The majority of our current Supreme Court justices worry that the Second Amendment does not get the respect it deserves. They claim modern gun control laws wrongly prioritize efforts to curb gun violence over the individual’s right to bear arms, impermissibly relegating that right to a “second-class” status. To ensure that legislatures and lower courts properly honor the Second Amendment, the high court last year announced a new test for the validity of laws regulating gun possession and carrying. In New York State Rifle & Pistol Association v. Bruen, the court declared that modern gun control laws must hew tightly to the Anglo-American tradition of firearms regulation as that tradition stood in and around 1791, the year the Second Amendment was ratified.
Invoking the litmus test laid down by Bruen, a panel of the 5th U.S. Circuit Court of Appeals recently invalidated a federal law aimed at keeping guns from those adjudicated to be domestically abusive to their intimate partners. According to the appellate judges in U.S. v. Rahimi, this law is too unlike any laws from the late 18th century to survive constitutional review.
These decisions and the reasoning that guides them are frightening and oppressive. They seem to force us to look down the wrong end of a temporal telescope so that we can see only the narrowest version of what the Framers might have demanded of us. The Bruen approach further assumes that had those same Framers had the ability to look ahead across time to our world, they could imagine only the most cramped future possible. But that is an interpretive choice, not an unassailable presumption. On closer examination, Rahimi itself ultimately reveals that judges can legitimately choose to see both our past and our present from a far more generous perspective, one the Framers themselves might well have approved.
Picking up a term that peppers Bruen, the Rahimi judges approached their job by asking whether this modern law, stripping adjudicated domestic abusers of their right to possess and carry weapons, would seem like an “outlier” to our ancestors. To fashion a reply, they undertook a survey. They diligently identified features of historical laws and features of the modern law. They itemized the features of the old laws missing from the current one and features of the new law absent from the old ones. From this inventory, the panel concluded that our ancestors would have deemed the current law an outlier.
In essence, this panel performed an observational experiment. They collected and classified information, organizing what they observed. Then they looked for patterns in the data points. Their taxonomy made features of the current gun control law look like wild outliers compared to features of historical laws. But another experimenter, operating with another, equally reasonable taxonomy, might have classified the laws’ features without yielding any outliers whatsoever.
If, then, we are substituting judgment and reasoning for raw historical imitation, we should consider more broadly how our forebears from 1791 would have approached the question of whether a law regulating gun possession is an outlier compared to the laws of their time. We might even find ourselves able to imagine ratifiers of the Second Amendment, gazing forward through the correct end of the telescope, envisioning a future in which laws precluding alleged domestic abusers from possessing firearms actually fit squarely within their vision of the amendment.
Let’s play it out. Hypothesize that one of our ancestors is presented with the contested domestic abuser provision of the federal Gun Control Act. To parse the law’s features, she might first want to understand what an “intimate partner” is; why in our day we have legal procedures by which a person threatened by and afraid of an intimate partner might obtain a court order restraining that partner from contacting or coming near them. She might want to know how easily obtainable guns really are in America today; how much and what kinds of gun violence are perpetuated mostly by men. Our hypothetical ancestor might also find it useful to know about the decadeslong drive by the gun industry and gun enthusiast organizations to ensure that state and federal governments would protect gun manufacturers from the reach of ordinary tort law, and how these organizations marshaled resources to persuade courts to reinterpret the Second Amendment as creating an individual right to own and use guns for personal self-defense.
Bearing all this in mind, our ancestor from 1791 might well conclude that a legal system crafted to protect life and liberty should readily encompass the value of protecting people from being terrorized by gun-possessors with a propensity to physically harm others. With knowledge of a 2023 in which mass shootings occur almost daily—often carried out by those with a history of terrorizing intimate domestic partners with guns—the hypothetical Framer-ancestor might be both baffled and horrified at the prospect of “freedom” in future generations meaning that government could not stop the massacre of small children in schools because it turned out that the Constitution they drafted forbade virtually any regulation of guns.
Of course, no counterfactual or hypothetical reconstruction of how people from the past might have approached or performed an intellectual task can predict what they certainly would have done. We do not have a way to run that thought experiment as an actual one. But we do have good reason to think that the founders of the United States—the ancestors whose reactions to our gun laws are of particular importance to today’s courts and legislators—would have reasoned more like the imagined broad-thinking forebear than the circumscribed Rahimi judges.
After all, we know quite a lot about how the founders approached historical analogical reasoning. They used it to argue that only a legislature to which colonists sent elected representatives could rightfully enact tax laws applicable to the colonies. To make this case, the founders analogized colonists to the English men who had a right, according to the British Constitution, to elect their representatives to the legislature that imposed taxes. Not everybody bought the comparison. The British tradition of parliamentary representation excluded all manner of people from voting for those who enacted the taxes they paid. Many people in both America and the United Kingdom found the idea of elected representation for colonists utterly anomalous, as much an outlier as elected representation for paupers or for women.
The founders operated with another taxonomy. They argued their claim on the basis of profoundly meaningful similarities between (some) colonists and (some) English men: that both were born free, with inalienable rights to the pursuit of life, liberty, and happiness; that for both, the purpose of government was to secure these rights; that for both, any government that consistently undermined these rights was illegitimate. These judgments of similarity propelled these founders to fight a war, establish new states, and then join these states together in a creative and innovative new form of government. Right from the founding, then, analogical reasoning was bold and aspirational as frequently as it was crabbed and limiting.
The founders certainly had their intellectual and moral failings. They accepted and engaged in some horribly unjust and inhumane practices. But whatever else they were, the founders were not lacking in imagination or the power of analogous reasoning; nor did they seek to forever lash their descendants to the most cramped reading of democracy they could conjure. They thought creatively and capaciously, particularly about how history and tradition should be used to reason about justice, well-being, law, and government. They were looking out through a telescope to a broader and more complex future. This one vital fact seems to slip away when jurists make grandiose claims about original public meaning and the singular utility of dictionaries to forge justice.
The issue raised by the Bruen test or the Rahimi panel’s approach is not ultimately even about originalism versus some other approach to constitutional interpretation. Nor is it a matter of whether or not history and tradition rightly bear on adjudication, legislation, and legal thought. Of course they do. They always have and always will. The real issue raised by this new crabbed system of historical reasoning is the intellectual stance, temperament, and habits that lawyers, judges, and legislators should bring to the task of historical, analogical reasoning. To resolve it, we could do worse than look to the founders, who could certainly cherry-pick historical analogies with the best of them, but also understood the need to think broadly about law, freedom, and democracy.
