Is the Supreme Court leaving strict originalism behind?
A majority of the justices are now realizing that the "history and tradition" test is subjective and unworkable
The end of this Supreme Court term has many on the edge of our seats, waiting for a handful of blockbuster rulings to drop before the Court takes off for the summer. Catch me on CNN at 8:20 a.m. and on ABC News Live today at 1, 2 and 3 p.m. to discuss the latest.
Importantly, last week the Court upheld a federal law that prevents individuals with domestic violence restraining orders from possessing firearms. Many folks are calling it a win in the fight against gun violence and for women’s rights. But this was not a hard case. The Court should never have taken it, so the fact that in 2024 this is, in fact, a “win” is pretty sad.
The decision is nonetheless important for another reason: The right-wing justices appear to be backing off their stringent philosophy of “originalism,” which is showing itself for the sham that it is. Conservatives duped many Americans into believing that sending lower courts on journeys back in time machines is the best way to decide whether to uphold laws on the books today. The rationale has been that tethering modern policy to 1791 (Bruen’s approach to guns) and 13th Century England (Dobbs’ approach to decisions to terminate pregnancies) somehow constrains judges’ power. The opposite is true. The justices’ purported adherence to “originalism” has instead triggered a massive power-grab on the part of the Supreme Court, which is not accountable to the voters.
The 8-1 majority opinion in U.S. v. Rahimi signaled that many of the justices might be realizing they have been taking things too far.
I wrote about it for The Bulwark.
What was Rahimi about?
Mr. Rahimi was charged with violating a federal statute that prohibits people who have domestic violence restraining orders against them from having a firearm. The restraining order must meet specific criteria in order to be charged with this crime. Specifically, the order must contain a finding that the individual “‘represents a credible threat to the physical safety’ of his intimate partner or his or his partner’s child,“‘ or it must “‘explicitly prohibit[s] the use,’ attempted use, or threatened use of ‘physical force’ against those individuals.”
Mr. Rahimi challenged his conviction under this law on the grounds that it violated his Second Amendment rights.
Chief Justice Roberts began his majority opinion by outlining the unsettling facts that gave rise to Rahimi’s restraining order. Three and a half years ago, Rahimi met up with his girlfriend and the mother of his child for lunch. While eating, an argument broke out, and when she tried to leave, Rahimi “grabbed her by the wrist, dragged her back to his car, and shoved her in, causing her to strike her head against the dashboard. When he realized that a bystander was watching the altercation, Rahimi paused to retrieve a gun from under the passenger seat.” When the girlfriend tried to run, Rahimi fired his gun. A judge later issued a protective order against him, barring his access to firearms, which he later violated.
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The parking lot incident was only one of the many assaults that Rahimi’s victim reported to the courthouse when she asked for the restraining order. Rahimi violated it by going to her house at night and reaching out to her through various social media accounts. Rahimi also threatened a different woman with a gun in another incident, leading him to be charged with aggravated assault with a deadly weapon. All the while, he was a suspect in at least five other shootings.
Police obtained a warrant to search his home. They found a rifle and a pistol. Prosecutors then charged him under the federal statute.
Rahimi challenged his indictment for possessing a firearm while subject to a domestic violence restraining order under the Second Amendment. The District Court denied the motion to dismiss the indictment, and Rahimi appealed. While the appeal was pending, the Supreme Court created a new test for Second Amendment challenges in a case called New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), which required courts to look at the “history and tradition” of the country’s firearm regulations to determine whether a law is constitutional today.
Although the “history and tradition” test was new for the Second Amendment, the Court had used it in Dobbs to eradicate women’s right to terminate pregnancies under Roe v. Wade.
On Friday, the majority opinion (joined by everyone but Justice Thomas, who wrote Bruen) reconfigured Bruen’s test. Comparing the federal law to two “similar” arcane laws, Roberts concluded that an individual who poses an obvious threat to others may be disarmed. This policy-based analysis looked to the purposes behind gun laws—not just whether historical gun laws support the modern statute. Thomas dissented.
What is “originalism,” and how does it differ from other forms of judicial interpretation?
Before diving into the majority opinion, let’s take a moment to understand how the Supreme Court interprets the laws challenged before them. As I have explained before, lawyers and judges employ many different tools of interpretation to interpret and apply ambiguous areas of the Constitution and American law. There are many tools — including textualism, originalism, functionalism, judicial precedent, separation of powers, statutory law, federalism, and deference to individual rights against government overreach.
Because the Constitution is old and vague, judges inevitably have to find ways to make hard judgment calls. How they do that depends on which tools they choose. Progressives (and the Supreme Court majority for many decades) often use balancing tests that look to the purposes behind a law and compare it to the constitutional interest at stake. Prior to Bruen, the Court looked to the government’s reasons behind a gun law (public safety) and weighed it against the extent of the gun’s restrictions on the right to bear arms (which prior to 2008, only applied to militias, not individuals). But make no mistake: none of the tests reveal black-and-white answers.
Originalism is a theory that urges interpretation of the Constitution and modern laws based on the meaning of the law’s text at the time it was enacted. For constitutional rights, it holds that judges must interpret the Constitution according to the Founding generation (or later for the more recent amendments). Otherwise, originalists claim, judges will be making laws, which is the job of legislatures.
Along these lines, Justice Thomas adopted a “history and tradition” test in Bruen to determine whether today’s gun laws violate the Second Amendment, requiring courts to “assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.” In Bruen, the Court applied the test to strike down a 100-year-old New York statute requiring permits to carry concealed guns. The problem with Bruen was that Thomas cherry-picked snippets of history that supported striking down the New York law — while ignoring other laws from the same time period that went the other way. The same thing happened in Dobbs — writing for the majority, Justice Samuel Alito ignored laws that supported women’s autonomy over their own pregnancies.
So it’s a myth to treat “history and tradition” as somehow objective. It is not, as the majority recognized in Rahimi.
What did the Supreme Court say in Rahimi?
Chief Justice Roberts applied “history and tradition” to compare the modern law to two old laws: one that allowed magistrate judges to require individuals suspected of future misbehavior to post a bond and another that “provided a mechanism for punishing those who had menaced others with firearms.” There was no law, however, that banned domestic violence abusers from owning guns. That is not surprising. In 1791, women were controlled by their husbands and had very few rights. Many black women were enslaved.
Roberts nonetheless concluded that these analogous laws were enough to “confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” The majority’s revised test for Second Amendment cases is that judges must now look for gun prohibitions that are “‘relevantly similar’ to those founding era regimes in both why and how it burdens the Second Amendment right.”
Take that in: why and how. That requires judges to subjectively assess the purposes behind a law, which is exactly what conservatives assail progressives for doing.
Justice Roberts further explained that firearm laws have never been entirely boundless. Instead, “[f]rom the earliest days of the common law,” they “have included provisions barring people from misusing weapons to harm or menace others.” The Fifth Circuit, and Justice Thomas in his dissent, were wrong to “read Bruen to require a ‘historical twin’ rather than a ‘historical analog.’”
What this means is that Rahimi will likely enable more gun laws to stand.
In Justice Sonia Sotomayor’s concurring opinion, which was joined by Justice Elena Kagan, she wrote: “In short, the Court’s interpretation permits a historical inquiry calibrated to reveal something useful and transferable to the present day, while the dissent would make the historical inquiry so exacting as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding.”
What’s the bottom line?
Rahimi provides a momentary sigh of relief. The justices seem to have admitted that originalism cannot provide definitive jurisprudence standards. The smattering of concurring opinions differ on how exactly the “history and tradition” should apply, but all seem to agree that it is not a litmus test.
We seem to be returning to a modicum of common sense. Whew.
Follow the facts,
KW.
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Thank you for this analysis, Ms Wehle.
The presention of evidence and the careful conscious unfolding of events and choices and consequences gives me understanding that I can use, both in terms of method and a sense of credible thinking that can be shared.
Separately, ...
when thinking about the implications of the perspective of originalism, it occurs to most people immediately that, had that been the conscious perspective of the larger group that constituted the framers of the Constitution, that
the Constitution would be a distinctly different document;
and, the extent to which the assumptions of the basic personal and societal vital importance of human agency and personal voluntary choice and action these framers and their contemporary political activist citizens would be different, would be assumptions much more limited in character and limited in so far as involvement in forming and maintaining governance democratically.
It is not, it seems to me, a contradiction to remind originalists of these weaknesses while also acknowledging the many assumptions in the form of political and social norms that were simply not present among them and that we rely on today, such as the norms included in formulating and inclusion of the 13th, 14th and 15th Amendments to the Constitution. It should always be acknowledged that at any moment any person's 'understanding' has limits in respect of experience available and reasoned interpretation, i.e., understanding is partial and incomplete, is abstract and is the abstraction of much but not all experience and thought.
It is telling that members of the Court, e.g., Thomas and Alito, formulate decisions that seem to indicate that they, themselves, feel constrained to not think beyond past practical understandings of human capacity and of events and the character of human societies. Why consciously impose on one's self such constraint? Is it possible to ignore the productive and mutually beneficial outcomes that are brought about and improved day by day, day after day, by most people by each of the latter's own personal agency? Is it reasonable to only focus on 'ordinary weaknesses and biases' (who am I quoting, ... I forget ... maybe Ben Franklin?...), or even more significantly to allow the conventional biases toward or against specific groups of people (a tendency so well explained by the late Ruth Bader Ginsburg), to constrain anyone in the novel use of human capacity of thoughtful awareness and evaluation of experience?
Do others here see this situation differently? Have we each sufficient voluntary agency -- or not-- to choose, then act, then honestly evaluate the consequences and move forward with the making of experience-tempered or lessons-tempered choices, both individually and cooperatively?