The 5th U.S. Circuit Court of Appeals’ decision on Thursday allowing alleged domestic abusers to keep their guns is perhaps the most radical Second Amendment decision in the history of the federal judiciary. It is not, however, a surprise. Justice Clarence Thomas’ opinion in last year’s Bruen case invited lower courts to strike down any gun restrictions that “our ancestors would never have accepted.” This standard is infinitely malleable given the hopeless ambiguities in the historical record. But even where the record is clear, Thomas’ test leads to heinous results given that the “ancestors” in question were often violently racist and misogynistic white men. As the 5th Circuit tacitly acknowledged, “our ancestors” would “never have accepted” disarming domestic abusers because they did not believe domestic violence was a crime.
And yet, despite the reach of Bruen, I am fairly confident that five justices will reverse the 5th Circuit and uphold a variety of laws that our ancestors would have rejected, including the federal ban on owning a gun while subject to a restraining order for domestic violence. Why? Because I do not think five justices agree with Bruen. Yes, it was a 6–3 decision. Yes, every justice in the majority joined Thomas’ opinion in full. But one justice, Brett Kavanaugh, wrote a separate opinion laying out a different standard that cannot be squared with Thomas’. And another, Chief Justice John Roberts, joined him. Under the Kavanaugh-Roberts test, disarming alleged abusers—and other individual adjudged to be dangerous—is almost certainly constitutional.
It is almost never wise to be optimistic about this Supreme Court. And it is frightening to think that thousands of lives depend on Kavanaugh ruling the right way. But in this most unusual case, I think cautious confidence is in order.
To see why, just hold up Thomas’ and Kavanaugh’s opinions in Bruen side by side. Both justices agreed with the bottom line: New York’s concealed carry law, which required applicants to demonstrate a heightened need for self-defense, violates the Second Amendment. But take one step beyond that and the justices start to diverge. Thomas devotes his opinion to articulating a new legal test: Modern gun restrictions are “presumptively” unconstitutional unless they have enough “historical analogues” from the 18th and 19th centuries to prove that they are rooted in “this nation’s historical tradition of firearm regulation.” That’s the test that the 5th Circuit used to find that the government cannot bar people from owning guns while they are under a restraining order for domestic violence.
Although Kavanaugh formally signed onto Thomas’ opinion, he spent the bulk of his separate concurrence recasting it as something very different. Kavanaugh wrote that he wanted “to underscore two important points about the limits” of Thomas’ opinion. First, he clarified that the decision does not affect “the existing licensing regimes” in 43 states that let any law-abiding adult carry a concealed weapon. “As the court explains,” Kavanaugh declared, “New York’s outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense.” In other words, New York’s “outlier” law violates the Second Amendment because it grants state officials so much latitude in determining who deserves to carry a gun.
But that’s not actually what the court—that is, Clarence Thomas’ majority opinion—said! Thomas did not focus primarily on the problem of state officials’ “open-ended discretion.” He instead zeroed in on the ostensible lack of a historical basis for such stringent limits on concealed carry. These are two very different things! In his concurrence, Kavanaugh then went on to preemptively greenlight a variety of restrictions on concealed carry permits, including “fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force.” All these requirements, he declared, are “constitutionally permissible.”
Wait—they are? Why? Under Thomas’ test, that’s an open question: The government would have to demonstrate that in the 18th and 19th centuries, a critical mass of states forced citizens to jump through these hoops before acquiring a concealed carry permit. It’s extremely unlikely that states demanded fingerprinting (which did not exist at that time) or a background check (frequently impossible in an era with scarce, scattershot paper records) or a mental health records check (since the very concept of mental health was in its infancy). These requirements are only constitutional—indeed, obviously constitutional, per Kavanaugh—under a more lenient test. A test that, for instance, measures the importance of the government’s objectives against the burden on the individual’s rights. Yet Thomas expressly disclaimed this kind of “means-end scrutiny,” insisting that it is irrelevant how many lives a particular gun restriction might save.
Turn now to Kavanaugh’s second “important point” about “the limits” of Bruen. The justice reiterated a famous passage in D.C. v. Heller, the 2008 decision that first established an individual right to bear arms. In Heller, Justice Antonin Scalia wrote that this right “is not unlimited,” adding: “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. … We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” Kavanaugh reprinted this entire passage just to endorse it.
Here’s the thing, though: Scalia did not want to add that passage to Heller. He only inserted it because Justice Anthony Kennedy, the swing vote, asked for language limiting the decision’s reach. Kennedy knew he could extract this concession from Scalia as the price of his vote. Lower courts routinely cite that passage when upholding all manner of gun restrictions. By reprinting and endorsing it, Kavanaugh signaled that he was on board with at least some limits on firearms that “our ancestors” wouldn’t have liked. It’s true that people accused of domestic violence do not automatically fit into the category of “felons and the mentally ill.” But it stands to reason that if the government can disarm someone adjudged to be mentally ill in a civil proceeding, it can disarm someone adjudged to be a domestic abuser in a civil proceeding, as well.
If I am right that Kavanaugh (along with Roberts) sought to limit Bruen’s scope in his concurrence, the question arises: Why not force Thomas to tone down his opinion for the court? Why not follow the approach of his predecessor and mentor, Anthony Kennedy, and extract a concession in the form of a limiting principle or a more lenient test?
My suspicion is that Kavanaugh did not want to be accused of betraying the gun rights movement by watering down a landmark victory for the cause. It’s also possible, however, that Kavanaugh simply did not want to bother negotiating with Thomas when he could write his own opinion laying out a different vision of the Second Amendment. After all, the justice has a well-known habit—infuriating to conservatives—of limiting majority opinions through separate concurrences. Maybe he already knew Roberts would sign on, thereby sending an important message: There are not, in fact, five votes for the no-holds-barred assault on modern gun regulations that Thomas craves.
If there is any group of people whom the government has a good reason to disarm, it’s people accused of domestic abuse. These individuals are vastly more likely to kill their partners or commit mass shootings. To Thomas, this fact does not matter one bit. To Kavanaugh, I think it does. The 5th Circuit may be convinced that Bruen gave it carte blanche to invalidate every gun safety law under the sun. But its certitude may well be misplaced.