Don’t Be Fooled. The Supreme Court Hasn’t Cleaned Up Its Mess on Guns.

The Supreme Court’s decision in United States v. Rahimi, released Friday, is a rare bit of good news for advocates of gun control, not to mention victims of domestic violence. But the sweeping pro–Second Amendment opinion that Justice Clarence Thomas authored two years ago still threatens many state and federal statutes that regulate who can carry a gun.

Thomas’ opinion in Bruen v. New York Pistol and Rifle Association, which reads more like a political screed than a SCOTUS decision, held that all gun regulations are “presumptively unconstitutional” and can remain in place only if their defenders can show that a historically analogous law existed in the 18th century, when the country was founded. Rahimi does not fix many of the problems that Bruen’s sloppy and unworkable “history and tradition” test created, and nowhere is that more apparent than in state criminal courts.

In December 2019, Zackey Rahimi’s girlfriend, identified in court documents as “CM,” sought a protective order after Rahimi dragged her across a parking lot, slammed her into a car, then fired his gun in her direction when she ran. Rahimi later threatened to shoot her if she reported the incident. In the months after she obtained the protection order, Rahimi was involved in five other shootings, threatened a different woman with a gun, and continued to harass CM. He was eventually arrested and convicted of having a gun while subject to a protective order, as well as several other crimes.

Then came SCOTUS’s decision in Bruen, and Rahimi appealed. Given that there were no laws at the founding that would have disarmed Rahimi for threatening his romantic partner, the 5th Circuit Court of Appeals overturned his conviction. The government appealed.

SCOTUS’s decision in Rahimi walks a fine line. With an 8–1 majority, it upholds a federal statute that makes it a crime for a person to possess a gun when he is the subject of a domestic protection-from-abuse order, but it does not give up on the Bruen test. Instead, the opinion concludes that founding-era laws that restrained individuals who posed a credible threat to another person are an adequate historical analog for the law that Rahimi challenged. This is a bit of a logical leap, given the narrow way that Thomas explained the test in Bruen, but an immense relief for those Americans who believe that domestic abusers should not have guns.

But no one should be too relieved, because in refusing to cast aside Bruen’s framework, the court does not fix the mess that Bruen has created.

Some of our most fundamental restrictions on gun possession simply do not have founding-era analogs. These include “felon-in-possession” laws, which forbid people convicted of felonies from owning guns; laws that require a permit to carry a firearm; and laws that prohibit people under the age of 21 from buying or carrying a gun. These regulations are designed to prevent dangerous, immature, and untrained people from carrying lethal weapons, and they are critical to public safety. But since Bruen, gun rights activists and defense attorneys have been systematically challenging them in court.

Felon-in-possession laws are perhaps most at risk. These statutes serve an important public-safety function; people with past felony convictions who are caught with guns are statistically likely to be dangerous. Among those convicted of felon in possession, the recidivism rate is exceedingly high: 68 percent are rearrested within eight years; of those, 29 percent are arrested for assault. These rates are significantly higher than the recidivism rates for people convicted of crimes that do not involve guns. Yet some lower federal courts, applying Bruen, have felt compelled to rule that felon-in-possession laws violate the Second Amendment.

A recent 9th Circuit opinion gives us a taste of whom Bruen can benefit. Steven Duarte was arrested in possession of a .38-caliber handgun and a loaded magazine. He had five prior felony convictions in the seven years preceding: one for selling drugs, one for vandalism, one for being a felon in possession of a firearm, and two for evading police. Duarte was again convicted of being a felon in possession (any one of his five priors was enough to qualify him) and sentenced to four years in prison. But in May, the 9th Circuit overturned his conviction, reasoning that there was no founding-era analog to the federal felon-in-possession statute.

As the opinion in Duarte points out, the only people the founders were interested in permanently disarming were Native Americans, British loyalists, and slaves. The 3rd and 7th circuits have also limited who can be prosecuted for felon in possession, ruling that past convictions for nonviolent offenses cannot bar a person from owning a gun. And there is likely support for this view on the current Supreme Court; in 2019, as a 7th Circuit judge, Justice Amy Coney Barrett penned a dissent stating that felon-in-possession laws were unconstitutionally overbroad.

If felon-in-possession laws are stuck down, it will be a seismic shift in the American criminal legal system, and one that will likely make the country more dangerous. Between 19 million and 24 million people are excluded from buying guns because of their prior convictions, and any honest analysis suggests that these individuals are much more likely to use guns to commit crimes than are people with no criminal records. Relatedly, felons themselves are at an elevated risk of suicide; the risk increases exponentially if the person has access to a firearm. But laws that make it a crime for felons to have guns were enacted only after World War I, which means that they’re easy to challenge under Bruen. The holding of Rahimi—which permits disarming an individual once a court has found them to present a credible threat—likely permits temporarily disarming people convicted of violent crimes. However, that wouldn’t change the result for guys like Duarte, whose past convictions did not involve violence.

The Bruen-related headaches in prosecuting illegal gun possession do not end there; this year, the 3rd Circuit ruled that 18-year-olds have a Second Amendment right to carry firearms. But two of the states in the 3rd Circuit, Pennsylvania and New Jersey, require permits for a person to legally carry and limit permits to people over the age of 21. Since the circuit court’s decision, the Philadelphia Public Defender has challenged all prosecutions of 18-, 19- and 20-year-olds charged with illegal gun possession. Notably, this age group is the most likely to be involved in violent crime. Police, prosecutors, and courts are faced with a quandary: Can teenagers who have a constitutional right to carry guns be denied a permit? Can they be prosecuted for illegal gun possession if the state does not allow them to apply for permits?

Bruen-based challenges are causing long delays as motions to dismiss and appeals are litigated, leaving behind results that are confusing and sometimes inequitable, and, most of all, causing massive uncertainty for judges, lawyers, and defendants alike. The law works best as a check on human behavior when it is easy to understand and outcomes are predictable. Criminal sanctions are most likely to deter unwanted behavior when punishments are swift and certain.

Gun laws in this country have never been perfect; among other problems, there are massive racial disparities in prosecutions for illegal gun possession, stemming from policing practices. But in sowing chaos on the streets and in the courts, Bruen has made matters much worse and is directly undermining the efficacy of the law.

The Supreme Court took an important first step away from Bruen last week, but it did not give up on Thomas’ unworkable and arcane theory of gun regulation. Here’s hoping that Rahimi is just the beginning.

This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)