Comment

United States v. Rahimi: “We Do Not Resolve Any of Those Questions Because We Cannot”

Two years ago, the Supreme Court restructured Second Amendment jurisprudence in New York State Rifle & Pistol Ass’n v. Bruen.1 1.142 S. Ct. 2111, 2122, 2127 (2022).Show More That decision created a historical test for Second Amendment challenges to firearm regulations.2 2.Id. at 2129–30.Show More To be constitutional, such a regulation must now be “consistent with the Nation’s historical tradition of firearm regulation.”3 3.Id.Show More This holding spawned a wave of Second Amendment challenges4 4. Rebecca Brown, Lee Epstein & Mitu Gulati, Guns, Judges, and Trump, 74 Duke L.J. Online (forthcoming 2025) (manuscript at 7), https://papers.ssrn.com/sol3/papers.cfm?abstra‌ct_id=4873330 [https://perma.cc/A8CW-G48Z] (asserting that Bruen caused a 455% increase in annual Second Amendment challenges).Show More upon which lower courts have struggled to rule uniformly.5 5. United States v. Rahimi, 144 S. Ct. 1889, 1927 & n.1 (2024) (Jackson, J., concurring).Show More United States v. Rahimi represents the Supreme Court’s first application of the historical test since Bruen was decided.6 6.Id. at 1903–04 (Sotomayor, J., concurring, joined by Kagan, J.).Show More

Rahimi provides almost no guidance to lower courts struggling to apply Bruen. The fractured Court added little of substance to clarify the historical test. Instead, the seven opinions issued in Rahimi are a case study of Bruen’s flaws—namely, that it created an unworkable, subjective test that leads to judicial partisanship.

The facts of Rahimi are as follows. In 2019, Zackey Rahimi injured his girlfriend, C.M., during an argument.7 7.Id. at 1894–95 (majority opinion).Show More He fired a gun as C.M. fled, later threatening to shoot her if she reported the incident.8 8.Id. at 1895.Show More Pursuant to this threat, C.M. sought a restraining order against Rahimi.9 9.Id.Show More A state court in Texas granted the order, finding that Rahimi was “a credible threat to the physical safety of C.M. [or her child].”10 10.Id. (quoting Joint Appendix at 2–3, Rahimi, 144 S. Ct. 1889 (No. 22-915)).Show More The restraining order prohibited Rahimi from contacting C.M. for two years, except to discuss their child.11 11.Id. (citing Joint Appendix at 3–7, Rahimi, 144 S. Ct. 1889 (No. 22-915)).Show More During those two years, the order also suspended Rahimi’s gun license.12 12.Id. (citing Joint Appendix at 5–6, Rahimi, 144 S. Ct. 1889 (No. 22-915)).Show More

While he was under this restraining order, law enforcement identified Rahimi as a suspect in five shootings.13 13.Id.Show More Police searched Rahimi’s home, where they found two firearms and a copy of the restraining order.14 14.Id.Show More Rahimi was subsequently charged with violating 18 U.S.C. § 922(g)(8) by possessing a firearm while subject to a domestic violence restraining order.15 15.Id.Show More

For this statute to apply, the restraining order in question must meet several requirements. The order must have been issued after a hearing.16 16.18 U.S.C. § 922(g)(8)(A).Show More The defendant must have had actual notice of that hearing and must have had an opportunity to participate.17 17.Id.Show More The restraining order must also either prohibit the use, attempted use, or threatened use of physical force against an intimate partner or include a finding that the defendant represents a credible threat to the physical safety of a partner.18 18.Id. § 922(g)(8)(C).Show More Rahimi’s restraining order satisfied all of these elements.19 19.Rahimi, 144 S. Ct. at 1896.Show More

Asserting that § 922(g)(8) violates the Second Amendment facially, Rahimi moved to dismiss the indictment.20 20.Id. (citing Motion to Dismiss Indictment at 1, United States v. Rahimi, No. 21-cr-00083 (N.D. Tex. May 7, 2021)).Show More The district court denied the motion, and the U.S. Court of Appeals for the Fifth Circuit initially affirmed.21 21.Id.Show More While Rahimi’s petition for rehearing en banc was pending, Bruen was decided.22 22.Id.Show More The Fifth Circuit panel withdrew its opinion and ordered additional briefing to account for the change in law.23 23.Id.Show More On rehearing, the Fifth Circuit determined that the Government failed to present any historical evidence establishing § 922(g)(8) as “within our Nation’s historical tradition of firearm regulation,” and therefore vacated Rahimi’s conviction.24 24.United States v. Rahimi, 61 F.4th 443, 460, 461 (5th Cir. 2023), rev’d, 144 S. Ct. 1889 (2024).Show More The Supreme Court granted certiorari.25 25.United States v. Rahimi, 143 S. Ct. 2688, 2688–89 (2023) (mem.).Show More

Writing for a nearly unanimous Court, Chief Justice Roberts criticized lower courts for misunderstanding Bruen.26 26.United States v. Rahimi, 144 S. Ct. 1889, 1897, 1903 (2024) (criticizing both lower courts generally and the Fifth Circuit specifically for misunderstanding recent Second Amendment decisions).Show More In deciding Rahimi, the Fifth Circuit had looked for a “historical twin,” but according to Chief Justice Roberts, only a “historical analogue” is required to establish a law as constitutional.27 27.Id. at 1903 (quoting N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022)).Show More A modern law only needs to be “‘relevantly similar’ to laws that our tradition is understood to permit” to survive a Second Amendment challenge.28 28.Id. at 1898 (quoting Bruen, 142 S. Ct. at 2132).Show More

The Court then identified two types of historical legislation that are “relevantly similar” to § 922(g)(8): surety laws and affray laws.29 29.Id. at 1901 (quoting Bruen, 142 S. Ct. at 2132).Show More Surety laws allowed judges to impose a bond on a person suspected of future misbehavior, including spousal abuse.30 30.Id. at 1900.Show More These bonds were temporary and based upon the findings of a magistrate.31 31.Id.Show More Affray laws outlawed “riding or going armed, with dangerous or unusual weapons, . . . [to] terrify[] the good people of the land.”32 32.Id. at 1901 (second and third alterations in original) (quoting 4 William Blackstone, Commentaries on the Laws of England 149 (Richard Burn & John Williams eds., 10th ed. 1787)).Show More Both surety laws and affray laws date back to at least the 18th century.33 33.Id. at 1899 (finding that surety laws and affray laws developed as “two distinct legal regimes” to address “firearms violence”).Show More

Drawing upon these historical regulations, the Court held that “[a]n 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.”34 34.Id. at 1903.Show More With the facial constitutionality of § 922(g)(8) established, the Court reversed the Fifth Circuit’s decision.35 35.Id. at 1902–03.Show More

Over the last two years, courts have struggled to apply Bruen’s historical test consistently.36 36.Id. at 1927 (Jackson, J., concurring).Show More Justice Jackson’s concurrence in Rahimi cites a dozen lower court opinions complaining about the ambiguity of the Bruen test.37 37.See id. at 1927 n.1.Show More Rahimi is the Supreme Court’s first application of the historical test since Bruen was decided.38 38.Id. at 1903–04 (Sotomayor, J., concurring, joined by Kagan, J.) (“Today the Court applies its decision in New York State Rifle & Pistol Assn., Inc. v. Bruen for the first time.” (citation omitted)).Show More The Rahimi opinion, therefore, was tasked with resolving the ambiguities in Bruen that have troubled lower courts. To this end, the Court first rephrased the rule set forth in Bruen,39 39.Id. at 1897–98 (majority opinion).Show More then applied that rule to the statute at issue in Rahimi.40 40.Id. at 1901–02.Show More Neither the rule nor its application provides guidance to lower courts.

In Bruen, the Court wrote that, to withstand a Second Amendment challenge, a regulation must be “consistent with this Nation’s historical tradition of firearm regulation.”41 41.N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022).Show More This central holding of Bruen is not accompanied by an “exhaustive historical analysis . . . of the full scope of the Second Amendment,”42 42.Id. at 2134 (quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008)).Show More and has therefore become a source of confusion for lower courts.43 43.See, e.g., United States v. Bartucci, 658 F. Supp. 3d 794, 800 (E.D. Cal. 2023) (“However, the 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 when applying the new framework.”).Show More Judges were largely left to determine for themselves what our national tradition is and how a law can be consistent or inconsistent with that tradition. In Rahimi, the Court rephrased the rule to resolve this and other ambiguities.

Where Bruen says that a regulation must be “consistent with this Nation’s historical tradition of firearm regulation,”44 44.Bruen, 142 S. Ct. at 2126.Show More Rahimi says that a regulation must be “consistent with the principles that underpin our regulatory tradition.”45 45.Rahimi, 144 S. Ct. at 1898 (citing Bruen, 142 S. Ct. at 2131–34).Show More This rephrasing encourages courts to lower their standard for consistency with the regulatory tradition. To be constitutional, according to Rahimi, a modern regulation only needs to be consistent with the principles of our tradition, not identical to older regulations.46 46.See id. (recognizing that such a law must only comply with the principles underlying the Second Amendment, not be their “historical twin”).Show More Bruen already included language to that effect: “[E]ven if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”47 47.Bruen, 142 S. Ct. at 2133.Show More

The Court clearly considers this new “principles” language an important part of the Rahimi opinion because it is quoted four times in the concurring opinions.48 48.See Rahimi, 144 S. Ct. at 1926, 1929 (Jackson, J., concurring); id. at 1904 (Sotomayor, J., concurring).Show More Justice Sotomayor calls the quote “an important methodological point that bears repeating,”49 49.Id. at 1904.Show More while Justice Jackson describes it as a welcome “clarifying effort[].”50 50.Id. at 1926 (Jackson, J., concurring).Show More Welcome as it is, the effort fails­—the new phrasing is no less ambiguous than the first. None of the uncertainties inherent in the Bruen rule are addressed in the Rahimi restatement. Where our nation’s historical tradition is nebulous, the principles that underpin that tradition are equally undefined. There is no list of principles. There is no demarcation line for acceptable consistency. This rephrasing provides no guidance to lower courts applying Bruen.

Unaided by the restated rule, lower courts will look to the Supreme Court’s application of the rule to the facts in Rahimi. Though Bruen did not provide a comprehensive list of methods through which consistency with the national regulatory tradition could be established, the Court discussed historical analogues at length. Analogues are historical laws that are so similar to modern laws that the Court has chosen to treat them as strong evidence of the constitutionality of the modern law.51 51.Bruen, 142 S. Ct. at 2132–34.Show More

When applying the historical test in Rahimi, the Court parroted language in Bruen about analogically similar regulations. To be an analogue, a historical law must be “relevantly similar” to a modern regulation.52 52.Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 142 S. Ct. at 2132).Show More Relevant similarity is not fully defined in either Bruen or Rahimi, but both opinions cite two metrics as “central” considerations: the burden placed on the Second Amendment right and the justification for that burden.53 53.Id.; Bruen, 142 S. Ct. at 2133 (quoting McDonald v. Chicago, 561 U.S. 742, 767 (2010)).Show More The Court refers to these metrics as “how” and “why.”54 54.Rahimi, 144 S. Ct. at 1898.Show More The Court found surety laws and going armed laws to be analogues to § 922(g)(8) because they each share a how and a why.55 55.Id. at 1901 (“This provision is ‘relevantly similar’ to those founding era regimes in both why and how it burdens the Second Amendment right.” (quoting Bruen, 142 S. Ct. at 2132)).Show More

This analysis is firstly an unfaithful application of Bruen. When creating the test, the Court certainly discussed whether modern and historical laws were “relevantly similar,” but only in the context of “modern regulations that were unimaginable at the founding.”56 56.Bruen, 142 S. Ct. at 2132.Show More Domestic violence, tragically, is not the sort of modern problem that would have been unimaginable when the Constitution was written. Rather, it is a “general societal problem that has persisted since the 18th century.”57 57.Id. at 2131.Show More In Bruen, the Court wrote that “the lack of a distinctly similar historical regulation addressing” such persistent problems is “relevant evidence that the challenged regulation is inconsistent with the Second Amendment.”58 58.Id. (emphasis added).Show More

Though neither has been completely defined, “distinctly similar” seems to be a more stringent standard than “relevantly similar.” The difference in adverbs is no accident. It makes sense that legislation addressing new problems would be held to a lower standard of similarity. The Framers cannot have been expected to precisely address problems that did not exist at the Founding. Given the language in Bruen and the nature of domestic violence, the Court should have been searching for a distinctly similar analogue to § 922(g)(8). But none of the opinions in Rahimi make any attempt to identify such a regulation. Instead, the Court applied the relevantly similar standard, which seemed in Bruen to be reserved for unimaginable modern problems.

Even if “relevantly similar” is the appropriate standard, this analysis is not useful to lower courts because it raises the impossible question of generality. Rahimi requires courts to identify the how and the why for challenged statutes and proposed analogues but does not explain how general the how and why can be.

Take, for example, § 922(g)(8). At its most specific, the justification (why) for the law seems to be to protect people from being threatened or injured by intimate partners carrying firearms. But the Court in Rahimi finds a more general why: “to mitigate demonstrated threats of physical violence.”59 59.Rahimi, 144 S. Ct. at 1901.Show More It would be easy to find an even more general justification, such as “to reduce violence.” The more general the description of the why, the easier it is to identify an analogue with a matching justification. After all, at the root of every regulation are the ideas expressed in the Constitution’s preamble: “to form a more perfect Union” and “promote the general Welfare.”60 60.U.S. Const. pmbl. Show More At the highest level of generality, every law shares a why and could theoretically be used as an analogue for every other law.

Obviously, abstraction to the preamble of the Constitution is impermissible, but the acceptable level of generality remains to be identified. Justices Barrett, Jackson, and Kavanaugh each noted this problem in their Rahimi concurrences.61 61.Rahimi, 144 S. Ct. at 1926 (Barrett, J., concurring) (“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. . . . [R]easonable minds sometimes disagree about how broad or narrow the controlling principle should be.”); id. at 1929 (Jackson, J., concurring) (“[W]hether Bruen’s test is satisfied in a particular case seems to depend on . . . the level of generality at which a court evaluates those sources . . . .”); id. at 1916 n.4 (Kavanaugh, J., concurring) (noting that an “important question[]” that arises when applying “[p]ost-ratification history” is “the level of generality at which to define a historical practice”).Show More Rahimi requires judges to identify a burden and a justification for every challenged statute, but it does not explain how specific they need to be. Even Justice Barrett, whose concurrence expounds on the generality problem for roughly two pages, provides no answer: “Harder level-of-generality problems can await another day.”62 62.Id. at 1926 (Barrett, J., concurring).Show More

Apart from the generality issue, Rahimi’s application of the Bruen test leaves many other questions unanswered. What types of sources can be used to establish a historical tradition? What era must those sources be from? Does an analogue need to share both a how and a why with a modern law? What other features can render two laws relevantly similar? What features render two laws distinctly similar? How many analogues are required to establish a tradition? Can laws that were unconstitutional for Equal Protection reasons establish constitutionality under the Second Amendment?

Lower courts cannot be expected to glean any insight from the Court’s application of the Bruen test to the facts in Rahimi. It seems to ignore the language of Bruen, creating more questions than it answers. The analysis is also not novel. The Fifth Circuit performed a nearly identical analysis—complete with relevantly similar, how, and why—but came to the opposite conclusion.63 63.See United States v. Rahimi, 61 F.4th 443, 453–61 (5th Cir. 2023), rev’d, 144 S. Ct. 1889 (2024).Show More This subjectivity is the chief flaw in Bruen’s historical test. Judges and Justices reviewing the same historical sources consistently disagree about what they say.

The opinions in Rahimi illustrate this point. While every Justice but one signed the majority opinion, the dissenter was Justice Thomas, who wrote the majority opinion in Bruen.64 64.See Rahimi, 144 S. Ct. at 1894 (Thomas, J., dissenting); N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2121 (2022) (Thomas, J.).Show More According to the Supreme Court, the author of Bruen misapplied the historical test in his first attempt at applying it. Justice Thomas’s dissent evaluates the same laws as the majority opinion for the same features,65 65.Rahimi, 144 S. Ct. at 1933–41 (Thomas, J., dissenting).Show More subsequently finding that the burdens and justifications of the proffered analogues were not sufficiently analogous to those of the challenged statute.66 66.Id. at 1933. (“Despite canvassing laws before, during, and after our Nation’s founding, the Government does not identify even a single regulation with an analogous burden and justification.”).Show More

For a more striking example of Bruen’s subjectivity, consider the current circuit split regarding the constitutionality of 18 U.S.C. § 922(g)(1), the federal ban on firearm possession by felons.67 67.18 U.S.C. § 922(g)(1).Show More The Third Circuit held the statute unconstitutional under the Second Amendment,68 68.See Range v. Att’y Gen., 69 F.4th 96, 98 (3d Cir. 2023), vacated sub nom. Garland v. Range, 144 S. Ct. 2706 (2024) (mem.).Show More while the Eighth Circuit, reviewing largely the same historical evidence, held that such laws were within the nation’s regulatory tradition.69 69.See United States v. Jackson, 69 F.4th 495, 502–05 (8th Cir. 2023), vacated, 144 S. Ct. 2710 (2024).Show More The historical test is subjective and leads to inconsistent rulings.

This criticism of the Bruen test is not a hunch––rather, it is empirical. Recently published research compares federal judicial decisions in Second Amendment cases during three periods: Before District of Columbia v. Heller,70 70.554 U.S. 570 (2008).Show More between Heller and Bruen, and after Bruen.71 71.Brown et al., supra note 4 (manuscript at 1, 4–5) (analyzing the impact of the Supreme Court’s Second Amendment decisions on “gun-rights-related decisions—reported and unreported—issued between 2000 and 2023” by lower courts).Show More Heller was a landmark 2008 case in which the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for self-defense.72 72.Heller, 554 U.S. at 635.Show More The following statistics include only reported decisions. During the Heller era, when faced with a gun rights claim, judges appointed by Republican presidents cast votes in favor of gun rights 25% of the time,73 73.Brown et al., supra note 4 (manuscript at 15 fig.7, 16).Show More while Democrat-appointed judges favored gun rights 13% of the time.74 74.Id. (manuscript at 15 fig.7).Show More That 12% gap between Republican appointees and Democrat appointees grew to 18% in the Bruen era.75 75.Id.Show More

Even more disturbing results surface when the data is filtered for age. Republican appointees aged 56 or older voted in favor of gun rights 23% of the time in Heller-era decisions and 28% of the time in Bruen-era decisions.76 76.Id. (manuscript at 21 fig.10).Show More Democrat appointees in the same age group mirrored this five percent increase: 12% in the Heller era, 17% in the Bruen era.77 77.Id.Show More

Younger judges, though, exhibited remarkably different patterns. Democrat appointees under age 56 voted in favor of gun rights 17% of the time in the Heller era and 18% of the time in the Bruen era.78 78.Id.Show More Republican appointees in the same age group voted in favor of gun rights 35% of the time in the Heller era and a staggering 60% of the time in the Bruen era.79 79.Id.Show More Bruen caused a 5% increase of votes in favor of gun rights from older judges, regardless of what president appointed the judge. But younger Democrat appointees only cast 1% more votes in favor of gun rights, while younger Republican appointees saw a 25% increase—five times more than any other group.

The breakdown along age lines is notable because presidents making lifetime appointments tend to favor younger judges. President Trump once affirmed an advisor’s remarks on federal judges: “We like people in their thirties so they’re there for fifty years or forty years.”80 80.Jeremy Childs, Trump Wants to Shape Legal System for ‘50 Years’ by Appointing Young Judges, Rolling Stone (May 18, 2024), https://www.rollingstone.com/politics/politics-news/tr‌ump-young-judges-national-rifle-association-speech-1235023584/ [https://perma.cc/3UBB-MN2J].Show More Some scholars theorize that if judges have discretion in decision-making and perceive the opportunity for promotion, they will create rulings that align with the preferences of politicians who might promote them.81 81.See Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 Sup. Ct. Econ. Rev. 1, 5–6, 6 n.9 (1993); Lee Epstein, Some Thoughts on the Study of Judicial Behavior, 57 Wm. & Mary L. Rev. 2017, 2024 n.24, 2034 & n.91, 2046–47, 2047 n.166 (2016); Ryan C. Black & Ryan J. Owens, Courting the President: How Circuit Court Judges Alter Their Behavior for Promotion to the Supreme Court, 60 Am. J. Pol. Sci. 30, 30–32, 41 (2016); Lee Epstein, William M. Landes & Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice 337, 348–49 (2013).Show More Under this theory, young judges appointed by Republican presidents are likely to decide cases in a way that will please Republican politicians, and the converse is true of young Democrat-appointed judges. Bruen’s subjective test appears to have given judges the opportunity to do just that.

The solution to this problem is to create a rule that limits judicial discretion. Judges with clear rules are bound to apply them faithfully. In Rahimi, the Court was unable to refine Bruen’s test in any meaningful way, leaving judges unconstrained to make history agree with them.

Justice Kavanaugh and Justice Gorsuch each wrote concurring opinions in Rahimi to defend the historical test.82 82.See United States v. Rahimi, 144 S. Ct. 1889, 1907 (2024) (Gorsuch, J., concurring); id. at 1910 (Kavanaugh, J., concurring).Show More Justice Gorsuch asserted that the Bruen test is superior to the means-end inquiry that preceded it because the historical test “keeps judges in their proper lane, seeking to honor the supreme law the people have ordained rather than substituting our will for theirs.”83 83.Id. at 1909 (Gorsuch, J., concurring).Show More Justice Kavanaugh echoed this sentiment, writing that “[h]istory 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.”84 84.Id. at 1912 (Kavanaugh, J., concurring).Show More

The data says otherwise. Bruen’s historical test is poorly defined, confusing, and subjective. It lends itself to judicial partisanship. In Rahimi, the Court put lipstick on a pig. Neither the rephrased rule nor its application provides any real guidance to the chorus of lower courts struggling to apply the test. As long as Bruen stands, “the Rule of Law suffers.”85 85.Id. at 1929 (Jackson, J., concurring).Show More

  1.  142 S. Ct. 2111, 2122, 2127 (2022). ↑
  2.  Id. at 2129–30. ↑
  3.  Id. ↑

  4. Rebecca Brown, Lee Epstein & Mitu Gulati, Guns, Judges, and Trump, 74 Duke L.J. Online (forthcoming 2025) (manuscript at 7), https://papers.ssrn.com/sol3/papers.cfm?abstra‌ct_id=4873330 [https://perma.cc/A8CW-G48Z] (asserting that Bruen caused a 455% increase in annual Second Amendment challenges). ↑

  5.  United States v. Rahimi, 144 S. Ct. 1889, 1927 & n.1 (2024) (Jackson, J., concurring). ↑
  6.  Id. at 1903–04 (Sotomayor, J., concurring, joined by Kagan, J.). ↑
  7.  Id. at 1894–95 (majority opinion). ↑
  8.  Id. at 1895. ↑
  9.  Id. ↑
  10.  Id. (quoting Joint Appendix at 2–3, Rahimi, 144 S. Ct. 1889 (No. 22-915)). ↑
  11.  Id. (citing Joint Appendix at 3–7, Rahimi, 144 S. Ct. 1889 (No. 22-915)). ↑
  12.  Id. (citing Joint Appendix at 5–6, Rahimi, 144 S. Ct. 1889 (No. 22-915)). ↑
  13.  Id. ↑
  14.  Id. ↑
  15.  Id. ↑
  16.  18 U.S.C. § 922(g)(8)(A). ↑
  17.  Id. ↑
  18.  Id. § 922(g)(8)(C). ↑
  19.  Rahimi, 144 S. Ct. at 1896. ↑
  20.  Id. (citing Motion to Dismiss Indictment at 1, United States v. Rahimi, No. 21-cr-00083 (N.D. Tex. May 7, 2021)). ↑
  21.  Id. ↑
  22.  Id. ↑
  23.  Id. ↑
  24.  United States v. Rahimi, 61 F.4th 443, 460, 461 (5th Cir. 2023), rev’d, 144 S. Ct. 1889 (2024). ↑
  25.  United States v. Rahimi, 143 S. Ct. 2688, 2688–89 (2023) (mem.). ↑
  26.  United States v. Rahimi, 144 S. Ct. 1889, 1897, 1903 (2024) (criticizing both lower courts generally and the Fifth Circuit specifically for misunderstanding recent Second Amendment decisions). ↑
  27.  Id. at 1903 (quoting N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022)). ↑
  28.  Id. at 1898 (quoting Bruen, 142 S. Ct. at 2132). ↑
  29.  Id. at 1901 (quoting Bruen, 142 S. Ct. at 2132). ↑
  30.  Id. at 1900. ↑
  31.  Id. ↑
  32.  Id. at 1901 (second and third alterations in original) (quoting 4 William Blackstone, Commentaries on the Laws of England 149 (Richard Burn & John Williams eds., 10th ed. 1787)). ↑
  33.  Id. at 1899 (finding that surety laws and affray laws developed as “two distinct legal regimes” to address “firearms violence”). ↑
  34.  Id. at 1903. ↑
  35.  Id. at 1902–03. ↑
  36.  Id. at 1927 (Jackson, J., concurring). ↑
  37.  See id. at 1927 n.1. ↑
  38.  Id. at 1903–04 (Sotomayor, J., concurring, joined by Kagan, J.) (“Today the Court applies its decision in New York State Rifle & Pistol Assn., Inc. v. Bruen for the first time.” (citation omitted)). ↑
  39.  Id. at 1897–98 (majority opinion). ↑
  40.  Id. at 1901–02. ↑
  41.  N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). ↑
  42.  Id. at 2134 (quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008)). ↑
  43.  See, e.g., United States v. Bartucci, 658 F. Supp. 3d 794, 800 (E.D. Cal. 2023) (“However, the 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 when applying the new framework.”). ↑
  44.  Bruen, 142 S. Ct. at 2126. ↑
  45.  Rahimi, 144 S. Ct. at 1898 (citing Bruen, 142 S. Ct. at 2131–34). ↑
  46.  See id. (recognizing that such a law must only comply with the principles underlying the Second Amendment, not be their “historical twin”). ↑
  47.  Bruen, 142 S. Ct. at 2133. ↑
  48.  See Rahimi, 144 S. Ct. at 1926, 1929 (Jackson, J., concurring); id. at 1904 (Sotomayor, J., concurring). ↑
  49.  Id. at 1904. ↑
  50.  Id. at 1926 (Jackson, J., concurring). ↑
  51.  Bruen, 142 S. Ct. at 2132–34. ↑
  52.  Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 142 S. Ct. at 2132). ↑
  53.  Id.; Bruen, 142 S. Ct. at 2133 (quoting McDonald v. Chicago, 561 U.S. 742, 767 (2010)). ↑
  54.  Rahimi, 144 S. Ct. at 1898. ↑
  55.  Id. at 1901 (“This provision is ‘relevantly similar’ to those founding era regimes in both why and how it burdens the Second Amendment right.” (quoting Bruen, 142 S. Ct. at 2132)). ↑
  56.  Bruen, 142 S. Ct. at 2132. ↑
  57.  Id. at 2131. ↑
  58.  Id. (emphasis added). ↑
  59.  Rahimi, 144 S. Ct. at 1901. ↑
  60.  U.S. Const
    .

    pmbl

    .

    ↑

  61.  Rahimi, 144 S. Ct. at 1926 (Barrett, J., concurring) (“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. . . . [R]easonable minds sometimes disagree about how broad or narrow the controlling principle should be.”); id. at 1929 (Jackson, J., concurring) (“[W]hether Bruen’s test is satisfied in a particular case seems to depend on . . . the level of generality at which a court evaluates those sources . . . .”); id. at 1916 n.4 (Kavanaugh, J., concurring) (noting that an “important question[]” that arises when applying “[p]ost-ratification history” is “the level of generality at which to define a historical practice”). ↑
  62.  Id. at 1926 (Barrett, J., concurring). ↑
  63.  See United States v. Rahimi, 61 F.4th 443, 453–61 (5th Cir. 2023), rev’d, 144 S. Ct. 1889 (2024). ↑
  64.  See Rahimi, 144 S. Ct. at 1894 (Thomas, J., dissenting); N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2121 (2022) (Thomas, J.). ↑
  65.  Rahimi, 144 S. Ct. at 1933–41 (Thomas, J., dissenting). ↑
  66.  Id. at 1933. (“Despite canvassing laws before, during, and after our Nation’s founding, the Government does not identify even a single regulation with an analogous burden and justification.”). ↑
  67.  18 U.S.C. § 922(g)(1). ↑
  68.  See Range v. Att’y Gen., 69 F.4th 96, 98 (3d Cir. 2023), vacated sub nom. Garland v. Range, 144 S. Ct. 2706 (2024) (mem.). ↑
  69.  See United States v. Jackson, 69 F.4th 495, 502–05 (8th Cir. 2023), vacated, 144 S. Ct. 2710 (2024). ↑
  70.  554 U.S. 570 (2008). ↑
  71.  Brown et al., supra note 4 (manuscript at 1, 4–5) (analyzing the impact of the Supreme Court’s Second Amendment decisions on “gun-rights-related decisions—reported and unreported—issued between 2000 and 2023” by lower courts). ↑
  72.  Heller, 554 U.S. at 635. ↑
  73.  Brown et al
    .

    , supra note 4 (manuscript at 15 fig.7, 16). ↑

  74.  Id. (manuscript at 15 fig.7). ↑
  75.  Id. ↑
  76.  Id. (manuscript at 21 fig.10). ↑
  77.  Id. ↑
  78.  Id. ↑
  79.  Id. ↑
  80.  Jeremy Childs, Trump Wants to Shape Legal System for ‘50 Years’ by Appointing Young Judges, Rolling Stone (May 18, 2024), https://www.rollingstone.com/politics/politics-news/tr‌ump-young-judges-national-rifle-association-speech-1235023584/ [https://perma.cc/3UBB-MN2J]. ↑
  81.  See Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 Sup. Ct. Econ. Rev. 1, 5–6, 6 n.9 (1993); Lee Epstein, Some Thoughts on the Study of Judicial Behavior, 57 Wm. & Mary L. Rev. 2017, 2024 n.24, 2034 & n.91, 2046–47, 2047 n.166 (2016); Ryan C. Black & Ryan J. Owens, Courting the President: How Circuit Court Judges Alter Their Behavior for Promotion to the Supreme Court, 60 Am. J. Pol. Sci. 30, 30–32, 41 (2016); Lee Epstein, William M. Landes & Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice 337, 348–49 (2013). ↑
  82.  See United States v. Rahimi, 144 S. Ct. 1889, 1907 (2024) (Gorsuch, J., concurring); id. at 1910 (Kavanaugh, J., concurring). ↑
  83.  Id. at 1909 (Gorsuch, J., concurring). ↑
  84.  Id. at 1912 (Kavanaugh, J., concurring). ↑

  85.  Id. at 1929 (Jackson, J., concurring). ↑

Moore v. United States: Avoiding the Tough Questions

Introduction

Charles and Kathleen Moore owed less than $15,000 due to the Mandatory Repatriation Tax (“MRT”),1 1.I.R.C. § 965.Show More a tax enacted as part of the 2017 Tax Cuts and Jobs Act. While the economic consequences of the tax were relatively inconsequential for the Moores, they hoped to convince the Supreme Court to make highly consequential changes to tax law more generally by challenging the MRT.2 2.See Brief for Petitioners at 12–13, Moore v. United States, 144 S. Ct. 1680 (2024) (No. 22-800).Show More The challenge put large portions of the Internal Revenue Code—provisions providing trillions in tax revenue—at risk.3 3.See infra notes 17, 91–92.Show More The case was also highly relevant to the constitutionality of wealth taxes, a topic of rising interest among scholars and politicians.4 4.See, e.g., Thomas Kaplan, Bernie Sanders Proposes a Wealth Tax: “I Don’t Think That Billionaires Should Exist,” N.Y. Times (July 16, 2020), https://www.nytimes.com/2019/09/2‌4/us/politics/bernie-sanders-wealth-tax.html [https://perma.cc/SRB9-MNES]; Jonathan Curry, UC Berkeley Economists Chosen as Tax Notes Federal’s Persons of the Year, Tax Notes (Dec. 16, 2019), https://www.taxnotes.com/special-reports/tax-policy/uc-berkeley-eco‌nomists-chosen-tax-notes-federals-persons-year/2019/12/13/2b617 [https://perma.cc/P622-Y‌W95].Show More In Moore v. United States,5 5.144 S. Ct. 1680 (2024).Show More the Court upheld the MRT and related tax provisions while strategically trying to avoid providing explicit guidance on other hot-button issues.

The basic facts of the case are simple. The Moores bought 13% of an Indian company, KisanKraft, in 2006 for $40,000.6 6.Id. at 1686.Show More While profitable, KisanKraft never distributed any income to the Moores or any American shareholders.7 7.Id.Show More Even so, the MRT subjected the Moores to a tax on 13% of KisanKraft’s accumulated income from 2006 to 2017, resulting in the Moores owing $14,729 in taxes.8 8.Id.Show More They challenged the constitutionality of the MRT, but the district court dismissed the challenge, and the U.S. Court of Appeals for the Ninth Circuit affirmed.9 9.Id.Show More

The first Part of this Comment provides high-level background on the MRT,10 10.The MRT is an “extraordinarily complicated” tax, so a detailed explanation is outside the scope of this Comment. Sean P. McElroy, The Mandatory Repatriation Tax Is Unconstitutional, 36 Yale J. on Regul. Bull. 69, 76 (2018).Show More general tax principles, and taxation provisions in the Constitution. The second Part outlines the various opinions in Moore. Finally, the third Part takes a critical look at the opinions and argues that the Court’s decision is broader than it appears. Further, it argues that in the Court’s effort to defend long-standing precedent against the Moores’ challenge, the Court failed to adequately justify its decision. Additionally, the third Part provides thoughts on what Moore means for the constitutionality of a wealth tax.

  1.  I.R.C. § 965. ↑
  2.  See Brief for Petitioners at 12–13, Moore v. United States, 144 S. Ct. 1680 (2024) (No. 22-800). ↑
  3.  See infra notes 17, 91–92. ↑
  4.  See, e.g., Thomas Kaplan, Bernie Sanders Proposes a Wealth Tax: “I Don’t Think That Billionaires Should Exist,” N.Y. Times (July 16, 2020), https://www.nytimes.com/2019/09/2‌4/us/politics/bernie-sanders-wealth-tax.html [https://perma.cc/SRB9-MNES]; Jonathan Curry, UC Berkeley Economists Chosen as Tax Notes Federal’s Persons of the Year, Tax Notes (Dec. 16, 2019), https://www.taxnotes.com/special-reports/tax-policy/uc-berkeley-eco‌nomists-chosen-tax-notes-federals-persons-year/2019/12/13/2b617 [https://perma.cc/P622-Y‌W95]. ↑
  5.  144 S. Ct. 1680 (2024). ↑
  6.  Id. at 1686. ↑
  7.  Id. ↑
  8.  Id. ↑
  9.  Id. ↑

  10.  The MRT is an “extraordinarily complicated” tax, so a detailed explanation is outside the scope of this Comment. Sean P. McElroy, The Mandatory Repatriation Tax Is Unconstitutional, 36 Yale J. on Regul. Bull. 69, 76 (2018). ↑

Modus Operandi and Mindreading in Diaz v. United States

Introduction

Witnesses with the requisite knowledge or expertise often present, as an opinion, their answer to a case’s “ultimate issue.” They may opine, say, that a product was unreasonably dangerous in a product liability suit, or that a patent was infringed in a patent infringement suit, or that damages of a certain amount are appropriate, even if the jury is tasked with answering that same question.1 1.6 Michael H. Graham, Handbook of Federal Evidence § 704:1 (9th ed. 2023). There is no comprehensive list of all possible ultimate issues. See 29 Charles Alan Wright & Victor Gold, Federal Practice and Procedure § 6284, at 469 (2d ed. 2016).Show More This principle is unambiguously announced in Rule 704(a) of the Federal Rules of Evidence. It reads: “An opinion is not objectionable just because it embraces an ultimate issue.”2 2.Fed. R. Evid. 704(a) (emphasis added).Show More

The Rules feature only one caveat, articulated in Rule 704(b): “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”3 3.Fed. R. Evid. 704(b).Show More In other words, if the contents of a criminal defendant’s mind are an ultimate issue, no expert may share an opinion on that topic. “Those matters are for the trier of fact alone.”4 4.Id.Show More Rule 704(b) recognizes the risk of an expert “intruding” on the jury’s exclusive prerogative to assess a defendant’s mental state.5 5.United States v. DiDomenico, 985 F.2d 1159, 1164 (2d Cir. 1993).Show More

Last Term, in Diaz v. United States,6 6.144 S. Ct. 1727, 1730 (2024).Show More the Supreme Court considered a category of opinion testimony which tiptoes up to that forbidden line. Delilah Diaz was crossing the United States-Mexico border when a border patrol officer found roughly 55 pounds of methamphetamine hidden in two concealed spaces in her car.7 7.Brief for the United States at 6, Diaz, 144 S. Ct. 1727 (No. 23-14).Show More Shortly after arrest, she disclaimed knowledge of the drugs, attributing them to a supposed boyfriend.8 8.Id.Show More Her story was full of implausibilities,9 9.Id. at 6–7.Show More though, and she was charged with knowingly and intentionally importing methamphetamine.10 10.Id. at 8.Show More Still, she proceeded to trial with the defense that she was a “blind mule,” or an unknowing courier of drugs.11 11.See Brief for Petitioner at 4-7, Diaz, 144 S. Ct. 1727 (No. 23-14).Show More Her mental state—that is, whether she knew about the drugs inside her vehicle—was the only live issue for the jury.

At trial, the prosecution called HSI Special Agent Andrew Flood as an expert on drug trafficking operations. Agent Flood carefully avoided testifying directly to Diaz’s mental state. Instead, he testified that “most” drug couriers are aware of the drugs in their presence.12 12.Petition for a Writ of Certiorari at 17, Diaz,144 S. Ct. 1727 (No. 23-14).Show More Put differently, he testified to the typical mental state—indeed, to the mens rea, or guilty mind—of a “class” of persons to which Diaz belonged. The trial court admitted his testimony, unpersuaded by Diaz’s protests that Agent Flood’s testimony was the “functional equivalent” of testimony regarding her mental state.13 13.Id. app. at 31a–33a; Joint Appendix at JA10, Diaz,144 S. Ct. 1727 (No. 23-14).Show More

The U.S. Court of Appeals for the Ninth Circuit affirmed.14 14.United States v. Diaz, No. 21-50238, 2023 WL 314309 (9th Cir. Jan. 19, 2023), aff’d, 144 S. Ct. 1727, 1730 (2024).Show More It held that testimony regarding the infrequency of unknowing drug couriers is admissible, provided that the expert does not express an “‘explicit opinion’ on the defendant’s state of mind.”15 15.Id. at *2 (citation omitted).Show More The Ninth Circuit acknowledged, however, that the Fifth Circuit had reached the opposite conclusion in a line of similar cases.16 16.Id.Show More The Supreme Court granted certiorari to resolve the deepening circuit split.17 17.See Petition for a Writ of Certiorari, supra note 12, at 8–13 (cataloguing the circuit split).Show More

The Supreme Court also affirmed, albeit on slightly different grounds. The majority opinion, written by Justice Thomas,18 18.Diaz, 144 S. Ct. at 1735. Justice Thomas wrote the majority opinion. Id. at 1730. Chief Justice Roberts joined that opinion, as did Justices Alito, Kavanaugh, Barrett, and Jackson. Id. Justice Jackson penned a concurrence. Id. at 1736 (Jackson, J., concurring). And Justice Gorsuch, joined by Justices Sotomayor and Kagan, dissented. Id. at 1738 (Gorsuch, J., dissenting).Show More focused on the meaning of the word “about.”19 19.See Fed. R. Evid. 704(b) (“[A]n expert witness must not state an opinion about whether the defendant did or did not have a mental state . . . .” (emphasis added)).Show More It declined Diaz’s suggestion that the Court adopt the Oxford English Dictionary definition, which lists “concerning” and “in reference to” as equivalent terms.20 20.Brief for Petitioner, supra note 11, at 18.Show More Instead, it opted to interpret the word in its context. It found that “[t]he words surrounding ‘about’ make clear that Rule 704(b) . . . does not preclude testimony ‘about’ mental-state ultimate issues in the abstract.”21 21.Diaz, 144 S. Ct. at 1735.Show More Rule 704(b) only “targets conclusions ‘about whether’ a certain fact is true.”22 22.Id.Show More

Accordingly, the majority laid out a new bright-line rule. Rule 704(b) applies to the “precise topic” of the defendant’s mental state but not testimony that just “concerns or refers to that topic.”23 23.Id.Show More So, expert testimony about the mental state of all members of a class of defendants is impermissible, because, logically speaking, it invariably applies to the precise mental state of any member of that class.24 24.Id. at 1734.Show More Testimony regarding the mental state of most members of a class, by contrast, is permissible, because it “does not necessarily describe [the defendant’s] mental state.”25 25.Id. at 1733–34.Show More Agent Flood’s statements therefore fell outside the Rule’s ambit. Indeed, the at-issue testimony, according to the majority, amounted to nothing more than the assertion that “Diaz was part of a group of persons that may or may not have a particular mental state.”26 26.Id. at 1734.Show More This left the jury to handle the ultimate issue: was Diaz one of the few unknowing drug couriers or not?27 27.Id. at 1735.Show More

The majority’s analysis was concentrated on Rule 704, and a narrow interpretation of it at that. Rule 704, however, does not “set a standard of admissibility.”28 28.3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 7:20, at 885 (4th ed. 2013).Show More It “merely removes a formal objection that might otherwise stand in the way.”29 29.Id.Show More As a result, the Court missed two adjacent problems with the at-issue testimony, either of which could have independently rendered it inadmissible.

Part I of this Comment examines the first of those problems: the striking resemblance between Agent Flood’s testimony and inadmissible criminal propensity evidence. In arguably his most problematic statement, Agent Flood effectively introduced crimes committed by persons similarly situated to the defendant. The only relevance of those other acts was a bare (and plainly improper) suggestion that the frequency of others’ past crimes made Diaz’s conduct more likely to be criminal, as well. Part II considers the testimony’s inherent lack of reliability. It argues that the majority intermingled two distinct categories of testimony: a) contextual scientific testimony related to a mental condition; and b) speculative testimony concerning a group of individuals’ inner thoughts. The former can be indispensable to criminal trials, while the latter is unreliable and unprovable by nature. The Court needlessly gave its stamp of approval to the parts of Agent Flood’s testimony which fell unmistakably into the latter category. Finally, Part III suggests an alternative, moderate holding. If the Court had added two caveats to its interpretation of “about”—caveats that addressed quasi-propensity evidence and “mindreading”30 30.Diaz, 144 S. Ct. at 1743 (Gorsuch, J., dissenting).Show More—it could have simultaneously preserved the admissibility of important evidence that bears on mental state and precluded prejudicial testimony like Agent Flood’s. This proposed holding, it argues, is both fairer and more faithful to the Rules.

  1.  6 Michael H. Graham, Handbook of Federal Evidence § 704:1 (9th ed. 2023). There is no comprehensive list of all possible ultimate issues. See 29 Charles Alan Wright & Victor Gold, Federal Practice and Procedure § 6284, at 469 (2d ed. 2016). ↑
  2.  Fed. R. Evid. 704(a) (emphasis added). ↑
  3.  Fed. R. Evid. 704(b). ↑
  4.  Id. ↑
  5.  United States v. DiDomenico, 985 F.2d 1159, 1164 (2d Cir. 1993). ↑
  6.  144 S. Ct. 1727, 1730 (2024). ↑
  7.  Brief for the United States at 6, Diaz, 144 S. Ct. 1727 (No. 23-14). ↑
  8.  Id. ↑
  9.  Id. at 6–7. ↑
  10.  Id. at 8. ↑
  11.  See Brief for Petitioner at 4-7, Diaz, 144 S. Ct. 1727 (No. 23-14). ↑
  12.  Petition for a Writ of Certiorari at 17, Diaz, 144 S. Ct. 1727 (No. 23-14). ↑
  13.  Id. app. at 31a–33a; Joint Appendix at JA10, Diaz, 144 S. Ct. 1727 (No. 23-14). ↑
  14.  United States v. Diaz, No. 21-50238, 2023 WL 314309 (9th Cir. Jan. 19, 2023), aff’d, 144 S. Ct. 1727, 1730 (2024). ↑
  15.  Id. at *2 (citation omitted). ↑
  16.  Id. ↑
  17.  See Petition for a Writ of Certiorari, supra note 12, at 8–13 (cataloguing the circuit split). ↑
  18.  Diaz, 144 S. Ct. at 1735. Justice Thomas wrote the majority opinion. Id. at 1730. Chief Justice Roberts joined that opinion, as did Justices Alito, Kavanaugh, Barrett, and Jackson. Id. Justice Jackson penned a concurrence. Id. at 1736 (Jackson, J., concurring). And Justice Gorsuch, joined by Justices Sotomayor and Kagan, dissented. Id. at 1738 (Gorsuch, J., dissenting). ↑
  19.  See Fed. R. Evid. 704(b) (“[A]n expert witness must not state an opinion about whether the defendant did or did not have a mental state . . . .” (emphasis added)). ↑
  20.  Brief for Petitioner, supra note 11, at 18. ↑
  21.  Diaz, 144 S. Ct. at 1735. ↑
  22.  Id. ↑
  23.  Id. ↑
  24.  Id. at 1734. ↑
  25.  Id. at 1733–34. ↑
  26.  Id. at 1734. ↑
  27.  Id. at 1735. ↑
  28.  3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 7:20, at 885 (4th ed. 2013). ↑
  29.  Id. ↑

  30.  Diaz, 144 S. Ct. at 1743 (Gorsuch, J., dissenting). ↑

©Virginia Law Review Association. All rights reserved.