The United States Supreme Court is expected to issue its highly anticipated decision in United States v. Rahimi by the end of its current term. The case, which considers whether the federal law barring individuals subject to protection orders from possessing firearms violates the Second Amendment, provides the Court an early opportunity to clarify its June 2022 decision in New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court articulated a new test for determining the constitutionality of modern-day gun regulations which requires an examination of the nation’s historical tradition of firearms laws. The Bruen test, described in more detail below, has created chaos in the lower courts, with opposing outcomes on a wide variety of gun regulations. Despite this disarray, it was somewhat unusual for the Court to grant certiorari on another Second Amendment case so quickly after Bruen. The Court’s hands are somewhat tied; it cannot, realistically, overrule Bruen after only two years in effect (nor is the government requesting that outcome). On the other hand, the Court also cannot allow Bruen to continue to produce the varied results it has. Rather, the Court can – and must – use Rahimi as a vehicle for providing additional guidance to the lower courts. It must not only reverse the Fifth Circuit’s decision, but do so in a way that offers a roadmap to lower courts to achieve consistency and commonsense results on the constitutionality of gun regulations moving forward.

Are administrative agencies illegitimate? A threat to democracy? A threat to liberty? To human welfare? To defining constitutional commitments? Many people think so. But an understanding of the actual operation of the administrative state, seen from the inside, makes it difficult to object to “rule by unelected bureaucrats” or “an unelected fourth branch of government.” Such an understanding casts a new light on some large objections from the standpoint of democracy, liberty, and welfare; indeed, it makes those objections seem coarse and largely uninformed. What is needed is more conceptual and empirical work on welfare and distributive justice, and on how regulators can increase both.