The US v. Rahimi decision, upholding a federal law prohibiting the possession of firearms by individuals against whom restraining orders have been issued, demonstrates the Supreme Court’s originalists’ high regard for judicial restraint.
Rahimi, combined with the court’s prior Second Amendment decisions D.C. v. Heller, McDonald v. Chicago, and NYSRPA v. Bruen, shows the court’s willingness to only strike down legislation that constitutes a clear violation of constitutional rights by depriving law-abiding citizens from owning and carrying firearms. But when the question is close, the court exercises restraint and defers to the political process and judgment of legislatures.
In Heller, the court held that a handgun ban violated the Constitution. Likewise, in McDonald, the court struck down another handgun ban and held that the 14th Amendment applies the Second Amendment to states and municipalities. Following the same theme, the court in Bruen held that New York’s requirement that pistol permit applicants must “demonstrate a special need for self-protection distinguishable from that of the general community,” was unconstitutional because it completely prohibited law-abiding citizens who were unable to meet that requirement from exercising a fundamental constitutional right.
Rahimi was different from prior cases because the law at issue did not completely deprive law-abidin,g responsible citizens of the freedom to own or carry a firearm. Nonetheless, there were still strong arguments on both sides.
Ensuring public safety is a compelling government interest, and the law did not seem to affect law-abiding citizens. But restraining orders are typically issued on a preponderance-of-the-evidence standard, which means the complainant must only prove that it is “more likely than not to be true,” a much lower burden of proof than the beyond-a-reasonable-doubt standard required for criminal convictions.
The text, theory, and structure of the Constitution give courts a duty to strike down unconstitutional laws, but deciding when a court should use judicial review to override democratically-enacted legislation is a fundamental question of political and legal philosophy highlighting the difference between judicial restraint and judicial activism.
Judicial restraint holds that courts should hesitate to strike down democratically-enacted legislation and that courts should interpret laws with a presumption of constitutionality, while judicial activism holds that judges should strike down laws which they believe are bad policies as being unconstitutional.
Article III vests the “judicial power” in federal courts to decide “all cases and controversies.” Under Article VI, the Constitution is the supreme law of the land. Consequently, whenever another law conflicts with the Constitution, courts must follow the Constitution. As Alexander Hamilton wrote in Federalist #78: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law… Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”
Consequently, courts must override democratically-enacted laws which infringe individual constitutional rights. As the court wrote in West Virginia v. Barnette, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” and as Justice Antonin Scalia wrote in Heller, “The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
In Rahimi, the court noted the law “restricts gun use to mitigate demonstrated threats of physical violence” but “unlike the regulation struck down in Bruen, it does not broadly restrict arms use by the public generally.”
Under Bruen, to survive a constitutional challenge, the government must prove that a gun law is “consistent with the nation’s historical tradition of firearm regulation.” But as the court explained in Rahimi, “When a challenged regulation does not precisely match its historical precursors, it still may be analogous enough to pass constitutional muster. The law must comport with the principles underlying the Second Amendment, but it need not be a historical twin.”
Explaining the link between Rahimi and previous Second Amendment cases, Chief Justice John Roberts noted that the court goes no further than necessary to decide the particular case at hand: “In Heller, McDonald, and Bruen, this Court did not undertake an exhaustive historical analysis of the full scope of the Second Amendment. Nor do we do so today. Rather, we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”
This shows that the court is not willing to strike down gun regulations at every opportunity, but rather only fulfills its judicial duty in nullifying the most onerous of laws which prevent ordinary law-abiding citizens from exercising a fundamental constitutional right. As the court wrote, “When legislation and the Constitution brush up against each other, a court’s task is to seek harmony, not to manufacture conflict.”
That bespeaks a modest view of the role of the judiciary, which is a judicial virtue.