In the late 1960s, when conservatives felt that the Warren court was tilting too far to the left, magicking up in their opinions a Constitution that did not exist, Robert Bork, the patriarch of originalism, took a revelatory position: The Constitution should be interpreted (and only interpreted) in the ways intended by the people who wrote it. This was necessary, he made clear, so that judges could not just impose their own views of what the Constitution was supposed to mean.
Bork’s idea was deceptively simple and deeply appealing to those of a conservative bent. Constitutions were precise legal documents meant to endure into eternity unless and until amended. Judges should and must be kept from imposing their own views on the document. And if you were a conservative, what understanding of the Constitution could be presumptively better than the one dating all the way back to the late 18th century, when the Constitution and Bill of Rights were ratified?
As with so many things in life, the deceptively simple is often just that: deceptive. If this past Supreme Court term showed us anything, it is that originalism is a fig leaf, covering up the parts of right-wing jurisprudence most movement conservatives never wanted us to see. Which is to say that whatever else originalism is, it doesn’t limit judicial discretion an iota. Indeed, beyond the fact that it is not a theory of judicial humility, it turns out it may not have much content at all.
If any case made this clear, it was the fractured conservative majority in United States v. Rahimi, in which eight justices agreed that it does not violate the Constitution to keep guns out of the hands of those who are subjects of adjudicated domestic-violence restraining orders. But they seem to have agreed on little else. In particular, the six conservative justices gave us at least four different views of how originalism is even supposed to work. Some half-century into the great originalist project, which was intended to tether judges to a fixed original meaning and constrain their discretion, those justices cannot even agree on what originalism is.
Zackey Rahimi was indicted for violating a domestic-violence restraining order by keeping a gun, which he fired at pretty much anyone who pissed him off, even slightly. Picture a non-cartoonish Yosemite Sam. Fighting those charges, he argued he had a Second Amendment right to his pistol packing. Just three years ago, this claim would have been inconceivable, but in 2022, in New York State Rifle and Pistol Association v. Bruen, the six justices in the conservative supermajority decided that there was a constitutional right to carry a gun in public almost anyplace one wanted.
Bruen didn’t just dramatically alter the entire American gun-toting landscape; it also became the paradigm for a whole new way of interpreting the Constitution: the supposed big triumph for conservatives of their belief that originalism is the one true interpretive methodology. In the olden days (say, up till about 2015), the justices had used something called means-ends analysis to resolve most claims about individual rights. It worked like this: The world is divided into regular liberty and fundamental rights—things like free speech, the right to a jury trial, and, yes, apparently also carrying weapons to the Stop & Shop. If the government’s regulation infringed on a fundamental right, it bore the burden of showing two things: that the end—the reason for doing it—was “compelling,” i.e., something really important. And that the means—the way the law operated—actually accomplished that end. If the end was not important or the law didn’t accomplish the end, the government’s action was unconstitutional. Pretty simple and logical, right? This whole means-ends test was a cornerstone to doing constitutional law.
In Bruen, writing for an ostensible six-justice majority, Justice Clarence Thomas claimed to change all that. There would be no more of this messy means-ends analysis, which, as he understands it, ultimately encourages them to read the Constitution however they want or just bow down to legislatures. Hereinafter, we are going to do pure history—aka originalism. First, we must decide if something the government did affects a core constitutional right enshrined in the Constitution’s sparse and 230-year-old text. If so, we ask: Is this consistent with the sort of regulation that was contemplated when the Constitution was written? In other words, is the government just doing what we did back in the late 1700s, or is it doing some newfangled thing that burdens the people’s rights in new ways? If so, fuhgeddaboutit.
To do the Bruen test, judges were thus told to take the modern law and go searching for an “analogous” example from the founding era. Kind of like going to the paint store with a color swatch and looking around for something pretty similar. If the new regulation was cobalt blue and the regulation back then was sky blue, that would not cut it—the government was out of luck.
To do this historical paint-chart comparison, as Thomas painstakingly explained in Bruen, you must ask two different questions from “ends” and “means.” Instead, we must ask why did they pass the similar gun regulations in the 1700s? And how did those historical regulations operate back then? Only if the answers to these two questions matched up with historical practices was the modern action by the government constitutional.
It does not take a genius to recognize, of course, that the new “why-how” test is in fact just … a means-ends test with a historical color swatch. Why a law was passed is its end, and how it operates is the same as means. But in Rahimi, five conservative justices realized they actually hated that a strict application of this test would have let Zackey Rahimi keep his guns, and so their supposed new approach fell apart. What we learned in Rahimi is that the conservative justices don’t agree with one another on how to implement the new test, and that they definitely didn’t agree with what Thomas said about it for the seeming majority in Bruen. Which is why, by an 8–1 vote in Rahimi, the Supreme Court upheld taking a domestic abuser’s guns away, regardless of Bruen, leaving Thomas howling in dissent that this was all unfaithful to the one true historical tradition they supposedly had agreed on just three years earlier.
In Rahimi, Chief Justice John Roberts rushed to reassure the rest of us that despite what it seemed to say, Bruen was not meant to suggest that our law was “trapped in amber” as of the founding. “The Second Amendment permits more than just those regulations identical to ones that could be found in 1791,” he wrote for the majority. Instead of looking for a perfect match from the past, or even at least a pretty close one, as Bruen had suggested, we need only ask “whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” But principles, as we all know, are pretty broad and flexible things, and that is what they proved to be in Rahimi. And so Roberts’ opinion in Rahimi basically neutered the strict Bruen originalist test.
Let’s start with the “why” part of the Bruen test. What the chief justice said in Rahimi was that historically legislative bodies had restricted “gun use to mitigate demonstrated threats of physical violence.” That “from the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others.” And, for that reason, “when an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”
In other words, back then they regulated guns to keep guns out of the hands of dangerous people and to make sure weapons were not used to menace people or threaten physical violence, which makes regulations done for the same reason kosher in modern times. But isn’t that the reason for many firearm regulations today? In justifying most of today’s gun laws, that understanding of the why is not going to change much.
The “how” part of the Bruen test required that the way a person is disarmed line up with similar methods from the founding era. In Rahimi, the majority relied on ancient “surety” laws for which, if you thought I was a threat to you, you could go to court and the court would make me put up a cash bond to guarantee I behaved. And it also relied on affray laws, which prohibited “riding or going armed, with dangerous or unusual weapons, [to] terrify [] the good people of the land.” The problem with this reasoning, of course, is that there was nothing remotely “unusual” about the weapons Rahimi was shooting irresponsibly all over the place. And he couldn’t just post bond to get his guns back—he went to jail for having them at all. But the chief justice’s opinion in Rahimi said that that was close enough for government work.
It turns out that sky blue is close enough to cobalt blue for these justices.
Don’t take our word for it that the chief justice took the sting out of Bruen’s originalism in Rahimi: Thomas was absolutely scathing in his extremely lengthy solo dissent, stating, “Not a single historical regulation justifies the statute at issue.” He, at least, could clearly see that any blue is not every blue. He understood that the majority had changed his Bruen originalism test instead of applying it.
So, in the end, Roberts’ majority Rahimi opinion mutated Bruen into a pragmatic means-ends analysis. You may recall that analysis from the time before Bruen. But this is where the agreement about how to apply originalism to gun laws among the five non-Thomas conservatives ended. Justice Brett Kavanaugh wrote a long exegesis to explain the right way to use founding-era history and “tradition,” which apparently means looking at history long past the founding. Justice Amy Coney Barrett wrote to disagree vehemently with Kavanaugh that we can look past founding-era history but also adopted her own pragmatic view of how to read that history. And frankly, it’s not clear at all what Justice Neil Gorsuch was saying in his opinion, except to try to tell listeners that there was no real disagreement among them at all, even though the opposite was obviously true.
Now, to be clear, what the five conservative justices in the majority in Rahimi did was not crazy. Quite the contrary. Why should we, having had more than 200 years to learn how to do things better, be stuck doing them exactly as they were done in the late 18th century? The Rahimi court’s reasoning made sense, even if its treatment of originalism was a muddle.
Just don’t go telling us anymore that there is some newfangled “old” way of interpreting the Constitution that will keep judges in their proper place. As with much of what the conservative justices did this term, they are making it up as they go along, in just the ways they want. And sure, they are calling it originalism, but even Clarence Thomas knows that’s a lie.
Discover more from CaveNews Times
Subscribe to get the latest posts sent to your email.