Conservative Justices Lay Down an Ominous Marker in Gun Case

While the Supreme Court is in the course of deciding a raft of monumentally consequential cases dealing with such things as gun rights, election law and presidential immunity, it is important not to lose track of the fact that how these cases are being decided may provide even greater insight into what is in store for us than what is being decided.

No case in recent memory better illustrates how the Court’s analytical approach can dictate outcomes in cases raising crucial constitutional questions than its decision last week United States v. Rahimi.

Don’t be distracted by the fact that the Rahimi decision came out right, making the only ruling that could make even a modicum of sense – that a violent, dangerous individual who had been found by a court to pose a credible threat to the physical safety of another may be “temporarily disarmed consistent with the Second Amendment. Look a little deeper at how it was decided, as opposed to what it decided.

Or let me do it for you. The decision, after all, is 103 pages long, including the opinion of the court, several concurring opinions, and a dissent.

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First, some context.

In recent years, the conservative majority on the Supreme Court has employed a strand of constitutional and statutory interpretation called “originalism.” The goal of originalism is to try to determine the original understanding of the framers who drafted and ratified the constitutional and statutory provisions in question – or at least that used to be the goal.

The particular strain of originalism currently in favor among the SCOTUS conservatives focuses on attempting to ascertain the original public meaning of the language in question. This is accomplished largely through a historical analysis of what the words were understood to mean at various times before, during and after the drafting or ratification. This is somewhat of a departure from an earlier strain of originalism that focused primarily on an attempt to ascertain the original intent of the drafters. Original-intent originalism focused more on the contemporary legislative history and less on mining pre- and post-ratification history for a “public” understanding. This strand has largely been abandoned, although in certain circumstances (seemingly whenever it might support the conclusion the justices want to reach) legislative intent is incorporated into the analysis.

The liberal justices employ a different approach to constitutional analysis, although both Justice Elena Kagan (“we are all originalists”), the late Justice Ruth Bader Ginsburg (“I count myself as an originalist too”), and others have paid lip service to their own brand of “originalism.” What Kagan and Ginsburg meant was that they shared the larger goal of applying the broad principles – the blessings of liberty and equality – that motivated the drafters. But the “originalism” of Kagan and Ginsburg bears little resemblance to the originalism as currently practiced by the Court’s conservative majority.

It is more difficult to assign a catchy name to the judicial philosophy employed by the liberal justices because monikers like “living constitutional approach” are clunky and have been branded as pejorative by conservatives. Whatever the brand, the idea is that the Constitution is not “fixed in amber,” and must be more pragmatically interpreted with an eye toward the changing needs and values of society. Justice Anthony Kennedy – no liberal – was a champion of this point of view, emphasizing the evolving understanding of liberty and equality in the landmark decision requiring the states to recognize same sex marriages, Obergefell v. Hodges. Justice Kennedy’s opinion in Obergefell laid out the living constitution approach eloquently:

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”  

Last week’s decision in Rahimi is a primer on the real-world consequences of these dueling judicial philosophies, and a portent of bad things to come.

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Applying the right’s brand of “original public meaning” originalism with all the subtlety of a jackhammer, Chief Justice Roberts’s majority opinion in Rahimi relies heavily on the Court’s 2022 decision in New York Rifle & Pistol Association. v. Bruen. In Bruen, the Court held that a New York law making it crime to possess a firearm without a license violates the Second Amendment right to bear arms. The Bruen opinion, written by Justice Thomas, employed a convoluted historical analysis to determine whether the New York law violated the Second Amendment. When a firearm regulation is challenged under the Second Amendment, the Court ruled, the government must show that the regulation is consistent with the Nation’s historical tradition of firearm regulation. That means that in order to justify a regulation, “the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

In Rahimi, Chief Justice Roberts elaborates on what is necessary to demonstrate that a regulation is consistent with “historical tradition.” According to Roberts, a regulation meets that test when it can be shown that the regulation is “relevantly similar” to laws that our history has permitted. Roberts concedes that the court need not find a “dead ringer” or a “historical twin” to the regulation in question, but it has to come close. In Rahimi, after an exhaustive (and exhausting) review of firearms laws dating from medieval times to the present, Roberts and six of his conservative colleagues found – but just barely – that preventing a cruelly violent domestic abuser from temporarily possessing firearms had a sufficient historical precedent.

Concurring opinions by conservative justices Gorsuch, Kavanaugh and Barrett, and a dissenting opinion by Justice Thomas, adopted the same approach with only slightly different wrinkles. Thomas, while adopting the same “public meaning” historical approach used by Roberts, disagreed that that the historical analogues were “relevantly similar” to the regulation in question, and therefore would have found it unconstitutional to disarm the violent domestic abuser.

There is a serious and logically fatal flaw with Roberts’s analysis, compounded by Thomas’s dissent.

Suppose, for instance, that Thomas is correct in his belief that there is no historical tradition of banning violent domestic abusers from possessing firearms. What would that mean? It would mean only that, for whatever reason, no legislative body had previously passed such a law. It would not mean that it couldn’t have, only that it hadn’t. Even Justice Barrett recognized in her concurring opinion that “imposing a test that demands overly specific analogues has serious problems:”

“To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us “a law trapped in amber.”  Ante, at 7.  And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a “use it or lose it” view of legislative authority.  Such assumptions are flawed, and originalism does not require them.

None of the other conservative justices signed on to Justice Barrett’s dissent, signaling that Justice Roberts’s “analogical reasoning” is likely to win the day and become precisely the “regulatory straightjacket” that Justice Barrett fears.

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At this point, one may ask where does this test requiring something “relevantly similar” in our “historical tradition” come from?

It comes from the Court itself, from the decisions in District of Columbia v. Heller, Bruen, and countless dissenting opinions written by the late Justice Antonin Scalia. In other words, it’s the test because the Court says it’s the test.

And how is this test applied? Again, however the Court says. For instance, in Heller, the landmark decision that recognized an individual right to possess a firearm for self-defense, the Court simply made up a test for determining what kinds of firearms were protected by the Second Amendment. Elevating to near gospel a mostly forgotten five-word phrase mined from the Court’s 1939 decision in United States v. Miller – “in common use at the time” – Justice Scalia ginned up an interpretation of what firearms were “in common use” at the time the Second Amendment was ratified that is, in a word, nuts. The kinds of firearms that actually were in common use at the time – such as single-fire, small arms weapons – aren’t relevant to Scalia’s analysis. What really counts according to Heller and its progeny isn’t the kinds of weapons in common use, only whether a lot of people have them.

Presumably, then, individuals are prohibited from possessing even worse weapons of mass destruction, not because of the danger they pose to society, but only because they aren’t “in common use.” If lots of people had them – if they were “in common use” – then they would presumably be okay. The good news is that Heller was decided just in the nick of time, before the public got its hands on too many machine guns. The bad news is that military assault rifles modified to be virtually identical to machine guns snuck into common usage just in time to escape regulation.

This is madness, not law, and it exists because the conservative majority of the Supreme Court has relentlessly fine-tuned its analytical framework to achieve its desired results.

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The competing judicial philosophy – the one that doesn’t turn Supreme Court justices into amateur historians eternally mining history to find examples that confirm their preferred outcome – is expressed in the concurring opinions of Justices Sotomayor and Jackson.

In her concurring opinion, Justice Sotomayor takes on the “myopic focus on history and tradition” that underlies the Heller and Bruen decisions. She points out that Bruen’s focus on history and tradition “fails to give full consideration to the real and present stakes of the problems facing our society today.” She proposes a framework that permits courts to consider not only history, but also “the State’s interest in preventing gun violence, the effectiveness of the contested law in achieving that interest, the degree to which the law burdens the Second Amendment right, and, if appropriate, any less restrictive alternatives.” This sort of scrutiny, Sotomayor points out, has been used regularly in cases involving constitutional provisions other than the Second Amendment.

Justice Jackson takes a more pragmatic approach, but it ends in the same place. She urges the Court to “pay attention” to the difficulty lower courts have had in attempting to apply the Bruen historical approach because “there is little method to Bruen’s madness.” In addition to the fact that the history-and-tradition test is unworkably burdensome, lower courts “have come to conflicting conclusions on virtually every consequential Second Amendment issue to come before them.” This was not the case, Jackson points out, with the pre-Bruen decisions based on the balancing of competing interests.

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Perhaps nothing in the Rahimi decision more alarmingly predicts the triumph of the “original public meaning” branch of originalism than Justice Kavanaugh’s concurring opinion.

Justice Kavanaugh isn’t just “concurring” with Justice Roberts’ decision in any traditional sense, he’s laying down a marker for future decisions. Making only passing references to the actual case being decided in Rahimi, Justice Kavanaugh remarkably turns all 23 pages of his concurrence into a philosophical treatise on the method employed by the Court in deciding similar cases. It is a full-throated endorsement of the flawed test of judging a regulation by determining whether it is “relevantly similar to laws that our tradition understood to permit,” and it plants a stake in the sand: no more balancing of interests or heightened scrutiny for him. While he is supposedly “not suggesting that the Court overrule cases where the Court has applied those heightened-scrutiny tests” (actually, isn’t he doing just that?), he is “challenging the notion that those tests are the ordinary approach to constitutional interpretation … [and] arguing against extending those tests to new areas, including the Second Amendment.”

All of this portends that we are in for years – and possibly decades, depending on the future composition of the Court – of the “trapped in amber” approach decried by Justice Barrett, not to mention three surviving non-conservative justices still on the Court.

So don’t be fooled by the fact that the Rahimi holding came out right, allowing the state to prohibit an adjudicated domestic abuser from possessing a gun.   More important is that the conservative majority on the Court used the Rahimi decision to lay down a marker portending trouble down the road.

When the Supreme Court conservatives again turn their faux-historical gaze on not only Second Amendment cases, but also other constitutional issues, they will cite the analytical framework described so lovingly in Rahimi to take away rights they don’t like, just as they took away a woman’s right to control her own body two years ago in the Dobbs decision.