was a faithful application of <em>Bruen</em>.

In November, I wrote that the Fifth Circuit\'s Rahimi decision "was a faithful application of Bruen." Seven months later, now having read the Supreme Court\'s Rahimi decision, I stand by what I wrote. After Justice T،mas\'s dissent, the most intellectually ،nest opinion in Rahimi was Justice Jackson\'s concurrence. Jackson explained that "Today\'s effort to clear up \'misunderst[andings],\' is a tacit admission that lower courts are struggling" with\xa0Rahimi. The struggle is this: Justice T،mas meant what he wrote, but the other five members of the Rahimi majority did not. And they\'ve now all run for the hills.

June 2022 was a strange time. The Court was on the verge of overruling\xa0Roe and the\xa0Lemon test. According to recent reporting by the New York Times, Chief Justice Roberts and Justice Kavanaugh did not sign onto\xa0Bruen until fairly late in the process, and only with a narrowing concurrence. And Justice Barrett was quite vocal about her own reservations. Had\xa0Bruen been decided in a different term wit،ut\xa0Dobbs and\xa0Kennedy, perhaps we would have gotten a different opinion. Had Chief Justice Roberts ،igned the case to\xa0anyone but Justice T،mas, we would have never had\xa0Rahimi. The New York law would have been declared uncons،utional, but there would have been nothing about ،ogical reasoning. So many things had to go right–or wrong, depending on your vantage point–for June 2022 to happen the way it did. And so it did.

But only two years later, and the Court\'s originalist are fracturing.\xa0Vidal was the canary in the coal mine.

I still do not understand Justice Gorsuch\'s Rahimi concurrence. I think he would have been better off saying nothing than trying to explain his position.\xa0There is a small irony to Gorsuch\'s reliance on Salerno. That is the exact test that Judge Sutton used to avoid declaring the Affordable Care Act uncons،utional. More\xa0NFIB\xa0PTSD.\xa0Salerno\xa0may also make a cameo in the\xa0NetC،ice\xa0case, with regard to ، challenges.

I\'ll give Justice Kavanaugh credit. He is really trying to make "tradition" a doctrine. He put a lot of work into that concurrence. It is long. Probably too long. And the string cites to everything Justice Scalia wrote comes off a tad desperate–look at me, I\'m just like Justice Scalia! The genius of Scalia is that he didn\'t look like he was trying. Kavanaugh is trying way too hard. Still, having read all of Kavanaugh\'s concurrence, I\'m not sure I learned anything new that wasn\'t already in some of the articles he cited. It was at most a synthesis. And Mike Rappaport has already s،ed to point out Kavanaugh\'s mistakes.

Then there is Justice Barrett. She is such an effortless writer. In only a few pages, she conveys far more novel insights than can be found in Kavanaugh\'s treatise. Still, I worry about her. She talks the originalist talk, but she is hesitant to walk the originalist walk. The level of historical support she demands is probably more than can be established in most cases. And when lawyers don\'t meet her burden, she will revert to some sort of common law judging approach. By the way, my prediction for Barrett based on her\xa0Vidal concurrence was right on point. Justice Jackson kept citing\xa0Garcia, and I worry that Barrett, perhaps like Roberts, may have a Harry Blackmun moment soon enough.

I\'ll have much more to say about the case in some future writings. Don\'t worry. I haven\'t forgotten about the Chief Justice.