfec t mean s of restrai ni ng ar istocratic judicia l
Constitution-writing; but whether it is the best means avail-
able in an imperfect world.” McDonald, 561 U. S., at 804
(Scalia, J., concurring) (emphasis in original). And the his-
torical approach is superior to judicial policymaking. The
historical approach “depends upon a body of evidence suscep-
tible 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 peo-
ple.” Id., at 805.
IV
This Court's Second Amendment jurisprudence has care-
fully followed and reinforced the Court's longstanding ap-
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735
Kavanaugh, J., concurring
proach to constitutional interpretation—relying on text, pre-
rati
fcation and post-ratifcation 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 what-
soever 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 his-
torical 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 weap-
ons 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) “long-
standing prohibitions on the possession of frearms by felons
and the mentally ill, or laws forbidding the carrying of fre-
arms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifcations on
the commercial sale of arms” are presumptively constitu-
tional. 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 “long-
standing regulatory measures” identifed in Heller. 561
U. S. 742, 786 (2010) (plurality opinion).
Then, in Bruen, the Court repeated that the “Nation's his-
torical tradition of frearm regulation” guides the constitu-
tional analysis of gun regulations and exceptions to the right
to bear arms. 597 U. S. 1, 17 (2022); see id., at 79–81 (Kava-
naugh, J., concurring).
Th is Cour t's approach i n those three recent Second
Amendment cases—and in the Court's opinion today—is en-
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tirely consistent with the Court's longstanding reliance on
h
istory and precedent to determine the meaning of vague
constitutional text. Heller rested on “constitutional text
and history,” ante, at 691 (quotation marks omitted), and laid
the foundation for McDonald and then Bruen.
In today's case, the Court carefully builds on Heller, Mc-
Donald, 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 692 (quotation marks omit-
ted). The Court examines “our historical tradition of fre-
arm regulation,” ante, at 691 (quotation marks omitted), and
correctly holds that America's “tradition of frearm regula-
tion allows the Government to disarm individuals who pres-
ent a credible threat to the physical safety of others,” ante,
at 700. The law before us “fts neatly within the tradition
the surety and going armed laws represent.” Ante, at 698.
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). Decid-
ing constitutional cases in a still-developing area of this
Court's jurisprudence can sometimes be diffcult. But that
is not a permission slip for a judge to let constitutional analy-
sis morph into policy preferences under the guise of a balanc-
ing test that churns out the judge's own policy beliefs.
***
As exemplifed by Heller, McDonald, Bruen, and the
Court's opinion today, constitutional interpretation properly
takes account of text, pre-ratifcation and post-ratifcation
history, and precedent. Those are the tools of the trade for
an American judge interpreting the American Constitution.
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737
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Of course, diffcult 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 con-
stitutional cases, text, history, and precedent must remain
paramount.
Justice Barrett, concurring.
Despite its unqualifed text, the Second Amendment is not
absolute. It codifed 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 defne the scope of “the right to keep and bear arms”
as it was originally understood; to identify them, courts must
examine our “historical tradition of frearm regulation.”
New York State Rife & 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 affrmatively 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 fxed at
the time of its ratifcation and that the “discoverable histori-
cal meaning . . . has legal signifcance and is authoritative in
most circumstances.” K. Whittington, Originalism: A Criti-
cal Introduction, 82 Ford. L. Rev. 375, 378 (2013) (Whitting-
ton). Ratifcation is a democratic act that renders constitu-
tional 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 ratifcation of the text;
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that backdrop illuminates the meaning of the enacted law.
History
(or tradition) that long postdates ratifcation 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 ”; “liq-
uidate ambiguous constitutional provisions”; provide persua-
sive evidence of the original meaning; and, if stare decisis
applies, control the outcome. See Vidal v. Elster, 602 U. S.
286, 323 (2024) (Barrett, J., concurring in part). But gen-
erally speaking, the use of postenactment history requires
some justifcation 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 rati-
fcation may subsequent practice illuminate original public
meaning?”). My doubts were not about whether “tradi-
tion,” 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 cen-
tury to establish the original meaning of the Bill of Rights”).
As I have explained elsewhere, evidence of “tradition” un-
moored from original meaning is not binding law. Vidal,
602 U. S., at 323–324 (Barrett, J., concurring in part). 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 eluci-
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dates 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 peo-
ple enshrined in our fundamental law.* 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 diffculty 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 “regu-
latory 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, im-
posing a test that demands overly specifc analogues has se-
rious problems. To name two: It forces 21st-century regula-
tions to follow late-18th-century policy choices, giving us “a
law trapped in amber.” Ante, at 691. And it assumes that
founding-era legislatures maximally exercised their power to
*To my mind, this use of history walks a fne line between original
meaning (which controls) and expectations about how the text would apply
(which do not). See Whittington 383 (“Specifc 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 constitu-
tional rule can help illuminate its original scope, an interpreter must exer-
cise care in considering them. Id., at 385–386. In the Second Amend-
ment context, particular gun regulations—even if from the ratifcation
era—do not themselves have the status of constitutional law.
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regulate, thereby adopting a “use it or lose it” view of legis-
lative
authority. Such assumptions are fawed, and original-
ism 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 defnition” 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
323–324 (Barrett, J., concurring in part); 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 his-
tory, 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 frearm laws
have i ncluded prov isi ons preventi ng i ndiv idua ls who
threaten physical harm to others from misusing frearms.”
Ante, at 690; see also Kanter v. Barr, 919 F. 3d 437, 451, 464–
465 (CA7 2019) (Barrett, J., dissenting) (“History is consist-
ent with common sense: it demonstrates that legislatures
have the power to prohibit dangerous people from possessing
guns”). Section 922(g)(8)(C)(i) fts well within that princi-
ple; therefore, Rahimi's facial challenge fails. Harder level-
of-generality problems can await another day.
Justice Jackson, concurring.
This case tests our Second Amendment jurisprudence as
shaped in particular by New York State Rife & Pistol Assn.,
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Jackson, J., concurring
Inc. v. Bruen, 597 U. S. 1 (2022). I disagree with the meth-
odolog
y 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 diffculty faced by judges
on the ground. Make no mistake: Today's effort to clear up
“misunderst[andings],” ante, at 691, 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 in-
quiry that Bruen requires. Ante, at 691–692. We empha-
size that the Second Amendment is “not . . . a law trapped
in amber.” Ante, at 691. 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.' ” Ante, at 692 (quot-
ing Bruen, 597 U. S., at 30). Gun regulations need only
“comport with the principles underlying the Second Amend-
ment.” Ante, at 692. 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 estab-
lish 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
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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
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 frearms 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 encom-
pass numerous, often dispositive, diffcult questions”); Atkinson v. Gar-
land, 70 F. 4th 1018, 1024 (CA7 2023) (“[T]he historical analysis required
by Bruen will be diffcult and no doubt yield some measure of indetermi-
nancy”); 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 diffcult to apply as
precedent”); United States v. Sing-Ledezma, 706 F. Supp. 3d 650, 655
(WD Tex. 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 anal-
yses called for by Bruen. . . . The analytical construct specifed by Bruen
is thus a diffcult one for non-historians”); United States v. Jackson,
661 F. Supp. 3d 392, 406 (Md. 2023) (noti ng “ the cha l lenges cre-

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743
Jackson, J., concurring
history-and-tradition test is burdensome (though that is no
sma
ll thing to courts with heavier caseloads and fewer re-
sources 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 re-
quires of them. Scholars report that lower courts applying
Bruen's approach have been unable to produce “consistent,
principled results,” Brief for Second Amendment Law Schol-
ars as Amici Curiae 4, and, in fact, they “have come to con-
ficting 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 in-
disputable that, after Bruen, “confusion plagu[es] the lower
courts.” Id., at 6.
II
This discord is striking when compared to the relative har-
mony that had developed prior to Bruen. To be sure, our
decision in District of Columbia v. Heller, 554 U. S. 570
(2008), which frst 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 Amend-
ment did not reach possession of frearms for purely pri-
vate 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 frearm regulation was consistent with
the Second Amendment did so using a two-step framework
ated 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 frearm is found”).
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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, frst, 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 consist-
ent with the Nation's historical tradition of frearm regula-
tion.” Ibid.
No one seems to question that “[h]istory has a role to play
in Second Amendment analysis.” Ante, at 706 (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 pro-
duce—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 rep-
resentative historical analogue,” Bruen, 597 U. S., at 30 (em-
phasis 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 tradi-
tion of disarming people subject to a no-contact order related
to domestic violence.” Supp. Brief for Appellant in No. 21–
11001 (CA5), p. 22 (emphasis deleted). The Government
then proffered what it maintained were suffcient historical
analogues to 18 U. S. C. § 922(g)(8), including surety and
going armed laws. Supp. Brief for Appellee in No. 21–11001
2
It is not clear what qualifes 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 histori-
ans, casting about for similar historical circumstances.
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(CA5), pp. 33, n. 2, 37–41. 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 beneft
of today's decision, in which we hold that the Government
had in fact offered “ample evidence that the Second Amend-
ment permits the disarmament of individuals who pose a
credible threat to the physical safety of others.” Ante, at
693. But even setting aside whether the historical examples
the Government found were suffciently analogous, just can-
vassing the universe of historical records and gauging the
suffciency of such evidence is an exceedingly diffcult task.
3
Consistent analyses and outcomes are likely to remain elu-
sive because whether Bruen's test is satisfed in a particu-
lar case seems to depend on the suitability of whatever his-
torical 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
clarifed.
And the unresolved questions hardly end there. Who is
protected by the Second Amendment, from a historical per-
spective? To what conduct does the Second Amendment's
plain text apply? To what historical era (or eras) should
3
The mad scramble for historical records that Bruen requires also sug-
gests 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 fexibility. 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 stifes 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.
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courts look to divine a historical tradition of gun regulation?
H
ow 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 nonexhaus-
tive list). But I won't.
III
Maybe time will resolve these and other key questions.
Maybe appellate courts, including ours, will fnd a way to
“[b]rin[g] discipline to the increasingly erratic and unprin-
cipled 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). In-
deed, “[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 quo-
tation marks and alteration omitted). By underscoring that
gun regulations need only “comport with the principles un-
derlying the Second Amendment,” ante, at 692 (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 pre-
4
Extremely pertinent inquiries relevant to consistent application of
Bruen's standard await resolution. For example, in Bruen we acknowl-
edged 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 ratifed in 1868 when defning
its scope (as well as the scope of the right against the Federal Govern-
ment).” 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
692, n. 1.
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Thomas, J., dissenting
dictability. 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 meaning-
ful reform for their constituents while simultaneously re-
specting 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 frearms
legislation, need a solid anchor for grounding their constitu-
tional pronouncements. The public, too, deserves clarity
when this Court interprets our Constitution.
Justice Thomas, dissenting.
After New York State Rife & Pistol Assn., Inc. v. Bruen,
597 U. S. 1 (2022), this Court's directive was clear: A frearm
regulation that falls within the Second Amendment's plain
text is unconstitutional unless it is consistent with the Na-
tion's historical tradition of frearm regulation. Not a single
historical regulation justifes 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 frearms or
ammunition. To trigger § 922(g)(8)'s prohibition, a restrain-
ing 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 engag-
ing in threatening behavior against an intimate partner or
child. § 922(g)(8)(B). Third, the order has either “a fnding
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that [the accused] represents a credible threat to the physi-
ca
l 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 possessi ng “any firear m or ammuniti on. ”
§ 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 fnding
that a person has ever committed a crime of domestic vio-
lence. It is not triggered by a criminal conviction or a per-
son's criminal history, unlike other § 922(g) subsections. See
§§ 922(g)(1), (9). And, § 922(g)(8) does not distinguish con-
tested orders from joint orders—for example, when parties
voluntarily enter a no-contact agreement or when both par-
ties seek a restraining order.
In addition, § 922(g)(8) strips an individual of his ability to
possess frearms 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
frearm or ammunition”). There is no hearing or opportu-
nity 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 pro-
vided (or not) for the underlying restraining order.
Despite § 922(g)(8)'s broad scope and lack of process, it car-
ries 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 688. And, a conviction for violating § 922(g)(8)
itself triggers a permanent, life-long prohibition on possess-
ing frearms and ammunition. See § 922(g)(1).
1
Rahimi does not ask the Court to consider, and I do not address,
whether § 922(g)(8) satisfes the Due Process Clause.
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Thomas, J., dissenting
In 2020, Zackey Rahimi and his ex-girlfriend, C. M., en-
t
ered 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 automati-
cally triggered § 922(g)(8)'s frearms ban. A year later, off-
cers discovered frearms 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 frearms. Section 922(g)(8), Rahimi argued, violates
that right by penalizing frearms 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 af-
frmed the District Court. 2022 WL 2070392 (2022).
Roughly two weeks later, this Court issued its opinion in
New York State Rife & Pistol Assn., Inc. v. Bruen. The
Court rejected the means-end-scrutiny approach and laid out
the appropriate framework for assessing whether a fre-
arm 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) “fts within our Na-
tion's historical tradition of frearm regulation.” 61 F. 4th
443, 460 (2023). The Fifth Circuit, accordingly, vacated Rahi-
mi's conviction. We granted certiorari. 600 U. S. ––– (2023).
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II
The
Second Amendment provides that “[a] well regu-
lated 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) v i olates the Second Amendment's mandate.
“[W]hen the Second Amendment's plain text covers an indi-
vidual's conduct, the Constitution presumptively protects
that conduct.” 597 U. S., at 17. To overcome this presump-
tion, “the government must demonstrate that the regulation
is consistent with this Nation's historical tradition of frearm
regulation.” Ibid. The presumption against restrictions
on keeping and bearing frearms 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 consist-
ent with historical regulations and thus overcomes the pre-
sumption against frearms 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 ad-
dresses 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
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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 Colum-
bia's “fat 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 frearm 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 them-
selves could have adopted to confront that problem.” Id., at
27. Accordingly, the Court “consider[ed] `founding-era his-
torical 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 estab-
lish that § 922(g)(8) is consistent with the Nation's historical
tradition of frearm regulation?
III
Section 922(g)(8) violates the Second Amendment. First,
it targets conduct at the core of the Second Amendment—
possessing frearms. Second, the Government failed to pro-
duce any evidence that § 922(g)(8) is consistent with the Na-
tion's historical tradition of frearm regulation. To the
contrary, the founding generation addressed the same soci-
etal 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 encom-
passed by the Second Amendment's plain text. After all,
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the statute bans a person subject to a restraining order from
possessi
ng or using virtually any frearm or ammunition.
§ 922(g) (prohibiting covered individuals from “possess[ing]”
or “receiv[ing] any frearm or ammunition which has been
shipped or transported in interstate or foreign commerce”).
A covered individual cannot even possess a frearm in his
home for self-defense, “the central component of the [Second
Amendment] right itself.” Heller, 554 U. S., at 599 (empha-
sis deleted). There is no doubt that § 922(g)(8) is irreconcil-
able 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 unspecifed
subset.” Id., at 580. The Second Amendment thus recog-
nizes 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 tradi-
tion of frearm regulation.” 597 U. S., at 24. Despite can-
vassing laws before, during, and after our Nation's founding,
the Government does not identify even a single regulation
with an analogous burden and justifcation.
2
The Gover nment's failure is unsur pr ising g iven that
§ 922(g)(8) addresses a societal problem—the risk of inter-
personal violence—“that has persisted since the 18th cen-
2
I agree with the majority that we need not address the “ `ongoing schol-
arly debate on whether courts should primarily rely on the prevailing
understanding of an individual right when the Fourteenth Amendment
was ratifed in 1868 when defning its scope (as well as the scope of the
right against the Federal Government).' ” Ante, at 692, n. 1 (quoting New
York State Rife & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 37 (2022)).
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tury,” yet was addressed “through [the] materially different
means”
of surety laws. Id., at 26. Surety laws were, in a
nutshell, a fne 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 justifcation 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 frearm regulation.
1
The Government does not offer a single historical regula-
tion 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 regula-
tions “impose a comparable burden” that is “comparably jus-
tifed.” Id., at 29. The Government offers only two cate-
gories of evidence that are even within the ballpark of
§ 922(g)(8)'s burden and justifcation: English laws disarming
persons “dangerous” to the peace of the kingdom, and com-
mentary discussing peaceable citizens bearing arms. Nei-
ther 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 exam-
ple, the Militia Act of 1662 authorized local offcials to disarm
individuals judged “dangerous to the Peace of the King-
dome.” 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 accord-
ing to law.” Calendar of State Papers Domestic: William
III, 1700–1702, p. 234 (E. Bateson ed. 1937) (Calendar Wil-
liam III).
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At frst glance, these laws targeting “dangerous” per-
sons
might appear relevant. After all, if the Second Amend-
ment right was historically understood to allow an offcial 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
offcials 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. Fol-
lowing the Glorious Revolution, they “obtained an assurance
. . . in the Declaration of Right (which was codifed as the
English Bill of Rights), that Protestants would never be dis-
armed.” 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 Stat-
utes of the Realm 143. The Second Amendment, however,
contains no such qualifers and protects the right of “the peo-
ple” generally. In short, laws targeting “dangerous” per-
sons led to the Second Amendment. It would be passing
strange to permit the Government to resurrect those self-
same “dangerous” person laws to chip away at that Amend-
ment's guarantee.
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Even on their own terms, laws targeting “dangerous” per-
sons
cannot support § 922(g)(8). Those laws were driven by
a justifcation distinct from that of § 922(g)(8)—quashing
treason and rebellion. The Stuart Kings' reign was marked
by religious and political confict, 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] ferce 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 mon-
archs.” 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 fames of rebellion”). Various noncon-
formist 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 per-
mitted 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.,
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at 538 (Nov. 1, 1662). For example, following “turbulency
and
diffculties” 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, fght, 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 or-
dered 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 West-
minster.” 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 pa-
pist.” Id., at 233–234 (emphasis deleted). Similar disarma-
ments 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 Westmor-
land et al., 10th Report, Appx., Pt. 4, p. 343 (1885). As be-
fore, disarmament was designed to stife “wicked conspira-
c[ies],” such as “raising a Rebellion in this Kingdom in favour
of a Popish Pretender.” Lord Lonsdale to Deputy Lieuten-
ants of Cumberland (May 20, 1722), in Historical Manuscripts
Commission, Manuscripts of the Earl of Carlisle, 15th Re-
port, Appx., Pt. 6, pp. 39–40 (1897).
While the English were concerned about preventing in-
surrection and armed rebellion, § 922(g)(8) is concerned with
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preventing interpersonal violence. “Dangerous” person
laws
thus offer the Government no support.
ii
The Government also points to historical commentary re-
ferring to the right of “peaceable” citizens to carry arms.
It principally relies on commentary surrounding two failed
constitutional proposals.
3
First, at the Massachusetts con-
vention, Samuel Adams unsuccessfully proposed that the Bill
of Rights deny Congress the power “to prevent the peo-
ple of the United States, who are peaceable citizens, from
keeping their own arms.” 6 Documentary History of the
Ratificati on of the Constituti on 1453 (J. Kaminsk i & 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 dis-
arming the people or any of them, unless for crimes com-
mitted, or real danger of public injury from individuals.”
Id., at 598.
3
The Government also cites an amendment to the Massachusetts Consti-
tution providing that “the people have a right to keep and to bear Arms
for their Own and the Common defence.” The Popular Sources of Politi-
cal 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 de-
prived” 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 ef-
fort to defne 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 be-
lieved is too paltry to defne the Second Amendment right. See Bruen,
597 U. S., at 46.
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These proposals carry little interpretative weight. To
beg
in with, it is “dubious to rely on [drafting] history to in-
terpret 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 Antifed-
eralists.” 6 Documentary History 1453 (internal quotation
marks omitted).
4
The Pennsylvania Anti-Federalists' pro-
posal similarly failed to gain a majority of the state conven-
tion. 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 sug-
gest that the Second Amendment preserves a more expan-
sive right. After all, the Founders considered, and rejected,
any textual limitations in favor of an unqualifed 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 frearms. 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 fre-arms, and they need them to kill
game for subsistence”). Other sources are individual mus-
ings on frearms 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 citi-
4
When Anti-Federalists renewed Samuel Adams' proposal, not only did
the proposal fail, but Adams himself voted against it. 6 Documentary
History 1453.
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zens 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 per-
mitted 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 Offcial 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 Gener-
al'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 mur-
der.” Id., at 474. The order provided that “all those who
voluntarily abandon[ed] the rebel cause” could return to Mis-
souri, 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” distin-
guished between the former rebels residing in Missouri who
were disarmed to prevent rebellion and those citizens who
would help fght against them.
The Government's smorgasbord of commentary proves lit-
tle of relevance, and it certainly does not establish a “histori-
cal 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
afeld. The Government points to an assortment of frearm
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 compar ing moder n and h istor ica l regu lati ons are
whether they “impose a comparable burden” that is “compa-
rably justifed.” Id., at 29 (emphasis deleted; internal quota-

760 UNITED
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tion marks omitted). The Government's evidence touches
on
one or none of these considerations.
The Government's reliance on frearm storage laws is a
helpful example. These laws penalized the improper stor-
age of frearms 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 bur-
den” to that of § 922(g)(8). Forfeiture still allows a person
to keep their other frearms or obtain additional ones. It is
in no way equivalent to § 922(g)(8)'s complete prohibition on
owning or possessing any frearms.
In fact, the Court already reached a similar conclusion in
Heller. The Court was tasked with comparing laws impos-
ing “a small fne and forfeiture of the weapon” with the Dis-
trict 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 for-
feiture 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 con-
cluded that the burdens were not equivalent. See id., at
633–634. That analysis applies here in full force. If a small
fne and forfeiture is not equivalent to the District of Colum-
bia's handgun ban, it certainly falls short of § 922(g)(8)'s ban
on possessing any frearm.
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 Amend-
ment] right,” then common sense dictates that it matters
whether you can defend yourself with a frearm anywhere,
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only at home, or nowhere. Heller, 554 U. S., at 599 (empha-
sis
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 codifes a right with a
“historically fxed meaning.” Id., at 28. Accordingly, his-
tory 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 justifca-
tion” between laws punishing frearm storage practices and
§ 922(g)(8). It posits that both laws punish persons whose
“conduct suggested that he would not use [frearms] respon-
sibly.” Brief for United States 24. The Government, how-
ever, does not even attempt to ground that justifcation in
historical evidence. See infra, at 774.
The Government's proposed justifcation is also far too
general. Nearly all frearm regulations can be cast as pre-
venting “irresponsible” or “unft” persons from accessing
frearms. In addition, to argue that a law limiting access to
frearms is justifed by the fact that the regulated groups
should not have access to frearms is a logical merry-go-
round. As the Court has made clear, such overly broad
judgments cannot suffce. 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 defned 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
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rejected that defnition as “far too broa[d]” as it “would in
effec
t 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 his-
torical law comparably justifed because they both prevent
unft persons from accessing frearms would render our
comparable-justifcation inquiry toothless.
5
In sum, the Government has not identifed any historical
regulation that is relevantly similar to § 922(g)(8).
2
This dearth of evidence is unsurprising because the Found-
ers responded to the societal problem of interpersonal vio-
lence through a less burdensome regime: surety laws. Trac-
i ng back to ear ly Eng l ish h istory, 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
(1618). If someone received a surety demand, he was re-
quired to go to a court or judicial offcer 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). Specifcally,
5
The Government's other analogies suffer from the same faws as the
frearm storage laws. It cites laws restricting frearm sales to and public
carry by various groups such as minors and intoxicated persons; laws con-
fscating frearms 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 oner-
ous 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 man-
ner 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 frearms for personal defense”). None es-
tablishes that the particular regulation at issue here would have been
within the bounds of the pre-existing Second Amendment right.
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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 fnd “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 estate” (emphasis
deleted)).
Surety demands were also expressly available to prevent
domestic v i olence. Surety cou ld be sought by “a w i fe
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 out-
rageously, 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 ratifcation refect that spouses
successfully demanded sureties when they feared future do-
mestic 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
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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 “fnd
suffcient sureties”); Anonymous, 1 S. C. Eq. 113 (1785)
(order requiring husband to “enter into recognizance . . . with
two sureties . . . for keeping the peace towards the complain-
ant (his wife)”).
3
Although surety laws shared a common justifcation with
§ 922(g)(8), surety laws imposed a materially different bur-
den. Critically, a surety demand did not alter an individu-
al's right to keep and bear arms. After providing sureties,
a person kept possession of all his frearms; could purchase
additional frearms; and could carry frearms 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 over-
stated. For one, § 922(g) criminalizes nearly all conduct
related to covered frearms and ammunition. Most funda-
mentally, possession is prohibited, except in the rarest of cir-
cumstances. 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) (affrming conviction
of a business owner under § 922(g) predecessor statute for
briefy possessing a frearm to ward off suspected robbers).
Courts of Appeals have understood “possession” broadly, up-
holding convictions where a person “picked up . . . three
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Thomas, J., dissenting
frearms for a few seconds to inspect” each, United States v.
Ma
tthews, 520 F. 3d 806, 807 (CA7 2008), or “made direct
contact with the frearm 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 fre-
arm, 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 frearms and ammunition. It prohibits possessing
a frearm “in or affecting commerce” and “receiv[ing] any
frearm or ammunition which has been shipped or trans-
ported in interstate or foreign commerce.” § 922(g). As
courts have interpreted that nexus, if a frearm or ammuni-
tion 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 frearm that “had previously traveled in interstate
commerce”); United States v. Lemons, 302 F. 3d 769, 772
(CA7 2002) (affrming conviction under § 922(g) for possess-
ing frearm that “crossed into Wisconsin after its manufac-
ture 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.
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 frst 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).
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§ 924(a)(8). That felony conviction, in turn, triggers a per-
m
anent, l i fe-long proh ibiti on on exercising the Second
Amendment right. See § 922(g)(1).
The combination of the Government's sweeping view of
the frearms and ammunition within its regulatory reach and
the broad prohibition on any conduct regarding covered
frearms and ammunition makes § 922(g)(8)'s burden unmis-
takable: 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 frearms in
Montana).
That combination of burdens places § 922(g)(8) in an en-
tirely different stratum from surety laws. Surety laws pre-
serve 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 fne, § 922(g)(8) is punishable by
a felony conviction, which in turn permanently revokes an
individual's Second Amendment right. At base, it is diff-
cult to imagine how surety laws can be considered relevantly
similar to a complete ban on frearm 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 ex-
plained that surety laws merely “provide fnancial incentives
for responsible arms carrying.” 597 U. S., at 59. “[A]n ac-
cused 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
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(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 Amend-
ment 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 rele-
vantly 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 ex-
plained, surety laws did not impose a burden comparable to
§ 922(g)(8). And, affray laws had a dissimilar burden and
justifcation. 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 700–701. 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
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reasons that Bruen dealt with a “broad prohibitory regime”
wh
ile § 922(g)(8) applies to only a subset of citizens. Ante,
at 699–700. Yet, that was only one way in which Bruen dis-
tinguished 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 re-
peated throughout the opinion. Id., at 55–59 (surety laws
“were not bans on public carry”; “surety laws did not pro-
hibit public carry”; surety laws “were not viewed as substan-
tial restrictions on public carry”; and “surety statutes did
not directly restrict public carry”). Bruen's conclusion is in-
escapable and correct. Because surety laws are not equiva-
lent to an effective ban on public carry, they do not impose
a burden equivalent to a complete ban on carrying and pos-
sessing frearms.
Next, the Court relies on affray laws prohibiting “riding
or going armed, with dangerous or unusual weapons, [to] ter-
rif[y] the good people of the land.” 4 Blackstone 149 (em-
phasis 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 con-
siderations. Ante, at 692. Affray laws are not a ft on
either basis.
First, affray laws had a disti nc t justi ficati on from
§ 922(g)(8) because they regulated only certain public con-
duct that injured the entire community. An affray was a
“common Nusanc[e],” 1 Hawkins, Pleas of the Crown, at 265,
defned as “the fghting of two or more persons in some pub-
lic place, to the terror of his majesty's subjects,” 4 Blackstone
145. Even though an affray generally required “actual vio-
lence,” certain other conduct could suffce. 1 R. Burn, The
Justice of the Peace, and Parish Offcer 13 (2d ed. 1756). As
relevant here, an affray included arming oneself “with dan-
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Thomas, J., dissenting
gerous and unusual weapons, in such a manner as [to] natu-
ra
lly 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 “reason-
able 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 defned by their public nature and effect.
An affray could occur only in “some public place,” and cap-
tured only conduct affecting the broader public. 4 Black-
stone 145. To that end, going armed laws did not prohibit
carrying frearms 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 bat-
tery”); Nottingham v. State, 227 Md. App. 592, 602, 135 A. 3d
541, 547 (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 trea-
tises shortly before the founding explain, “there may be an
assault which will not amount to an affray; as where it hap-
pens 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 265; see 1 Burn, Justice of the Peace, at 13. Af-
frays thus did not cover the very conduct § 922(g)(8) seeks
to prevent—interpersonal violence in the home.
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Second, affray laws did not impose a burden analogous
t
o § 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 cov-
ered person from carrying any frearm or ammunition, in any
manner, in any place, at any time, and for any reason. Sec-
tion 922(g)(8) thus bans all Second Amendment-protected ac-
tivity. Indeed, this Court has already concluded that affray
laws do not impose a burden “analogous to the burden cre-
ated 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 bur-
den either.
The Court counters that since affray laws “provided for
imprisonment,” they imposed a greater burden than § 922(g)
(8)'s disarmament. Ante, at 699. But, that argument
serves only to highlight another fundamental difference: Af-
fray laws were criminal statutes that penalized past behav-
ior, 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 im-
prison a person, a State had to prove that he committed the
crime of affray beyond a reasonable doubt. The Constitu-
tion 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 “ i nti mate par tner or ch i ld. ”
§ 922(g)(8)(C). Section 922(g)(8) thus revokes a person's
Second Amendment right based on the suspicion that he
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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 Amend-
ment'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 hear-
say. See, e. g., Wash. Rule Evid. 1101(c)(4) (2024) (providing
the state rules of evidence “need not be applied” to applica-
tions for protection orders (boldface and capitalization de-
leted)); 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 (inter-
personal violence in the home). Nor would I conclude that
affray laws—criminal laws regulating a specifc type of pub-
lic carry—are analogous to § 922(g)(8)'s use of a civil proceed-
ing 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
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together an analogue for § 922(g)(8). Ante, at 698. Our
precedents
foreclose that approach. The question before us
is whether a single historical law has both a comparable bur-
den and justifcation 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 ana-
logue for a distinctly modern frearm regulation requires a
determination of whether the two regulations”—the histori-
cal 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 bur-
den on the right of armed self-defense and whether that bur-
den is comparably justifed.” Id., at 29 (emphasis added).
The Court's contrary approach of mixing and matching his-
torical laws—relying on one law's burden and another law's
justifcation—defeats the purpose of a historical inquiry alto-
gether. Given that imprisonment (which involved disarma-
ment) existed at the founding, the Government can always
satisfy this newly minted comparable-burden requirement.
See ante, at 699. That means the Government need only
fnd a historical law with a comparable justifcation to vali-
date modern disarmament regimes. As a result, historical
laws fning certain behavior could justify completely disarm-
ing a person for the same behavior. That is the exact sort
of “regulatory blank check” that Bruen warns against and
the American people ratifed the Second Amendment to pre-
clude. 597 U. S., at 30.
Neither the Court nor the Government identifes a single
historical regulation with a comparable burden and justifca-
tion 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
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“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 701–702. 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 Gov-
ernment contended that the Court has already held the Sec-
ond 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 701–702.
At argument, the Government invented yet another posi-
tion. 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 Amend-
ment 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
7
The only conceivably relevant language in our precedents is the passing
reference in Heller to laws banning felons and others from possessing
frearms. 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 frearm in
New York. See, e. g., 597 U. S., at 9, 15, 31–32, 71.
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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 fnally tries to cram its dangerousness
test into our precedents. It argues that § 922(g)(8) and
its proffered historical laws have a shared justifcation of
disarming dangerous citizens. The Government, however,
does not draw that conclusion by examining the historical
justifcation 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 frearms
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 justifcation 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 ex-
plained, a historically based study of the evidence reveals that
the Government's position is untenable. Supra, at 753–759.
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 bot-
tom, its test stems from the idea that the Second Amend-
ment 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, irre-
sponsible, or otherwise unft to possess arms.” Brief for
United States 7. This approach is wrong as a matter of con-
stitutional interpretation, and it undermines the very pur-
pose and function of the Second Amendment.
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Thomas, J., dissenting
The Second Amendment recognizes a pre-existing right
and
that right was “enshrined with the scope” it was “under-
stood to have when the people adopted [the Amendment].”
Heller, 554 U. S., at 634–635. Only a subsequent constitu-
tional 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 frearm regulation so long as it
targets “unft” persons. And, of course, Congress would
also dictate what “unft” means and who qualifes. See Tr.
of Oral Arg. 7, 51. The historical understanding of the Sec-
ond 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 applica-
tions”). At base, whether a person could keep, bear, or even
possess frearms would be Congress's policy choice under the
Government's test.
That would be the direct inverse of the Founders' and rati-
fying public's intent. Instead of a substantive right guaran-
teed 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 prod-
uct 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 unqualifed deference.”
Bruen, 597 U. S., at 26.
The Government's own evidence exemplifes the dangers
of approaches based on generalized principles. Before the
Court of Appeals, the Government pointed to colonial stat-
utes “disarming classes of people deemed to be threats, in-
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cluding . . . slaves, and native Americans.” Supp. Brief for
U
nited 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 re-
gimes 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 fol low i ng the Civ i l War.
“[M]any of the over 180,000 African-Americans who served
in the Union Army returned to the States of the old Con-
federacy, 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-
Amer icans from possessi ng firear ms. ” Ib i d. And,
“[t]hroughout the South, armed parties . . . forcibly took
frearms from newly freed slaves.” Id., at 772. “In one
town, the marshal took all arms from returned colored sol-
diers, and was very prompt in shooting the blacks when-
ever an opportunity occurred.” Ibid. (alterations and inter-
nal 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 govern-
mental authority that led to those historical evils. Its the-
ory 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 minori-
ties or those with disfavored cultural views are deemed the
next “dangers” to society. Thankfully, the Constitution pro-
hibits such laws. The “very enumeration of the [Second
Amendment] right takes out of the hands of government . . .
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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 justifed by
specifc historical regulations. See ante, at 694–699. 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 defned 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 frearm to threaten physi-
cal 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 con-
victed 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 Sec-
ond Amendment. Instead, the question is whether the Gov-
ernment can strip the Second Amendment right of anyone
subject to a protective order—even if he has never been ac-
cused 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 inter-
personal violence. The Government has not borne its bur-
den 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 preserva-
tion of liberty.” McDonald, 561 U. S., at 858 (Thomas, J.,
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concurring in part and concurring in judgment). Yet, in the
i
nterest of ensuring the Government can regulate one subset
of society, today's decision puts at risk the Second Amend-
ment rights of many more. I respectfully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 710, line 18: “a party asks” is replaced with “parties ask”
p. 737, line 14: “keep and” is inserted before “bear”
p. 750, line 11: “the” is replaced with “this”
p. 763, line 19: the second “his” is deleted
p. 770, line 18: “lesser” is replaced with “greater”