Noah Feldman
Gun rights are not unlimited according to an 8-1 Supreme Court decision that draws back from the extreme Second Amendment decision the court made two years ago in the notorious Bruen case. The holding in the new case, United States v. Rahimi, is that the government may bar people subject to domestic-violence restraining orders from owning guns.
But the real significance of the case lies in the way the court’s conservatives splintered over the “history-and-tradition” approach that Justice Clarence Thomas used in Bruen. In that case, he wrote the opinion. In this one, Thomas found himself the lone dissenter.
The court remains committed to its conservative constitutional revolution; but in the gun context, at least, it is now pulling back from the brink of absurdity.
Rahimi’s case arose solely because of the Bruen precedent. Even though Zackey Rahimi was subject to a restraining order for domestic violence, the U.S. Court of Appeals for the Fifth Circuit said he couldn’t be punished for owning a gun — a violation of a federal statute that says people subject to domestic violence restraining orders cannot own firearms. The Fifth Circuit’s argument was that the U.S. has no history or tradition of denying gun rights to domestic abusers. In his dissent, Thomas said the Fifth Circuit got it right.
The narrow opinion by Chief Justice John Roberts substantially weakened Bruen. Roberts analogized denying the gun law at issue in Rahimi to two historical types of weapons regulations. One type were so-called “surety” laws, which said that people who were suspected of being dangerous needed to provide what were effectively cash bonds if they were going to carry weapons. If they used the weapons wrongfully, they lost their money. The other type of law treated as an analogue by Roberts is called a “going armed” law. Such laws prohibited “going armed, with dangerous and unusual weapons, to terrify the people of the land.”
In theory, Roberts’ opinion just applies the Bruen rule, which says there must be history and tradition to support a gun regulation. In practice, it shows that when the justices want to allow gun regulation, they will. The truth is that analogies are highly malleable. The New York concealed-carry law struck down in Bruen could easily have been analogized to the “going armed” laws, since open carry can be a means of terrifying the people of the land, or at least the subway. (The court’s three liberals, in their concurrences, all said the Bruen history and tradition test was wrong from the outset.)
In light of the obvious pullback from Bruen — and intense criticism of “history and tradition” as a judicial methodology — the three Trump-appointed conservatives all wrote individual concurrences. None joined any of the others’, a stark sign of division. All set out to clarify their own theories of how to interpret not just the Second Amendment but the Constitution as a whole. And they differ.
Gorsuch, the leading proponent of literalist textualism when it comes to interpreting statutes, brought a variant of his textualism to the Constitution. He said, essentially, that history only matters to ascertain the meaning of the Second Amendment’s text because the amendment enshrined into law a “preexisting” right of the people. Pre-ratification history tells you what that right was. History serves the text, which is primary.
Justice Brett Kavanaugh wrote a lengthy disquisition on interpreting “vague” constitutional text. What you need to know is that, to Kavanaugh, it’s all vague — including the pretty clear language of the Second and even First amendments. Kavanaugh insisted that judges must follow “history, not policy” in interpreting vague constitutional provisions. That history can come from before the ratification of the relevant constitutional text or after. In essence, the judges are trying to get a gestalt sense of what the vague text means, and they need to look backwards to do it, eschewing (magically) their own policy preferences. Oh, and they can consider precedent, too.
Justice Amy Coney Barrett’s concurrence acidly referred back to her concurrence in Bruen, in which she effectively warned that “history and tradition” was unmoored from classic originalism because it went too far back and too far forward. Barrett skewered “tradition,” saying (for the second time this term) that “tradition unmoored from original meaning is not binding law.” And she expressly restricted relevant history to the period immediately before the ratification of a constitutional provision — an attack on the back-to-the-Middle Ages approach Thomas took in Bruen.
Barrett isn’t a Gorsuch literalist, however. She accepts, as does Kavanaugh, that vague constitutional provisions can be “liquidated” by history, which is James Madison-speak for the idea that historical practice after ratification can give meaning to a vague provision. This admission is in fact a devastating blow to originalism, which is why Gorsuch won’t make it. But Barrett is too smart not to make the concession. She’s also astute enough to realize it won’t shake the established dogma of originalism too much.
The upshot is that the new generation of conservatives realizes they went too far in Bruen and that “history and tradition” is a land mine. Their efforts to figure out what to do next will shape the future of Second Amendment law — and much, much more.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”
