Until very recently, few people doubted the government’s authority to disarm domestic abusers. That changed two summers ago, when the Supreme Court announced in New York State Rifle & Pistol Association v. Bruen that only gun laws “consistent with the Nation’s historical tradition of firearm regulation” pass muster under the Second Amendment. By requiring gun laws and regulations to adhere to what the Court called the Constitution’s “original meaning,” the ruling immediately created chaos in lower courts, destabilizing the legal foundations of many gun control statutes. Among them was Section 922(g)(8), a federal law from 1994 that prevents people under domestic violence restraining orders from possessing guns.
Earlier this month the Court heard oral argument in United States v. Rahimi, a case that will decide whether Section 922(g)(8) violates the Second Amendment. The Court’s conservative supermajority seemed inclined to uphold the law but struggled to reconcile this outcome with originalism, the theory of constitutional interpretation it has nurtured and championed. At the basis of the Bruen decision was an idea central to originalism as the modern right has defined it—that constitutional meaning “is fixed,” as the majority opinion put it, “according to the understandings of those who ratified it.” Rahimi asks the Court to square that idea with common sense and modern needs.
If oral argument is any indication, that will be a tall order. The conservative justices offered no intellectually defensible way to uphold Section 922(g)(8) while staying faithful to the originalist conceit. But nor did they show any desire to revisit Bruen. Most seemed to coalesce around a one-off workaround to preserve the precedent while upholding the federal law in question. That decision would be good news for women and avoid further degradation of the Court’s institutional reputation. But it would neither end lower court confusion over Bruen nor resolve the earlier opinion’s fundamental problem: originalism does not, and cannot, provide an analytically rigorous standard that consistently produces principled results acceptable to contemporary society.
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Lawyers have an old saying: bad facts make bad law. Faced with extreme events, convoluted issues, or unsympathetic defendants, judges often make legal rules that don’t translate well to other cases. By all accounts, Rahimi has bad facts. In 2019 a Texas man named Zackey Rahimi violently assaulted his ex-girlfriend in a parking lot and shot at a witness. The ex-girlfriend, whom Rahimi threatened to kill if she told anyone about the attack, got a protective order that barred him from possessing guns.
Rahimi ignored it. He kept his guns and continued to fire them in public across at least six different incidents. Eventually the police searched his home, where they found guns and a copy of the protective order. He was ultimately convicted of violating Section 922(g)(8). Arguing that the law contravened the Second Amendment, Rahimi challenged his conviction, but the Fifth Circuit, an archconservative federal appellate court that covers Texas, upheld it.
That is where the story would have ended if not for Donald Trump’s overhaul of the federal courts, which he stacked with originalist ideologues. This past March, less than a year after the Supreme Court decided Bruen, a Fifth Circuit panel consisting of two Trump appointees and one Reagan appointee reversed their earlier decision, applying Bruen to strike down Section 922(g)(8). The Biden administration petitioned for review of that decision, and oral argument followed.
Rahimi flipped the usual relationship between bad facts and bad law: bad law forced the Court to take a case with bad facts. Lower court judges, including Republican appointees, have complained bitterly about Bruen’s amorphous framework, which forces them to cosplay as historians without the help of real ones. Legal scholars have puzzled over the ruling’s slapdash reasoning and confused conceptual foundations; among them are some conservative legal thinkers who worry that Bruen tarnishes the public perception of originalism. Ordinary Americans have watched in horror as judges apply the decision to uproot established, popular gun control laws like Section 922(g)(8). As Justice Elena Kagan remarked during the oral argument in Rahimi, “There seems to be a fair bit of division and a fair bit of confusion about what Bruen means and what Bruen requires in the lower courts.”
The Court’s conservative justices didn’t delve into that division and confusion. They also largely ignored the alarming details of Rahimi’s shooting spree. They did, however, talk about originalism, grasping for a face-saving way to preserve Bruen. One of their lines of questioning involved what “level of generality” courts should use in evaluating whether a modern gun law has a “a well-established and representative historical analogue,” as Justice Clarence Thomas put it in his majority opinion in Bruen. Because there is no eighteenth-century regulatory antecedent for disarming domestic abusers, a narrow historical scope would require the Court to strike down Section 922(g)(8). Interpreting history at a high level of generality could permit them to uphold it by defining what qualifies as an analogue more expansively.
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Solicitor General Elizabeth Prelogar advocated the Court to embrace a high level of generality. Here and elsewhere during oral argument, Prelogar made a savvy calculation to work within Bruen’s scaffolding, given the Court’s hard-right composition. “I think,” she told the Court, “that you have to come up a level of generality and use history and tradition to help identify and discern the enduring constitutional principles that define and delimit the scope of the Second Amendment right.” She proposed applying this level of generality to understand both the protections of the Second Amendment and the limitations built into it. Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett indicated they might get on board. Justice Barrett, for example, brought up the “surety laws and the affray laws” of the founding era to suggest that “the legislature can make judgments to disarm people consistently with the Second Amendment based on dangerousness.”
But using “history and tradition” to apprehend “enduring constitutional principles” would not be originalism, at least not on the terms conservative theorists have adopted: it would mean no longer treating the framers’ “understandings” as the definitive source of constitutional meaning. It accepts that constitutional understandings depend, at least in part, on ongoing processes of explication that make up the historical tradition and span generations. By allowing for the meaning of the Second Amendment and the laws it permits and bars to change over time, this approach turns the founding era into a crucial starting point for a dialogue rather than a conclusive straitjacket on constitutional meaning. Prelogar’s emphasis on identifying enduring constitutional principles aligns more with liberal theories of constitutional interpretation than it does with Justice Antonin Scalia’s.
The Court’s liberals hinted as much, as did its most conservative justices. Justice Thomas and Justice Samuel Alito pushed back on Prelogar’s argument; both will likely vote to invalidate Section 922(g)(8) after applying Bruen. (Alito wrote a caustic concurrence to Bruen criticizing the liberal dissenters for mentioning gun violence.) Justice Ketanji Brown Jackson, meanwhile, questioned whether “history and tradition” was really the driving force of a constitutional inquiry at the level of abstraction Prelogar put forward. “What’s the point of going to the founding era?” she asked Prelogar. “If we’re still applying modern sensibilities, I don’t really understand the historical framing.” She was gesturing toward the fact that interpreting history and tradition at a high level of generality creates a sort of Potemkin originalism. It gives the appearance of applying “historical framing,” even as the “modern sensibilities” originalism claims to reject—in this case the imperative to uphold Section 922(g)(8) despite its lack of clear historical regulatory analogues—are doing the real work.
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Efforts to map modern notions of “dangerousness” and other concepts onto 1791 fared poorly. Matthew Wright, Rahimi’s lawyer, told the justices they could only look to sources from the founding era and “immediately” after it, but he could not explain how to bridge the vast gulf between that era—when women and racial minorities were not equal citizens in law or society, domestic violence was tolerated, and the guns people carried were muskets rather than AR-15s—and our own.
A related problem confronts attempts to locate constitutional meaning in distant history. Many practices in America’s history and traditions are repugnant. When judges focus their constitutional inquiry on sources from the era in which the relevant amendment was written, they need to either embrace the bigotry of the past or cherry-pick cases that suit the present. The former approach is untenable morally, the latter methodologically.
History, for example, shows that founding-era governments disarmed enslaved people and Native Americans and that Redeemer-era governments disarmed Black citizens. For different reasons, both Prelogar and Wright said that those histories weren’t relevant. Prelogar claimed that these laws reflected an obsolete conception of the “political community.” Yet some of the laws she cited in the government’s briefs were similarly predicated on an outdated understanding of the “political community.”
Wright’s reasoning was worse still. He said that “awful” and “terrible” laws should be excluded from the history-and-tradition inquiry, and that “we should not give credence to a suggestion by a legislator in 1870 in the South.” But American history is replete with “awful” laws, as well as laws that are not neatly “awful” or “good.” If the history-and-tradition test cannot consider history and traditions in their full complexity, it won’t be able to look at much. And if we should not give credence to the views of racist Southern legislators from 1870, it’s unclear why we should give credence to the views of equally virulent framers from 1791.
Bruen’s history-and-tradition test is supposed to curb ad hoc judicial discretion, but it has the effect of supercharging it. Judges embrace a high level of generality to uphold laws they like, then switch to a narrower construction of generality to strike down laws they don’t. They deem some history to be the bedrock of constitutional meaning and other history to be entirely irrelevant, based on their policy preferences rather than principled standards. “I’m a little troubled,” Justice Jackson told Wright, “by having a history-and-traditions-test that also requires some sort of culling of the history so that only certain people’s history counts.”
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Early in the argument, after Prelogar asserted that “history and tradition” supports disarming people “who are not law-abiding, responsible citizens,” Chief Justice Roberts pressed her on the concept of responsibility. “It seems to me that the problem with responsibility is that it’s extremely broad, and what seems irresponsible to some people might seem like, well, that’s not a big deal to others,” he observed. “So what is the model?”
The model comes from the modern Court’s jurisprudence. Prelogar did not come up with the “law-abiding, responsible citizen” formulation; Justice Scalia did. In his originalist 2008 opinion in District of Columbia v. Heller, Scalia declared that the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Prelogar was merely parroting back Scalia’s language in Heller, an opinion Roberts joined without objection or qualification.
Heller mainstreamed a once-fringe reading of the Second Amendment. It was the first time the Court recognized the amendment as protecting an individual’s right to bear arms and thereby limiting the polity’s right to regulate them. It also left questions about the amendment’s scope unanswered. Scalia did not demarcate the full boundaries of the new right he had unearthed, especially how far it extended outside “hearth and home.” And while Heller claimed to be applying originalism, it only did so halfheartedly. Scalia, for example, declared that “nothing” in Heller “should be taken to cast doubt on longstanding” gun control laws, including bans on gun possession by felons and the mentally ill and the carrying of guns in sensitive places like schools.
Scalia presented no explanation—let alone an originalist justification—for these statements, which responded to present-day needs. While professing to apply originalism based on the original public meaning of the Second Amendment, Scalia effectively licensed other ways of understanding public safety regulation. (His inconsistencies may have been strategic; Scalia had to cobble together a majority, relying on the right-leaning but idiosyncratic swing justice Anthony Kennedy to get five votes. They may also have been philosophical; Scalia famously described himself as an “originalist” but “not a nut,” in comparison to Justice Thomas.) Bruen, conversely, took originalism seriously. Thomas applied the rigid ideas that Scalia espoused but periodically shied away from implementing.
At first glance Chief Justice Roberts’s questions about responsibility seemed strange. He is presumably familiar with the language of opinions he’s joined (in one of the Court’s highest-profile cases, no less). But his remarks highlighted the extent to which Heller failed to resolve originalism’s thorniest practical and explicative questions, which continue to haunt the Court. Like Heller’s rhetoric about carrying firearms in sensitive places, phrases like “law-abiding, responsible citizens” are clearly meant to reconcile originalism with contemporary realities—by, in this case, restricting gun ownership to people now deemed “responsible.” But they lack grounding in the historical sources that purportedly drive originalist analysis.
When judges take such language at face value, as the chief justice seemed to do at oral argument, they get entangled in conceptual confusion. “Do you go back to what was irresponsible at the common law or take a poll and see if people think it’s irresponsible to get into a fistfight at a sports event where tempers were running high, or what?” Roberts asked Prelogar. In Heller originalists created a question to which they didn’t offer an answer. Fifteen years later, they still don’t have one.
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At first glance, originalism appears to live in the past. By transforming the laws of the late eighteenth century into the linchpin of constitutional meaning, it seems to dwell on what Isaiah Berlin, writing in these pages, called the “obsolete relic[s] of a superseded civilization.” But originalism is acutely focused on today’s civilization, seeking to reverse the liberal tendencies of our age and stymie the development of future ones. In the past two centuries, Americans have developed new conceptions of the social world: of problems like domestic violence, of the status and rights of women, of the obligations of government. Originalism elevates one form of history to erase another: the history of progress toward a more decent society.
Some of these rollbacks are concrete. Originalist judges have eroded and invalidated statutes and precedents that protect specific rights, from abortion to voting. Some are less tangible, with originalist judges objecting to conceptions of equal constitutional citizenship that were forged in modern struggles. The pretense of applying the inexorable commands of the framers gives cover. Justice Thomas, the Court’s leading originalist, believes judges should get rid of the New Deal and let states execute juveniles, beat prisoners, and criminalize gay sex and contraception. He never takes responsibility for these antediluvian views, deflecting to the framers and their time.
Nowhere during oral arguments was originalism’s revanchism on fuller display than in the erasure of women from the proceeding. Congress passed Section 922(g)(8) to protect women from the lethal violence of domestic abusers. Seventy women on average are shot and killed by abusive partners every month. Even when guns don’t kill women, they coerce and intimidate them. “The primary harm abusive men inflict,” the sociologist Evan Stark has written, “is political, not physical, and reflects the deprivation of rights and resources that are critical to personhood and citizenship.”
And yet women were barely mentioned at the Court. Prelogar began her opening statement by noting that “guns and domestic abuse are a deadly combination” for women, then quickly pivoted to her argument that “the Fifth Circuit’s approach departs from the Second Amendment’s original meaning.” The questions that followed from the Court’s conservatives related to originalism and their own efforts to make it work. Dead men like St. George Tucker and William Rawle featured more prominently than the women alive today because of Section 922(g)(8).
This outcome was a predictable result of Scalia’s originalism, which wrote women out of the Constitution. When asked if the Fourteenth Amendment’s Equal Protection Clause protected women from gender-based discrimination, a view that has been binding law for decades, Scalia responded with an emphatic no. “Nobody ever voted for that,” he said in 2011. In 1996 he was the sole dissenter in United States v. Virginia, an opinion that struck down the Virginia Military Institute’s male-only admission policy. (Justice Thomas, whose son attended the school, recused himself.) Extolling the institute’s “old-fashioned” code of “manly honor,” Scalia wrote that “the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not revise them.”
His “our” did not refer to our contemporary society but rather to that of the framers, in which women lacked liberty, status, participation in the polity, and—as two of the Court’s liberal justices noted during oral argument in Rahimi—protection against domestic violence. It isn’t obvious “how the Bruen test works,” Justice Jackson observed, when “there is at least some evidence that domestic violence was not considered to be…subject to the kinds of regulation [in the founding era] that it is today.” Later in the argument, Justice Kagan told Wright that “two hundred some years ago, the problem of domestic violence was conceived very differently.”
People had a different understanding of the harm. People had a different understanding of the right of government to try to prevent the harm. People had different understandings with respect to pretty much every aspect of the problem. So, if you’re looking for a ban on domestic violence, it’s not going to be there.
In United States v. Virginia, Scalia was out of sync with his colleague’s understanding of women’s aspirations, dignity, and status. Today the Court is out of sync with the public’s understanding of the same things. Voters disapprove of Dobbs v. Jackson Women’s Health Organization—the originalist opinion that overturned Roe v. Wade sixteen months ago—by a nearly 2-to-1 margin, and fury at the decision continues to reshape American politics. The same day the Court heard oral arguments in Rahimi, voters in Ohio passed a ballot initiative approving a state-level constitutional amendment that protects abortion rights. Eighteen counties that voted for Trump in 2020 approved the amendment, many by double digits. In an exit poll, a decisive majority of Ohio voters said they were either “angry” or “dissatisfied” with the Court for overturning Roe.
Most Americans have reached an understanding of what it means for women to be equal members of our polity, and it includes reproductive autonomy. The Court’s conservative justices have a different one, aligned with the patriarchal values of the ancient past. The same can be said of its gun rulings. Guns entrench existing hierarchies, suppress forms of protest and agitation that drive change, and roll back progress toward giving all people equal station under the law. They arm the socially dominant with a weapon capable of inflicting corporeal suffering and denying equal citizenship. A clear majority of the American public wants this weapon restricted. According to a recent Fox News poll, 61 percent of voters support banning assault rifles and semiautomatic weapons, and 87 percent support requiring criminal background checks for gun buyers.
But rather than mitigating the harm that guns create, originalism has exacerbated it. Until Bruen is overturned, judges will apply it to invalidate life-saving gun control laws; a Rahimi carve-out for disarming domestic abusers won’t fix its central flaw. “Let’s say I’m a legislator today in Maine,” Justice Jackson said in a colloquy with Prelogar, referring to the recent mass shootings in Lewiston that left eighteen dead and thirteen wounded, made possible by guns unimaginable to those who drafted the Second Amendment.
I’m very concerned about what has happened in that community, and my people, the constituents, are asking me to do something. Do you read Bruen as step one being go to the archives and try to determine whether or not there’s some historical analogue for the kinds of legislation that I’m considering?
Prelogar said no. Originalism, applied honestly, says yes.
