Originalism Risks Tarnished Brand in High Court Gun Rights Case

Supporters of originalism could have a public relations problem if the US Supreme Court doesn’t uphold a federal law that disarms domestic abusers.

The court’s 6-3 conservative majority based its decision to expand gun rights in 2022 on the legal theory that the Constitution should be interpreted as it was understood at the time of the nation’s founding.

It would look unreasonable, some legal scholars say, if the court turns to originalism this term to strike down a federal law that prevents people subject to domestic violence restraining orders from owning a gun.

“The notion that an originalist understanding of the Constitution requires that somebody like Mr. Rahimi be given the right to carry a gun when he has directly threatened his intimate partner is crazy,” said David Cole, national legal director at the American Civil Liberties Union.

In United States v. Rahimi, which the justices will hear Tuesday, the government is appealing the US Court of Appeals for the Fifth Circuit’s ruling that said the law violates the Second Amendment.

The court added another gun case to its docket on Friday in agreeing to decide if bump stocks fall under the definition of a machine gun that the federal government can ban. Originalism isn’t likely to play a role in that case since it tests the scope of a statute not the Constitution.

The case marks the high court’s first test of its decision in New York Rifle & Pistol Association v. Bruen, which set a historical standard for analyzing the constitutionality of gun restrictions. In Bruen, the justices said courts should analyze the Second Amendment’s text and the nation’s history. That meant New York couldn’t limit who could carry a handgun in public.

“There’s a tendency to turn originalism into kind of a bogeyman and be like ‘oh this was originalism that did this,’” said Clark Neily, senior vice president for legal studies at the Cato Institute, which filed a brief supporting Rahimi.

No interpretive legal theory, including originalism, he said, clearly answers at what level of generality courts should look at history.

The Biden administration argues there’s plenty of history to pick from, including English law that allowed the government to disarm individuals who were “dangerous.” It detailed how a Texas court issued a restraining order against Zackey Rahimi after he assaulted his girlfriend and threatened to shoot her in 2019.

Rahimi counters there’s nothing in America’s history of gun regulations that remotely resembles the federal law disarming domestic abusers and the founders never intended to let Congress decide who can keep and bear arms.

“If you set this up as a case against which to judge originalism, then the question becomes what’s the alternative to originalism?” said Robert Cottrol, a George Washington University law professor who co-authored a book about the legal history of the Second Amendment.

“Should the court simply make decisions based on what is good policy and, if it does that, then the question might arise why should the court make those kinds of decisions as opposed to legislatures?” Cottrol said.

Cottrol acknowledged the optics of doing away with a law that disarms domestic abusers, but said “everything can’t be about public relations and bad looks.”

“Constitutions are inconvenient things,” he said. “Sometimes they say ‘Yes, you may have a good policy goal and you can’t achieve it because of constitutional limitations. I don’t know if this is such a case or not.”

Changed Circumstances

With multiple forms of originalism, some legal scholars argue the Bruen framework still allows the court to uphold the law.

The court recognized there are grounds for Congress to adopt gun restrictions that might depart from the founding when there are changed circumstances, and that’s happened here, said Reva Siegel, a constitutional law professor at Yale who signed a brief by Second Amendment law scholars urging the court to uphold the law.

At the founding, women weren’t treated equally under the law and guns weren’t used in crimes of passion, she said.

“A key problem with certain forms of originalism that tie the Constitution’s meaning to particular practices of the past is that they entrench laws adopted at a time when a majority of Americans weren’t entitled to participate in lawmaking,” Siegel said.

Writing for the majority in Bruen, Justice Clarence Thomas said “Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.”

The historical inquiry that courts must conduct to assess present-day gun laws, he said, will often involve reasoning by analogy, though governments are only required to identify “a well-established and representative historical analogue, not a historical twin.”

What historical laws are considered analogous isn’t clear, Cole said.

If the courts want to uphold this law, “they will create more discretion by raising the level of generality by which they read the historical analogues and that will mean more gun laws going forward will be upheld,” he said. “But there are various ways they could do that.”

The government is urging the court to issue a broad ruling that says there’s no individual right to bear arms unless a person is a responsible, law-abiding citizen.

The ACLU has proposed the court take a narrower approach and say there are historical analogues of denying guns to people who have been individually adjudicated to be dangerous.

“Even that narrower theory will require them to sort of soften the shackles of originalism,” Cole said.

The case is United States v. Rahimi, U.S., No. 22-915, unpublished.