In the landmark 2022 Supreme Court case New York State Rifle & Pistol Association v. Bruen, Justice Clarence Thomas, writing for the majority, created a new standard for balancing the Second Amendment rights of the individual against the safety of the population. Before Bruen, the courts applied nuanced scrutiny tests to gun restrictions, asking whether the law under review had some reasonable relationship to an important government interest. If it did, the law survived. Bruen threw that calculation out the window as it overturned a New York law restricting the accessibility of pistol carry licenses.

Now, the Court decided, the state’s burden is to establish that a gun restriction comports with America’s tradition of firearms regulation as it existed around the time of the 1791 ratification of the Second Amendment.

But the Supreme Court’s decision last month in its latest gun-rights case, U.S. v. Rahimi, flies in the face of the new standard it established just two years ago. The Court, in an 8-1 ruling against Texas man Zackey Rahimi, upheld a federal law that prohibits firearms possession by individuals subject to domestic-violence restraining orders.

How did the Court justify its decision in light of 18th-century legal traditions, as Bruen requires? The majority argued that restrictions from that era on the rights of “dangerous” persons give precedent to modern laws that restrict the Second Amendment rights of domestic abusers.

Thomas dissented from that ruling, arguing Rahimi should not have been denied his Second Amendment rights. Under the Bruen standard he established, Thomas is correct. Undoubtedly, Rahimi is a very dangerous man, but domestic violence would not have cost him his gun rights in 1791. Besides, restrictions on “dangerous” persons of that era targeted rebels and other threats to the established government, not individuals with no political aims, like Rahimi.

In the Rahimi case, the majority appears willing to abandon its strict historical standard to support the public interest of denying guns to domestic abusers. If the Court really wants to keep us safer from gun violence while remaining consistent, it must modify its Bruen standard to allow the government flexibility in enforcing prohibitions against dangerous persons. And perhaps Congress should reduce the potential for future legal conflict by paring down the categories of people whom it denies their constitutional rights under federal law.

Jim Astrachan (jastrachan@gdldlaw.com) teaches Second Amendment law at the University of Baltimore Law School and is an instructor for the Johns Hopkins University’s Odyssey program.