Turning Away from Originalism
Fellow justices reject Clarence Thomas’s “history and tradition” test.
LAST WEEK, THE SUPREME COURT upheld a federal statute criminalizing the possession of firearms by individuals with domestic violence restraining orders against them. Commentators have depicted the ruling in United States v. Rahimi as a “victory” for gun safety and women’s rights, even though it only retained the status quo. But the opinion is important for another reason: It signals what could be the start of a major course correction in the conservative justices’ approach to constitutional interpretation.
Two years ago this week, the Court handed down two rulings—the Dobbs decision that overturned Roe v. Wade and the Bruen decision that struck down a century-old New York law restricting the public carrying of firearms—that both sent lower courts on journeys in time machines to go back to unspecified periods in history to decide whether to uphold laws on the books today. Rahimi, though, signals that the majority of justices now realize that such a test is unworkable without conservative judges, like progressives, having to exercise some subjective discretion.
Rahimi is a case that should never have been brought. It was linked to a man charged under federal law for owning a firearm despite a restraining order against him for firing a gun after the mother of his child was fleeing an assault, plus at least six additional shootings. His appeal was invited by the Court’s Bruen decision, which claimed to “clarify” Second Amendment jurisprudence. In reality, Bruen rewrote the test for judging the legitimacy of gun laws, replacing a longstanding balancing test (which looked at public safety versus gun ownership) with a vague “history and tradition” test.
Justice Clarence Thomas wrote the majority opinion in Bruen. Two years later, Thomas is the sole dissenting justice in Rahimi. Nobody signed on to his draconian version of originalism, instead offering a smorgasbord of concurring opinions that together amount to a tacit admission that originalism under Bruen is unworkable. Truth be told, the justices are now back to balancing policy principles—precisely what conservative commentators regularly assail the liberal justices for doing. Only instead of looking at modern society for guideposts on how best to strike the balance, conservatives on the Court purport to remained focused on America in the Founding era. This makes even less sense under Rahimi than it did under Bruen.
TO BE FAIR, THOMAS’S VERSION of the history and tradition test is, on its face, intellectually honest. The idea behind it is that, at least in theory, judges must stay out of the business of policymaking. Instead, originalism holds that judges are to interpret a law based on the meaning of the law’s text at the time it was enacted. In the case of provisions of the Constitution, originalism thus claims to tether judges’ interpretations to the understandings of the Founding generation (or later for the more recent amendments). Otherwise, originalists argue, judges have too much leeway to make laws from the bench when that job is for legislatures.
That’s precisely the infirmity for which the right has long critiqued liberal and progressive judges, pejoratively calling their jurisprudential philosophy one of “living constitutionalism.” Scholars and the more left-leaning jurists usually prefer to call that method of constitutional interpretation “functionalism” or “purposivism,” or in Justice Stephen Breyer’s word, “pragmatism.” The idea is that judges inevitably judge—they have to exercise discretion in hard cases, including when constitutional language is vague, so the best way to constrain that discretion is to look behind the purposes of a particular constitutional provision and read the Constitution today in a manner that is consistent with those broader principles.
However, Thomas, in his dissenting opinion in Rahimi, explained that although “a historical law need not be a ‘historical twin,’ it must be ‘well-established and representative’ to serve as a historical analogue.” Thomas traced the history of firearms in 1791, when the Second Amendment was adopted, and concluded that “the Government does not identify even a single regulation with an analogous burden and justification.” Unsurprisingly, at a time when women could not even vote, own property, serve on a jury, or have custody of their own children, there were no laws protecting them against gun violence from their domestic partners—that is, their husbands. Many black women were legally enslaved. Under a history and tradition test designed to keep judges from moving beyond their constitutional lane, looking for a very close historical analogue—even if wrongheaded and callous as a matter of policy—at least comports with the alleged rationale behind the Bruen test.
Chief Justice Roberts’s opinion in Rahimi, in which all the other justices but Thomas joined, abandoned Thomas’s approach, instead reaching for more generic laws for comparison. Roberts landed on two: “surety laws,” which authorized magistrate judges to require individuals suspected of future misbehavior to post a bond, and “going armed” laws, which “provided a mechanism for punishing those who had menaced others with firearms.” These were close enough, Roberts reasoned, 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.”
Of course, “relatively similar” is not a black and white test.
Other conservatives justices took pains to try and flesh out this revised version of originalism in separate concurring opinions. Justice Brett Kavanaugh broke down the historical policy inquiry into “pre-ratification history, post-ratification history, and precedent,” without settling on which of these factors is paramount or how to identify the relevant time periods or analogous laws. He nonetheless insisted that this method is better than progressives’ balancing tests.
Justice Amy Coney Barrett’s opinion was an opus to honesty. She raised “questions . . . about the time period relevant to discerning the Second Amendment’s original meaning—for instance, what is the post-1791 cutoff for discerning how the Second Amendment was originally understood?” And: “Must the government produce a founding-era relative of the challenged regulation—if not a twin, a cousin? Or do founding-era gun regulations yield concrete principles that mark the borders of the right?” In short, she wrote: “Historical regulations reveal a principle, not a mold.” Principle-based thinking ultimately is policy-based thinking—precisely what the prior courts, under the tried-and-true balancing tests, have done for decades. And they’ve done it for a modern world.
Justice Ketanji Brown Jackson catalogued in a footnote the veritable mess that Bruen created by forcing lower court judges to become amateur historians, with scant guidance on what matters and why. In Bruen, even a one-hundred-year-old concealed carry permit law was not venerable enough for Thomas, who ignored similar laws of the same era. As Barrett asked, there’s no telling how many laws are enough for history and tradition and how to pick between competing laws from the same timeframe. The decisions that go into delimiting what past laws are worthy of inclusion in a history and tradition test are unavoidably acts of judicial discretion. The test ultimately invites the Supreme Court to substitute its policy judgment for that of Congress or, in Bruen, the New York legislature.
Rahimi is good news to the extent that it reveals that the justices are retreating from the delusion that originalism can ever provide definitive standards for jurisprudence. It also lays before the public some of the shortcomings of originalism, and helps retire the myth that conservatives don’t make policy from the bench. They do. Hopefully, Rahimi marks just the beginning of a turn toward common sense.
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