Abstract
Four years ago, the Supreme Court revolutionized Second Amendment law in New York Rifle & Pistol Ass’n, Inc. v. Bruen by instituting a test concentrated on text, history, and tradition. To uphold a firearm regulation, the government must demonstrate a relevantly similar historical analogue. Shortly after, the Court affirmed but clarified its position in United States v. Rahimi by performing the Bruen analysis at a higher level of generality and rejecting a challenge to 18 U.S.C. 922(g)(8). The Court’s evolving Second Amendment jurisprudence offers fertile ground for the Court’s originalists to elucidate their perception of constitutional interpretation. In Rahimi, Justice Brett Kavanaugh and Justice Amy Coney Barrett penned concurring opinions weighing the utility and function of historical evidence post-dating the ratification of the Second Amendment. This Note considers those opinions and advocates for Justice Barrett’s approach: post-ratification history is useful to explicate the meaning of the Constitution’s text. But unmoored from the text it cannot be dispositive. Justice Barrett’s method reduces judicial cherry-picking while adhering to Bruen and District of Columbia v. Heller.
Recommended Citation
Joel Myers,
Principle Over Pedigree: United States v. Rahimi, Post-Ratification History, and the Case for Justice Barrett’s Approach,
104 Neb. L. Rev. 795
(2026).
Available at: https://digitalcommons.unl.edu/nlr/vol104/iss4/4