It’s not every day that even the conservative Supreme Court seems ready to distance itself from its own ruling.
But the justices look poised to offer up a “just kidding” about its 2022 landmark decision, which created a new standard limiting the constitutionality of gun regulations. Whether the court saunters or sprints away from that decision, during arguments in United States v. Rahimi earlier this week, it signaled that it is likely to uphold a federal law barring those subject to domestic violence restraining orders from possessing guns.
Thomas aggressively espoused an originalist approach to constitutional interpretation.
Just last year, in New York State Rifle & Pistol Association v. Bruen, Justice Clarence Thomas led the court’s 6-3 conservative majority in striking down New York’s concealed carry law. In one sense, Bruen built on the court’s 2008 ruling in District of Columbia v. Heller, in which five conservative justices declared that the Second Amendment created a personal right to self-defense in one’s home. Bruen extended that right to carrying a weapon in public. But perhaps even more importantly, it created a new legal standard: Courts can only uphold gun regulations if they are consistent with our nation’s “history and tradition” or, as the Supreme Court put it elsewhere in its opinion, “consistent with this Nation’s historical tradition of firearm regulation.”
In other words, for any gun regulation reviewed this year, Thomas and his conservative colleagues want us to go back to 1791, to determine whether it fits within our nation’s “history and tradition.” According to the court, the meaning of the Constitution “is fixed according to the understandings of those who ratified it.” Well, sort of fixed: Thomas did acknowledge that we could jump forward almost 80 years, to 1868, and consider what the right to bear arms meant when the 14th Amendment was ratified and the Bill of Rights were extended to the states.
In creating this new test, Thomas aggressively espoused an originalist approach to constitutional interpretation. Supporters of this school of legal thought believe it forces judges to be neutral arbiters, not activists. But Thomas’ standard does no such thing. Instead, it forces lawmakers and lawyers to perform original historical research into the “history and tradition” of our country.
If this sounds like giving judges and lawmakers permission to cherry-pick historical examples to fit their end goal, you’re right. As historian Jack Rakove points out, the originalists’ view that the Second Amendment protected an individual right to bear arms for self-defense “would have flabbergasted Americans of the founding era.” When the Bill of Rights was being debated, he writes, “no one ever publicly proposed that the purpose of bearing arms was to protect a common-law right of self-defense, nor did anyone explain what constitutional purpose such a private right would protect.”
But even if we assume history is on Thomas’ side, whether it be 1791 or 1868, there are plenty of reasons to distance ourselves from “history and tradition.” It was, of course, not until 1868 that Black men were granted the full rights of citizenship in our country. It would be more than a half-century before women obtained the right to vote. And, more on this later, but men faced no legal repercussions for beating their wives until after 1868. Simply put, 1868 was a world away.
Don’t look for the court to write a majority opinion that explicitly retreats from its decision in Bruen.
Thomas and the gun lobby got what they wanted — lawmakers’ hands are increasingly tied and fewer gun regulations will be upheld. But Thomas’ “history and tradition” standard is impractical. Thomas required that for gun regulations to be constitutional, “the government [must] identify a well-established and representative historical analogue, not a historical twin.” However, he provided precious little guidance for what a “representative historical analogue” is, and the standard creates more questions than it answers. Given Thomas’ vague and amorphous standard, it was just a matter of time until the court reviewed another case that pushed it to confront the consequences of the Bruen decision.
Which brings us back to U.S. v. Rahimi. Zackey Rahimi likes firing his gun. A lot. Unfortunately for him, he did it in violation of federal law. Rahimi assaulted his girlfriend, the mother of his child, and threatened to shoot her if she told anyone about the assault. This led to a restraining order against him, which he proceeded to violate by threatening to shoot another woman, and opening fire in public five times over two months. Rahimi’s claim before the court is that the federal law preventing him from owning a gun violates his Second Amendment rights — a claim the conservative 5th Circuit Court of Appeals initially rejected, and only adopted after the Supreme Court’s decision in Bruen. If you’re looking for a narrow historic analogue from 1791 or 1868 for laws preventing those subject to domestic violence restraining orders from owning guns, you won’t find one. It wasn’t until 1871 that any state punished husbands who beat their wives, and it took until 1920 for every state to criminalize “wife beating.” Women were, it should not come as news to any of us, not full people under the law. Given that wife beating was legal in 1791 and 1868, there’s zero chance of finding a law that prevented those engaged in domestic violence from owning guns. If you’re sensing that perhaps the “history and tradition” standard has some flaws, you’re right where a majority of the court seemed to be after oral arguments this week. (Thomas and Justice Samuel Alito, though, still appear comfortable striking down the law.) But don’t look for the court to write a majority opinion that explicitly retreats from its decision in Bruen. Instead, the majority will likely say it is merely “clarifying” that standard, and hold that if a person is dangerous (here with respect to engaging in domestic violence), then there are enough historical analogues to uphold restrictions on that person’s gun ownership rights. As Justice Sonia Sotomayor noted in 2014, “All too often, the only difference between a battered woman and a dead woman is the presence of a gun.” Luckily, a majority of the court appears to acknowledge this basic fact.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
