…Rahimi exposes two different problems with Bruen: The first problem is that its command to courts to measure contemporary gun regulations by the yardstick of “historical analogues” yields a profoundly subjective test that will lead principled judges acting reasonably to reach diametrically opposed conclusions about the same laws. As Rahimi makes clear, whether a historical example is sufficiently “analogous” will almost always be in the eye of the beholder.
After all, if “dangerousness” laws aren’t a sufficient analogy for § 922(g)(8), which exists entirely because of the danger those subject to DV-related restraining orders pose to their intimate partner, what could be other than a DV-specific restriction from 1791 (or 1868)?
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