Plus, a reader question about "canceling" student debt.
I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
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Today's read: 12 minutes.
Correction.
In an answer to a reader question on Thursday, we referred to a disagreement between the Supreme Court’s liberal and conservative justices on “originalism” and “textualism,” saying that “textualism” was a philosophy practiced by the court’s liberal justices. In fact, both textualism and originalism are conservative philosophies. We credit this to having our brains on auto-complete when reading through that portion of the answer, and somehow the entire staff made that same mistake. We regret — and are more than a little embarrassed by — the error.
This is our 109th correction in Tangle's 255-week history and our first correction since June 18th. We track corrections and place them at the top of the newsletter in an effort to maximize transparency with readers.
Quick hits.
- The Supreme Court agreed to hear a case that will review whether states can prohibit medical procedures and gender transition treatments for minors. (The case)
- Russian authorities said six people died and over 100 were wounded as a result of Ukrainian drone and missile attacks on Sunday, while Russia continued its attacks in Kharkiv, where one person died over the weekend. (The attacks)
- Four people were killed and nine others were injured when a gunman opened fire at an Arkansas grocery store. (The shooting)
- The U.S. and China resumed semi-official nuclear arms talks for the first time in five years. (The talks)
- Tens of thousands of protesters gathered in downtown Tel Aviv over the weekend to call on Israeli government leadership to resign and Hamas to return 120 hostages. It was the largest protest since the beginning of the war. (The protest)
Today's topic.
United States v. Rahimi. On Friday, the Supreme Court upheld a federal law barring anyone subject to a restraining order for domestic violence from possessing firearms. The ruling reversed a judgment by the 5th U.S. Circuit Court of Appeals that the law violated the Second Amendment’s guarantee of a right to keep and bear arms.
The 8-1 ruling was the court’s first major decision on Second Amendment issues since New York State Rifle & Pistol Association v. Bruen in 2022, which established a right to carry guns outside the home and required gun control laws to be “consistent with this Nation's historical tradition of firearm regulation.” That decision prompted several challenges to limits on gun possession, including Rahimi.
The plaintiff, Zackey Rahimi, brought the challenge after he was sentenced to more than six years in prison for possessing a gun against the terms of a 2019 protective order for domestic violence. Months later, Rahimi was charged with assault with a deadly weapon for threatening a second woman with a gun and opened fire in public on five separate occasions. After he was identified as a suspect in those incidents, police obtained a search warrant for his home and found a rifle and a pistol. He pleaded guilty to unlawfully possessing the guns after a judge rejected his initial Second Amendment challenge to the law. The 5th Circuit court rejected his appeal in 2022, but reversed course in 2023 following the Supreme Court’s Bruen decision, leading to the appeal to the Supreme Court.
Chief Justice John Roberts, writing for the majority, attempted to clarify elements of the Bruen ruling that had produced competing interpretations by lower courts in the two years since the decision. Gun control laws, he said, do not need an exact historical analog to be constitutional; instead, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” In Rahimi’s case, Roberts pointed to early English and American laws empowering courts to set bonds for people who were believed to be a threat or punish people who threatened others with guns as justification for the ruling while remaining consistent with Bruen.
Six justices wrote separate concurrences challenging the scope of Roberts’s opinion — Sonia Sotomayor (joined by Elena Kagan), Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson. Sotomayor and Jackson, two of the court’s liberal justices, criticized the Bruen decision in their opinions, with Jackson writing that the constitutional test set by the ruling is proving difficult for lower courts to apply through no fault of their own.
Barrett and Gorsuch, two conservative justices, had differing arguments about how Bruen should be interpreted; Barrett said Bruen requires a “wider lens” that looks for a principle in early laws to support gun regulations, while Gorsuch said that specific historical analogs should be required but that Roberts had properly identified them in his majority opinion.
Justice Clarence Thomas provided the lone dissenting voice, objecting to the idea that someone could lose their Second Amendment rights without having been convicted of a crime (Rahimi was initially subject to a protective order, not convicted of a crime). “The court and government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence,” Thomas wrote. He argued the government should prosecute anyone it thinks has committed an act that should bar them from owning guns.
Today, we’ll explore arguments from the right and left about the court’s ruling in Rahimi. Then, my take.
Agreed.
- Both sides broadly agree with the outcome of the case, though they view its implications differently.
- Most commentators also note that the number of concurrences in Rahimi suggest the court still needs to further clarify the precedent established in Bruen.
What the right is saying.
- The right is mixed on the ruling, suggesting the court did little to resolve the underlying issues of the case.
- Some say the decision shouldn’t be seen as a blow to the Second Amendment.
- Others support Roberts’s guidance on how to assess the constitutionality of gun laws.
In National Review, Dan McLaughlin said the ruling “dodges questions about due process of law.”
“The underlying facts in Rahimi were extreme. Zackey Rahimi, a drug dealer, fired his gun in public five times at five different people in the span of five weeks,” McLaughlin wrote. “But what’s legally relevant isn’t the facts that came out later in the prosecution of Rahmi, but what sort of judicial process was used to impose the order of protection in the first place — because that’s the basis upon which his gun rights were restricted… [the ruling] brushed aside, at least for now, serious questions about whether the protective-order system provides adequate due process of law.”
“There’s a fair dispute here; this was a close case. I’m inclined to think the majority was right that the Founders saw dangerousness as the touchstone of the limits on the right to bear arms, and that the Founding-era precedent of the surety laws is close enough to show that a civil process for finding dangerousness can be used to restrict the right to bear arms — although, as Gorsuch observed, that leaves open not only the due-process questions but also the duration of those orders.”
In The Daily Signal, Amy Swearer argued that the decision doesn’t “constitute a ‘defeat’ for the Second Amendment.”
“There is plenty of reason for Second Amendment advocates to see Rahimi as more of a draw than a loss, although certain aspects of how the Supreme Court majority came to this conclusion likely will be intentionally or recklessly misused by the same lower courts that have misused Heller, McDonald, and Bruen to uphold gun control laws consistently in much less complicated cases,” Swearer wrote. “The majority explicitly left open future challenges to the second and more concerning basis for disarmament… In addition, there’s significant room to challenge restraining orders (or other, similar types of disarmament measures, such as red flag laws).”
“Nothing in the Rahimi case suggests that the Supreme Court is interested in rolling back core assertions made in prior Second Amendment cases. Quite the opposite. The majority reiterated, among other things, that regulations such as surety laws are not a historical analogue for broad prohibitions affecting ordinary, nonviolent citizens, and that the Second Amendment’s reach isn’t limited to guns existing at the time of the Founding,” Swearer said. “These are all good indications that, even if the Supreme Court is skittish about striking down laws aimed at disarming clearly violent people such as Rahimi, it remains committed to vindicating the rights of ordinary, law-abiding citizens.”
In The New York Times, David French wrote “Clarence Thomas and John Roberts are at a fork in the road.”
“If the Fifth Circuit’s ruling had stood, lawmakers seeking to justify virtually any gun regulation would have to be prepared to find colonial or early-American analogies for their proposed restriction or watch it fail in court. This would have meant that lawmakers facing modern gun violence problems involving modern weapons would have been constrained into essentially colonial and founding-era legal solutions,” French said. “In essence, that is the exact reverse of an argument that some gun control proponents make, that the Second Amendment protects only possession of colonial-era weapons. Under the Thomas test, the Second Amendment would permit only colonial-era restrictions.”
The court’s majority opinion “clarified their approach to text, history and tradition in a way that freed lower courts from the straitjacket of finding precise historical analogies… such reliance on a specific, narrow past legislative approach isn’t required by originalism. It is, itself, a policy choice,” French wrote. “The difference between Roberts and Thomas is clear. Roberts looks to past practice to establish a principle. Thomas looks to past practice as essentially establishing precedent. Roberts gets it right. When we consider new policies in the present, the acts of the past are instructive but not binding. Modern American lawmakers are not limited by the colonial imagination.”
What the left is saying.
- The left supports the decision but criticizes the court for past rulings that compelled them to hear this case.
- Some say the decision lays the groundwork for future rulings to expand gun access.
- Others say the conservative justices showed they have a limit to their support for gun rights.
In The Guardian, Moira Donegan wrote the court is “fighting legal monsters of their making.”
“That a circuit court would have restored gun rights to men who are subject to domestic violence restraining orders reflects just how extreme the federal judiciary’s gun jurisprudence has become – and, as in their abortion jurisprudence, how casual and careless many federal judges are with women’s lives,” Donegan said. “But the supreme court’s decision in United States v Rahimi also reveals the logical inconsistencies in the foundation of so-called ‘originalist’ legal interpretation, the unworkability of the court’s insistence on historical precedent for every government regulation and the growing divisions among the conservative justices about just what ‘history and tradition’ should mean.”
“That so many of the justices who voted for Thomas’s interpretation of Bruen just two years ago voted against that same interpretation today just goes to show how hollow an approach ‘originalism’ really is – it is a doctrine that can expand or contract based on the justices’ political preferences in whichever case happens to be before them,” Donegan wrote. “They have so much control over the law, and so much indifference to precedent and consistency in how they wield it, that they can call upon virtually any interpretive scheme they choose, label it ‘originalism’, and claim to have exercised a principled interpretive strategy.”
In The Nation, Elie Mystal suggested the court got the ruling right but “for completely bonkers reasons.”
“If you actually read opinions, concurrences, and dissents… what you see is a group of conservatives desperately trying to square their extremist reading of the Second Amendment—and their violent rulings of the past—with the objective reality that domestic abusers should not be allowed to own firearms to menace their victims,” Mystal said. “Roberts’s historical analogies are tortured and wacky, but this is what Roberts does. When he likes a law but realizes that upholding it goes against his ideological priors, he just makes stuff up. He did this with Obamacare, converting it into a ‘tax’ to avoid giving the government its obvious power to regulate healthcare under the Commerce Clause, and he’s doing it again here.”
The court’s other conservatives “all wrote their own concurrences, each taking a crack at explaining why Bruen is still a super awesome ruling, even as they departed from it in this case… But the upshot from these concurrences is that they’ll still feel free to apply Bruen in the next gun case,” Mystal wrote. “And that next gun case has actually already happened. The court’s decision in Garland v. Cargill… reaffirmed the violent contention that, since bump stocks were not banned in the long-ago past, they cannot be banned now. Taking Rahimi and Cargill together reveals a court that has not backed off its extremist interpretation of the Second Amendment.”
In MSNBC, Jessica Levin said the decision “shows limits on guns are difficult — but not impossible.”
“Eight justices sent an important message: The Second Amendment’s right to bear arms is not entirely unlimited, and there are situations where the government can restrict gun possession. This may come as a surprise to many who have watched the conservative-dominated court bolster gun rights over the years — but in reality it is an attempt to keep the lower courts in check after a series of vague and harmful rulings,” Levin wrote. “How, one might ask, is there any question as to whether someone like Rahimi could be barred from possessing guns, even temporarily? The answer is that over the last 16 years, the court made two big conclusions about the Second Amendment that have created a high, high constitutional bar for imposing gun control measures.”
“The opinion from Chief Justice John Roberts represents an important clarification of the new standards the court has created over the last 16 years,” Levin said. “It is in effect a relatively narrow shift, focused as it is on whether people like Rahimi — who throw their girlfriends against dashboards and fire shots at restaurant workers who decline credit cards — can temporarily lose their right to possess guns under the court’s recent decisions. It remains difficult for governments to limit gun ownership and possession — but Friday’s decision affirms that ‘difficult’ is not the same as ‘impossible.’”
My take.
Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.
- I think the court came to the right conclusion, both legally and practically.
- We limit constitutional rights on the basis of safety all the time, and this case is just one example of many where it makes sense to do so.
- The most interesting thing going forward is how Rahimi will affect other gun rights cases before the court.
As usual with Supreme Court cases, it’s helpful to analyze this case in two different dimensions: The logic of the ruling, and its practical outcome. I often find myself split on these questions — where the outcome is something I want but there are elements of the ruling I am skeptical of, or vice versa.
In this case, I’m happy about the outcome and completely satisfied with the logic the court took to get there.
My analysis of the outcome is simple: People like Zackey Rahimi shouldn't be able to own a firearm. Rahimi was abusive toward his girlfriend, fired his gun at a bystander who witnessed his abuse, and regularly brandished and fired his gun in public as a means to threaten people. A judge issued a protective order against Rahimi, which also prohibited him from owning a gun. That seems totally sensible to me. As with any right, there are restrictions and limits on the right to bear arms, and we employ the judgment of lawyers, courts, and judges all across the country to impose those limits. If the state can't keep people like Rahimi from legally owning a firearm — even for brief periods of time — it's hard to imagine any permissible limits on the Second Amendment at all.
So: good outcome.
The legal argument is slightly less black and white, but no less satisfying. Clarence Thomas's dissent made the best argument you could make (from a weak position) that the court had erred in its 8-1 ruling, saying that the only mechanism states can use to disarm someone is to convict the person of a violent crime. The real question, Thomas said, is "whether the Government can strip the Second Amendment right of anyone subject to a protective order — even if he has never been accused or convicted of a crime. It cannot."
On this point, I fundamentally disagree. In fact, I think protective orders that temporarily disarm someone are a great use case for such orders, and I think they are constitutionally sound. Court proceedings take time, trials regularly require months or years to conclude, and obviously dangerous and unhinged people like Rahimi regularly commit violence in those intervals. We already jail people awaiting hearings very regularly, a much more expansive restriction on personal rights than firearm prohibitions. That’s one of the reasons we have judges — to make difficult decisions to (temporarily) restrict someone's rights to ensure the rights and safety of others. I'm totally comfortable with states passing laws that allow a judge to disarm someone in extreme cases — cases like Rahimi’s — where doing so will protect the safety of those around them.
Of course, just because the argument is sensible doesn't mean it’s absolutely constitutional. To get there, the majority needed to find some kind of historical analog to meet the legal test set out in Bruen: that the government has to demonstrate a regulation is consistent with the historical understanding of the Second Amendment. Roberts seemed to do that easily, identifying historical examples of English and U.S. laws that forced potentially threatening people to post bond and other laws punishing people who threatened others with guns. If threatening someone with a gun has historically been enough reason for legal punishment, it would seem to me that physical abuse, threats, or other dangerous behavior provide ample justification to restrict someone's ability to possess a firearm.
As Roberts put it, the two examples "confirm what common sense suggests: When an individual poses a clear threat of violence to another, the threatening individual may be disarmed."
The most interesting aspect of this ruling to me is how it will impact gun control going forward. Rahimi makes substantial changes to Bruen, or at least substantially limits it. Laws that are "relevantly similar" to historical regulations on gun control can now withstand constitutional muster, rather than needing to be “well-established and representative analogues,” which is how the Fifth Circuit interpreted Bruen. Roberts also instructed courts to consider "applying faithfully the balance struck by the founding generation to modern circumstances" and made it clear that these historical examples do not need to be "twins" to modern laws, explaining that if that were the case the Second Amendment would only protect muskets and sabers.
It's clear that even among the conservative justices there is meaningful disagreement, which might come out in future Second Amendment cases. While Justices Gorsuch, Kavanaugh and Barrett all seem to have agreed with the outcome here, they differed in how they got there, diverging on how to apply originalism to regulations like those under question in Rahimi so much that they each penned their own concurrences. The disagreement between the justices underscores the limits of Roberts's opinion and foreshadows deeper disputes about the Bruen precedent that will need to be resolved in the future.
In the short term, though, this ruling clarifies the reach of Bruen and will have its biggest impact on federal and state laws that prohibit convicted felons from having guns. Hundreds of cases are challenging those laws across the country, but this ruling will give lower courts good reason to uphold the laws as is. It should also add more support for the constitutionality of red flag laws and other attempts to restrict gun ownership among violent offenders or domestic abusers.
The court’s decision in Rahimi illustrated some division among the conservative justices on originalism and Second Amendment cases, but after the chaos and confusion Bruen invited, it mostly clarified the upper limits of how far the Second Amendment extends. For that, the law should both be clearer and more accurately reflect the will of the people.
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Your questions, answered.
Q: Why do you insist on using the word “cancel” to describe the executive branch wiping out loans to student borrowers? You should describe it for what it really is, which is transferring debt to another group: the taxpayers.
— Anonymous from Rome, New York
Tangle: I’ve gotten this question or comment from a lot of people as we’ve covered President Biden’s various actions to forgive student loans over the course of the past year, and I’ve mostly just dismissed it as a semantic complaint. But I think there’s enough real concern behind this idea that I wanted to address it.
First, and right away, I do think this is mostly semantic. The government is the loan holder for these debts, and the loan holder has the right to cancel balances of the loan. It really is that simple, and I use the terms “cancel” or “forgive” to describe these actions because they’re simple and they’re accurate.
But I want to acknowledge some counterpoints here. The federal government is funded by tax dollars. When the budget it gets from taxpayers isn’t enough to account for the amount it spends, it runs a deficit, and that money will eventually be covered by one of two ways: budget cuts, or extra revenue (through taxes). Either way, taxpayers pay the price: The government “canceling” debt is really just adding to its deficit, which is paid for either directly by the taxpayer or indirectly through the cuts to services that taxpayers would have otherwise funded. That’s a bit of an oversimplification, but it’s largely accurate.
From a reporting standpoint, though, describing the government forgiving a loan as ‘transferring debt to the public’ is much more complicated. When a bank forgives a loan or cancels a debt, that balance coming off its books also has to get covered from some other source the institution tracks. But since the bank is the institution in that case, the bank just cancels the loan.
It’s the same thing with the government. It holds the loan, it cancels the debt — hence, our choice to use that word. That said, I certainly agree that everyone should understand “cancel” doesn’t simply mean that debt goes poof — the money has to come from somewhere.
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Under the radar.
The Senate overwhelmingly passed a major bill to make it easier, cheaper, and faster to permit and build new nuclear energy power plants. The ADVANCE Act, which passed with just two senators voting no, is the most significant action Congress has taken to promote clean energy since Democrats pushed the Inflation Reduction Act through Congress two years ago. The bill will bring down costs for developers and streamline the permitting process by cutting fees and speeding up approval times. Congress hopes it will facilitate more development of new-wave projects like small modular nuclear reactors. CNN has the story.
Numbers.
- 4.5 million. The approximate number of women in the United States who have been threatened with a gun by an intimate partner, according to the Johns Hopkins Center for Gun Violence Solutions.
- 1 million. The approximate number of women in the U.S. who have been shot or shot at by an intimate partner.
- 740. The number of women fatally shot by an intimate partner in the U.S. in 2020, according to Everytown.
- 66%. The percentage of female domestic violence homicide victims in the U.S. who were killed with a gun.
- 82%. The percentage of Americans who support banning those convicted of domestic violence from purchasing a gun, according to a 2023 poll from 19th News/SurveyMonkey.
- 81%. The percentage of Republicans who support banning those convicted of domestic violence from purchasing a gun.
- 91%. The percentage of Democrats who support banning those convicted of domestic violence from purchasing a gun.
- 56%. The percentage of Americans who support stricter laws covering the sale of firearms, according to Gallup.
The extras.
- One year ago today we had just published a Friday edition on what makes a bad argument.
- The most clicked link in Thursday’s newsletter was Biden overtaking Trump in a recent poll.
- Nothing to do with politics: When your friend uses AI to write to you.
- Thursday’s survey: 939 readers answered our survey asking about President Biden’s recent executive order granting temporary legal status to some immigrants in the country illegally with 28% strongly supporting the order. “It is a relatively minor tweak that only seems fair, once again the President has to try covering for an ineffective congress,” one respondent said.
Have a nice day.
Water is a key element for sustaining life on any planet, making any discovery of water on a distant world exhilarating for any astronomer. Recently, a European space probe discovered thousands of gallons of frost within the calderas of volcanoes on our closest-orbiting neighbor: Mars. The team described the discovery as a “significant first” and could provide a major breakthrough in the search for life on other planets. A separate discovery in the same region showed evidence of lava tubes, leading to new theories about the potential of “the Red Planet” having once been able to support life. World at Large has the story.
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