The Bruen decision was supposed to put an end to the lower courts interpreting the law however they wanted, but that was probably never a viable option. Too many judges are more rationalizing than rational, looking for anything they can cling to in order to issue the ruling they wanted to give all along. 

Yet the history, text, and tradition standard made it a bit harder for them to do so. They have to have something to cling to. With intermediate scrutiny, it was easy. Now, it's a lot more difficult, which is how Bruen was supposed to end such nonsense.

Unfortunately, it hasn't, and as a result, court rulings are conflicting with one another.

First, a federal judge in Kansas appointed by former President Donald Trump caught national attention on Aug. 21 after he dismissed a case for a defendant facing felony charges for possessing a machinegun. Later in the week, two federal appeals courts swung the opposite direction to uphold other restrictions on firearms, with one decision upholding bans on felons possessing guns and a separate appellate court agreeing to uphold a Maryland handgun licensing law.

Andrew Willinger, executive director of the Center for Firearms Law at Duke Law School, told the Washington Examiner the pattern of divergent Second Amendment rulings does not come as a surprise.

“It does not seem like Rahimi has clarified a whole lot,” Willinger said.

Willinger said the lack of congruence among lower courts could be due in part to the infancy of the Rahimi precedent, which was decided on June 21, noting some courts are still digesting its meaning and the extent that it affected the history and tradition test set in Bruen.

“We’ve seen as well that these decisions were drafted, or at least they were early-stage drafts, before Rahimi, and then the judges kind of went back and maybe added or rewrote portions or what have you. But I think we’re seeing, as you might expect, judges kind of grasping on to different pieces of Rahimi,” Willinger added.

U.S. District Judge John W. Broomes, the author of the machine-gun decision in Kansas, wrote that the government had not “met its burden under Bruen and Rahimi to demonstrate through historical analogs that regulation of the weapons at issue in this case are consistent with the nation’s history of firearms regulation.” He ruled the federal ban was unconstitutional as applied to one criminal defendant, which leaves the federal machinegun ban in place.

Jacob Charles, an associate law professor at Pepperdine University who tracks Second Amendment cases, said the Kansas ruling is a direct fallout from the Bruen decision.

“It gives lower court judges the ability to pick and choose the historical record in a way that they think the Second Amendment should be read,” Charles said.

I'm ready to argue with Charles on this, but he's probably not wrong. After all, I'm still baffled that a licensing law could be upheld under the Bruen test which also was applied to a ruling that found the ban on machine guns was unconstitutional. 

Like I said at the top of this piece, though, judges aren't so much rational as rationalizing. They took the latitude offered by Rahimi and are trying to justify any manner of what they wanted with it. That includes a licensing requirement in Maryland.

Now, I could see how the bar on felons owning guns would be justified. After all, Rahimi didn't even involve someone convicted of a crime yet, so there's really no reason to think that such a thing wouldn't apply to those who have been. I don't agree with it, but that's not nearly the stretch we see with the Maryland case.

Which means we're likely to start getting cases back before the Supreme Court that deal with this conflict.

That's right. Nothing at all was clarified by Rahimi, which isn't surprising. I figured the previous way Bruen was being interpreted was at least more objective, but Rahimi basically justified judges rationalizing history to fit whatever box they wanted to fill already. It opened the floodgates and this is what happens.

If you give anti-gun voices an inch, they take light years. We've seen it too many times to think anything else, and putting on a black robe and sitting with a gavel close at hand doesn't change that in the least.