What constitutes a historical analogue has, however, not been defined. In an interesting turn of events, Judge Carlton Reeves of the Southern District of Mississippi Court proposed appointing a historian to help him “identify and sift through authoritative sources on founding-era firearms restrictions” to decide the constitutionality of a federal law barring felons from possessing firearms. Scholars have also questioned the premise that the Second Amendment created an individual right to bear arms, saying that the right was first established in 2008 in District of Columbia v. Heller

Bruen had a major impact. Lower courts overturned thirty-one gun laws in the eight months following the Bruen decision, a study by gun-safety organisation Giffords found.

The decision in Rahimi however, saw the majority in the Supreme Court state that the lower courts did not have to identify exact replicas of historic laws to uphold modern-day gun restrictions. The opinion, authored by Chief Justice John G. Roberts Jr., said that a law can impose criminal penalties for gun possession without violating the Second Amendment as long as a judge finds the person to be a danger to others.

Authoring a concurrence, Justice Ketanji Brown Jackson, a member of the court’s liberal wing, highlighted that Bruen had created uncertainty, suggesting that it was the high court’s fault for not providing clarity for lower courts to follow.

Justice Amy Coney Barrett, a conservative, wrote a concurrence where she questioned how lower courts were seeking quasi-parallel historic laws while considering a modern law. “Imposing a test that demands overly specific analogues has serious problems….It forces 21st-century regulations to follow late-18th-century policy choices, giving us ‘a law trapped in amber.’” she wrote.

The Court’s sole dissenting member, Justice Clarence Thomas maintained that the Supreme Court’s decision in Bruen was straightforward. Modern gun laws needed to be “consistent with the nation’s historical tradition of firearm regulation” to ensure they did not violate the Second Amendment.

Other gun cases: recent and pending

The Supreme Court has been facing a slew of gun rights cases, and is likely to face more.

In last October, the US Supreme Court refused to revive a controversial Missouri law that prohibits local law enforcement from helping federal officials enforce federal gun regulations. It also sided with the Biden administration on ghost guns, blocking a Texas federal judge’s ruling that would have prevented the government from enforcing a rule by the Bureau of Alcohol, Tobacco, Firearms and Explosives against two manufacturers of gun parts. (Ghost guns are firearms without serial numbers that virtually anyone can assemble from parts, often purchased in a kit.) In both cases, the Court’s conservative justices dissented.

Now Rahimi is expected to influence outcomes in several other pending cases.

One important case centres on the prosecution of Hunter Biden, President Joe Biden’s son, who was convicted for three felonies pertaining to the purchase of a revolver in 2018, when he allegedly lied about his drug addiction on a federally-mandated gun-purchase form. His lawyers have indicated that they will appeal his conviction.

Another case that bears relevance to Hunter Biden’s and has been appealed to the Supreme Court is one where a Mississippi man challenged a federal law which criminalises owning a weapon while being an “unlawful user of or addicted to” drugs. The 5th Circuit ruled in the man’s favour. A similar challenge was raised in U.S vs. Daniels, which was decided by the 10th Circuit Court of Appeals. In another case, a Pennsylvania man challenged a federal law prohibiting felons, including non-violent ones, from possessing guns; the man had been convicted of welfare fraud for lying on a form to obtain food stamps.

Other cases waiting in the wings deal with challenges to Illinois’ ban on “assault weapons” and New York’s regulations on carrying concealed firearms.

Besides gun rights, the Court has also handed down a slew of decisions on constitutional matters in June. One such case, Vidal v. Elster, was a trademark case centring around the phrase “Trump too small,” inspired by a debate joke in 2016.

Interestingly, the case saw Amy Coney Barrett break with fellow Conservative justice Clarence Thomas, on the question of historical analogues and precedent, albeit in a case related to the First Amendment instead of the Second. She wrote, in a part concurrence, that the Court in its opinion, “never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question.”

“Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests. But a rule rendering tradition dispositive is itself a judge-made test,” she wrote, “And I do not see a good reason to resolve this case using that approach rather than by adopting a generally applicable principle.”

Public attitudes towards guns

As gun control cases play out in the Courts, guns remain a sensitive issue in politics and the public domain. In the U.S, conservatives largely tend to favour protection and expansion of rights to own guns, while liberals tend to argue for gun control.

According to a Pew Research Center survey, around eight-in-ten Biden supporters (83%) say the increase in guns in the U.S. is at least somewhat bad for society. Only 21 % of Trump voters hold this position; 40% believe it is good, while 13% believe it is neither good nor bad.

Meanwhile, 85% of Trump supporters say it is more important to protect the right of Americans to own guns as compared to 19% of Biden supporters.

This is amid a rising tide of gun violence, with mass shootings in publics spaces and schools remaining a major safety concern.

In another Pew Research Center study, a majority of public school teachers- 59%- say they are at least somewhat worried about shootings taking place at their school, including 18% who say they are extremely or very worried. About a quarter (23%) say that they experienced a lockdown in 2022-23 related to a gun or the suspicion of a gun in their school. 

The impact of gun violence is also unevenly distributed across demograpgics. In her concerrence in Rahimi, Justice Sonia Sotomayor highlighted that women living domestic abusers are five times more likely to be killed if there is access to a gun. A U.S-based study also noted that more than 70 people are shot and killed each month by a partner.

Also read:Explained | Gun laws in countries outside the U.S.

Interpreting the Constitution

Much of the judicial debate surrounding the Second Amendment boils down to varying theories of interpreting the American Constitution, authored in 1787. The Second Amendment itself was ratified in 1791.

There are several theories of statutory interpretation, used to better understand the bare text of the law— including Constitutions. Former Associate Justice of the U.S Supreme Court Oliver Wendell Holmes Jr. said, “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.” Justice Holmes, Jr. is one of the key names associated with legal realism; this quote summarises the core tenet at the heart of this theory. Legal realism is defined as a theory that all law derives from prevailing social interests and public policy. In legal realism, judges are expected to consider not merely the rules, but also social interests and public policy to decide a case.

Legal realism can be contrasted with legal formalism, which postulates that “legal rules stand separate from other social and political institutions.” Thus once laws have been created, judges are to apply them to the facts of a case, without taking into account matters relating to social interests or public policy. 

A specific theory that has been subject of much discussion in the context of the US Supreme Court is originalism, which postulates that the text in the law, particularly in the United States Constitution, should be interpreted as it was understood at the time of adoption of the Constitution. This original meaning is to be gauged from the ideas of the framers of the constitution, or the Founding Fathers, or from public events, debates, dictionaries and documents belonging to that time. One of the key proponents of originalism was Supreme Court Justice Antonin Scalia.

Originalism itself can be contrasted with the living constitutionalism theory, which asserts that the Constitution is living and can evolve with society, and that the meaning of constitutional texts changes over time.

Legal experts and essayists have drawn out threads and highlighted the jurisprudence and legal philosophies underpinning the individual decision-making of judges. Further, judges themselves have revealed the principles that guide their judging during confirmation hearings, or speeches and articles in various public fora. It is these principles that can be gleaned from their current decisions in Constitutional cases as well.