The Failure of Originalism

The Supreme Court’s gun-rights decision last week came to the right result, but for the wrong reasons. On June 21, the Court ruled that the historical record supported a federal law barring those under restraining orders in domestic-violence cases from possessing guns. The decision, United States v. Rahimi, was 8–1, with Justice Clarence Thomas the lone dissenter. What the Court didn’t say, but should have, is that the federal law is constitutional because the government has a compelling interest—a legal standard that allows the government to abridge certain fundamental rights—in saving the lives of victims of domestic violence.

Instead, the Court justified its result under an “originalist” approach to the Second Amendment. Originalism is the view that the meaning of a constitutional provision is fixed when it is adopted and can be changed only by constitutional amendment. Many of the separate opinions in the case—including by Justices Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett (all in concurrences), and Thomas (in a dissent)—focused on how to correctly apply originalism. In doing so, they revealed the fatal flaws of originalism as a way of interpreting the Constitution: If judges are bound by the understandings of 1791, when the Bill of Rights was ratified, they’ll come to absurd conclusions; if they can look to history for merely rough approximations, then they can justify whatever result they want.

[Erwin Chemerinsky: Even the founders didn’t believe in originalism]

The Court’s difficulties in applying the Second Amendment in Rahimi stem from its decision two years ago in New York State Rifle & Pistol Association v. Bruen. In that case, the Court declared unconstitutional a New York law that had been on the books for more than a century, which prohibited having a gun in public without a permit and required a person to show cause, a safety need, for having such a permit. Justice Thomas wrote the majority opinion and said that a gun regulation would be allowed only if an analogous law existed at the time of the Second Amendment’s writing. He wrote, “To justify its 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. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

The government can infringe a fundamental right, such as freedom of speech, or even discriminate based on race if it has a compelling interest and no other way to achieve it. But for the Second Amendment, in Bruen, the Court took a purely originalist position and said that gun regulations are allowed only if they are supported by historical tradition in a very narrow sense—thus providing more protection for firearm rights than for any others in the Constitution.

United States v. Rahimi makes it glaringly obvious that this position leaves the government powerless to enact commonsense gun laws. As described in the Court’s summary of the case, in 2019, Zackey Rahimi seriously abused his girlfriend. Subsequently, a Texas court issued a restraining order against Rahimi for a two-year period that prevented him from threatening, harassing, or approaching his former girlfriend or her family. The order also prohibited Rahimi from having a firearm. Doing so would be a federal felony because a federal statute prohibits the possession of firearms by a person subject to a restraining order in a domestic-violence case.

Rahimi was later the suspect in a number of crimes where a firearm was used. The police obtained a search warrant and, on searching Rahimi’s home, found two guns and ammunition. He was indicted for violating the federal statute forbidding those covered by a protective order in a domestic-violence case from having a gun. Rahimi eventually pleaded guilty but reserved his right to appeal, and was sentenced to 73 months in prison followed by three years of supervised release.

On appeal, in 2023, the United States Court of Appeals for the Fifth Circuit ruled in favor of Rahimi and declared the federal statute unconstitutional. The Fifth Circuit expressly applied Bruen and explained that there were no laws disarming domestic abusers in 1791, when the Second Amendment was adopted. The court said that there is “no tradition from 1791 or 1866—of prohibiting gun possession … for people … subject to civil protective orders.”

Try to imagine the legal landscape if the Court always insisted, as the Fifth Circuit did, that a constitutional provision must mean exactly what it meant when it was adopted. For example, if that were to be the standard, Brown v. Board of Education was wrongly decided because the same Congress that ratified the Fourteenth Amendment also segregated the District of Columbia public schools and clearly did not have in mind that the assurance of equal protection would outlaw segregation. But that is the logic that the Fifth Circuit deployed in striking down the federal law in Rahimi; no laws existed to prohibit those under restraining orders in domestic-violence cases from having guns in 1791, so none can exist today. That is why Justice Thomas dissented in Rahimi.

An alternative way of applying originalism is to look more generally at history in interpreting a constitutional provision—not limiting its meaning to the specific understandings of the time, but instead searching for any historical justification at all, no matter how thin. This was what the Supreme Court did in its review of the Fifth Circuit’s Rahimi decision. Chief Justice John Roberts, in his majority opinion, emphasized that the Court’s previous Second Amendment cases—notably Bruen—“were not meant to suggest a law trapped in amber.” Instead, he explained, courts considering the constitutionality of gun-rights restrictions must determine “whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.” The Court said that historical examples abound of dangerous people being kept from having guns, and thus the federal law at question in Rahimi is justified.

[David H. Gans: This court has revealed conservative originalism to be a hollow shell]

For many true-believing originalists, this approach disappoints because it does away with the constraint on judging that originalism seeks to promise. Theoretically, if judges are bound by the historical record, then they have less interpretive discretion—the law is what the law was. But when traditions at a more general level of abstraction can be considered, then almost any result can be justified, and originalism becomes indistinguishable from nonoriginalism.

Questions of abstraction aside, Rahimi shows that it is silly—not to mention dangerous—to limit constitutional law in the 21st century to the understandings of those in the late 18th century.

What really makes the federal statute in Rahimi constitutional under the Second Amendment is not that dangerous people could be denied guns in 1791, but that the law is essential to serve the compelling interest of protecting victims of domestic violence. Yet nowhere does the statute’s potential to save lives get mentioned in Chief Justice Roberts’s majority opinion. In his concurring opinion, Justice Kavanaugh says that “the Court interprets and applies the Constitution by examining text, pre-ratification and postratification history, and precedent.”

In another concurring opinion, Justice Ketanji Brown Jackson noted that the lower courts are “struggling” in their dealings with the Second Amendment and that their confusion is the Court’s fault. Rahimi does not end this confusion. Relying on historical precedent over compelling interest will doubtless prove messy for lower courts as they hear a variety of challenges to every type of gun regulation. The Court says that the historical inquiry is not limited to looking for an exact analogue of any given law in 1791. But how are lower courts to decide whether a particular example from history justifies a gun regulation today? Only scrapping the originalist approach to the Second Amendment and treating gun rights like all other constitutional rights can bring sense to the law.