How the Supreme Court’s Conservatives Can Solve Their Guns Dilemma Without Losing Face

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In a spirited oral argument at the Supreme Court last month, the radical version of originalism championed by Justice Clarence Thomas was exposed as both unworkable and inconsistent with the historical meaning of the Second Amendment. The federal public defender charged with the unenviable task of protecting the right of Zackey Rahimi, a violent domestic abuser, to possess a firearm was eviscerated by the justices. From across the court’s ideological spectrum, Rahimi’s lawyer faced a barrage of hostile questions and searching criticisms that left him sputtering, struggling to articulate a coherent defense of his client’s right to own a firearm despite his violent past behavior. The Rahimi case was fast-tracked by the United States solicitor general’s office because of a poorly reasoned and historically flawed decision by the rogue U.S. Court of Appeals for the 5^th Circuit, which asserted that the Founding generation would have balked at disarming domestic abusers. The 5^th Circuit’s originalists effectively weaponized their ignorance of the facts of Anglo-American legal history to arrive at this absurd result.

Based on the questions hurled at Rahimi’s lawyer at oral argument, it seems likely the Supreme Court will reverse the 5^th Circuit’s decision. What is less clear is how the high court will confront the underlying problems created by Thomas’ flawed framework in New York State Rifle and Pistol Association v. Bruen that led to the 5^th Circuit ruling in favor of Rahimi.

The court has a rare opportunity to fix the problem it created without losing face. A path forward to resolving these problems was sketched by Solicitor General Elizabeth Prelogar in response to a question by Justice Elena Kagan. Prelogar outlined a minimalist set of clarifications the court needs to make to Bruen. First, judges need to recognize that understanding the history of firearms regulation requires much more than simply compiling a spreadsheet of old laws, as one federal judge in California requested. In that case, a challenge to a state assault weapons ban, California’s attorney general dutifully complied with this request, providing a 56-page spreadsheet that included 191 laws, statutes, and regulations. Despite this long list of regulations, the judge in the case did not find an exact twin to California’s assault weapons ban, so he struck down the law. The judge in the case, ignorant of the relevant historical context, did not understand that in the Founding era, gun laws were governed by a different set of policy concerns than today’s laws. At the time of the Second Amendment, government sought to discourage Americans from purchasing the weapons they desired, and instead enacted laws forcing them to obtain the weapons the government believed essential to preserving a well-regulated militia. Today, in a nation awash in guns, government faces the opposite problem of the one that plagued the authors of the Second Amendment: discouraging Americans from purchasing and stockpiling weapons whose lethality would have astounded the Founding generation.

The other problem with the hyperliteralist approach to applying Bruen evidenced in both the California case and Rahimi is the failure to comprehend the role that common-law methods of keeping the peace played in the era of the Second Amendment. One of the primary means of regulating weapons in 1791, an era when there were no police forces, no administrative state, and most legal matters were handled locally by justices of the peace, was the use of a common-law tool: peace bonds. Modern bail bonds that require an individual to post a sum and forfeit it if they fail to appear in court are the direct lineal descendants of these legal instruments which have been supplanted by other legal tools but were once a common feature of American law. Although today most Americans are likely to encounter a justice of the peace in the context of civil marriage ceremonies, this office was once the most important agent of law enforcement. At the time of the Second Amendment, justices of the peace had broad powers to detain, search, disarm, and, if necessary, imprison those who carried deadly weapons in public contrary to common law. In the Founding era, traveling armed in public, apart from a list of recognized exceptions, violated the peace. Any justice of the peace could stop and question an individual traveling armed without proper cause, disarm them, and impose a peace bond. If the individual traveled armed again, without good cause, a higher bond would be imposed, and if the individual continued to violate the peace, they were disarmed and imprisoned.

Not every feature of common law survived the American Revolution, but the use of peace bonds persisted. Although the Founding generation was steeped in common law, today’s judges and lawyers are typically not taught much about this part of our legal tradition in most law schools.

Another issue identified by the solicitor general that has caused confusion in post-Bruen litigation was the dearth of modern-style gun laws from the era of the Second Amendment. Once again, an understanding of historical context is key to making sense of how the Founding generation legislated in response to the problems they experienced. Legislatures rarely pass laws in anticipation of problems that don’t exist, and recent historical scholarship has demonstrated conclusively that there was no serious interpersonal gun violence problem to solve in 1791. The nature of early American firearms meant that they were ill-suited for crimes of passion. Given this fact, looking for modern-style gun laws or analogs crafted to respond to rampant gun violence is pointless: There was no gun violence problem to remediate in 1791. Although domestic violence is not a new problem, the use of firearms in domestic violence is not a problem the Founders would have faced.

Gun violence—then and now—has always been tied to the proliferation of handguns. Modern-style gun control first emerged decades after the Second Amendment was adopted, a time when handguns became cheaper, more reliable, and more common. Once this transformation occurred, states began passing a variety of measures to deal with the unanticipated consequences of the proliferation of these weapons. Apart from a few outlier decisions in the slave-era South, courts routinely upheld these statutes as a legitimate exercise of state police power, the authority of the people acting through their legislatures to pass laws to promote public health and safety. The Supreme Court has never explained why it would borrow much of its modern Second Amendment jurisprudence from judges who owned enslaved people in the pre–Civil War South.

In contrast to modern America, where regulation is often cast as antithetical to liberty, the Founding era viewed regulations as the necessary foundation for ordered liberty. The absence of regulation led to anarchy, not freedom. Promoting public health and safety, allowing the people themselves to govern and legislate, to address the needs of their society, was—and remains—America’s real first freedom.

Finally, Prelogar pointed out that lower courts have been applying the Bruen historical test, which demands that government produce an analogous historical law to justify upholding a modern one, in a blatantly biased fashion. Originalist judges have read historical antecedents for gun rights broadly, but evidence about gun regulation has been read parsimoniously. Applying this asymmetrical approach has allowed courts to protect guns whose lethality and reliability would have astonished those in the Founding era but strike down modern regulations addressing the unprecedented problems created by these weapons. Bruen rejected judicial interest-balancing, the approach to evaluating gun laws in which the public’s right to safety was balanced against the individual right of self-defense. Jettisoning this method, the prevailing approach for most rights protected by the Constitution, aimed to reduce judicial discretion, eliminate confirmation bias, and prevent ideological judging. In fact, Bruen has done the opposite. It has given lower courts a license to manipulate the historical record in a shockingly partisan fashion.

Judges forced to play historian in the year since Bruen was decided have been forced to do something akin to playing a game of historical “Where’s Waldo?” Engaging in a judicial scavenger hunt among old laws without any attention to context is a recipe for confusion and anachronism. Rather than allow judges to use the tools and techniques they know best, the Thomas approach in Bruen forces judges to become amateur historians, with results that have been predictably amateurish.

It seems unlikely the court will overrule Bruen any time soon, but the Supreme Court needs to heed Prelogar’s sage advice and rein in lower courts. As Justice Breyer predicted in his Bruen dissent, the new “history, text, and tradition” advanced in Bruen requires judges to become historians. Few jurists have the knowledge or training to do the job they have been tasked with, and the results have been a disaster. At a very minimum, the Supreme Court needs to rescue Bruen from the chaos it has created in the lower courts.