SCOTUS Reckons With Second Amendment Mess Of Its Own Making

And by "reckons," we mean they LARPed as historians some more and then ruled based on vibes.

On Friday, the Supreme Court ruled in a case called United States v. Rahimi that the federal ban on domestic abusers possessing guns does not violate the Second Amendment. Just a week after the Court’s conservatives endorsed bump stocks as very cool and very legal, Chief Justice Roberts struggled to cobble together a coherent reason why this gun law is okay, actually. The contortion required a rhetorical journey back to the Viking Era, through Shakespearean England, and thence to colonial America. But as Justice Ketanji Brown Jackson noted in a pointed concurrence, it was remarkably thin on the past 200 years of American law. 

In fact, until a 2008 case called DC v. Heller in which Justice Antonin Scalia “discovered” an individual right to bear arms hidden in the Second Amendment, gun control laws were ubiquitous and uncontroversial. Since then, the Court’s conservative justices have blithely overturned centuries of gun regulations, by shouting “Founding Fathers!” at 200 decibels, while reaching through the mists of history to prove that it was ever thus. And so, lacking any judicial framework to evaluate the legality of gun laws, courts are forced to simply guess and hope that the result finds favor with at least five Supreme Court justices, who will then retcon a historical justification for their preferred outcome and call it a history lesson.

“Today’s effort to clear up “misunderstandings,” is a tacit admission that lower courts are struggling,” Justice Jackson wrote acidly in her concurrence. “In my view, the blame may lie with us, not with them.”

This Is Not A Well Regulated Militia

As recently as 1995, the notion that the Second Amendment would somehow protect an individual’s right to bear arms was relegated to the lunatic fringe of legal scholarship, the domain of a few oddball law professors who relished their quixotic role in the “political debate about the Second Amendment.” 

There was, however, no legal debate. The “widespread legal and judicial view” was that the Second Amendment prohibited Congress from disarming state militias, but when it came to individual firearm ownership and possession, Congress could regulate them at least as much as automobiles, and states were free to pass whatever gun control laws they saw fit as part of the local “police power.” 

Indeed, for the first two centuries of America’s existence, the Supreme Court never struck down a state or federal law restricting gun ownership. On the few occasions in which the Court weighed in on gun control legislation, such as the 1939 decision in United States v. Miller endorsing a federal ban on sawed-off shotguns, it consistently upheld gun control measures.

In Miller, the Court unambiguously articulated that the “history and tradition” of the Second Amendment was to establish state militias, comprised of “all males physically capable of acting in concert for the common defense,” armed with weapons “supplied by themselves and of the kind in common use at the time.”

The federal government banned sawed-off shotguns, machine guns, and assault rifles, while many states and municipalities went much further. In 1976, as one of the first acts after DC was granted “home rule,” the City Council passed the Firearms Control Regulations Act, which prohibited, among other things, private ownership of handguns within the District. Five years later, the city of Morton Grove, Illinois followed suit. 

A challenge to the Morton Grove law was rejected by the trial court and the Seventh Circuit, and couldn’t even garner four justices to grant certiorari. This is perhaps unsurprising since then-Chief Justice Warren Burger, a staunch conservative, described efforts to locate an individual right to bear arms within the Constitution as “one of the greatest pieces of fraud, I repeat the word fraud, on the American public.”

Scalia’s Fraud

The Second Amendment to the Constitution reads: “A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed.” 

When the National Rifle Association rebuilt its DC headquarters in 1965, the gun group conspicuously lopped off the first half in its signage, much to the derision of legal scholars and commentators, who noted that the NRA was the only lobbying group with “half an amendment emblazoned across the front of its building.”

But the NRA got the last laugh. 

In 2002, gun control opponents recruited a DC police officer named Dick Anthony Heller to challenge the District’s gun ban in a lawsuit financed by the founder of the Cato Institute. Heller asserted an individual right to keep a gun in his home for self-defense, and in 5-4 ruling in 2008, the Supreme Court agreed. Justice Scalia accomplished this feat by waving off the stuff about a “well-regulated militia” as a meaningless “prefatory clause,” and highlighting the “keep and bear arms” part as the “operative clause.” 

But still, he insisted that the Court was simply following the law as it had always been. Before Republicans packed the Court, conservative justices had to at least pretend to believe in stare decisis, and so Justice Scalia was adamant that his intellectual sleight of hand would not disturb existing precedent.

“Like most rights, the right secured by the Second Amendment is not unlimited,” he mumbled assuringly, adding that the ban on sawed-off shotguns under Miller would be preserved, because the Second Amendment only granted the individual a right to possess “the sorts of weapons … ‘in common use at the time’" of its passage in 1791:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

That’s … not a legal standard any lower court judge could possibly apply. 

And predictably, after SCOTUS tossed out two centuries of precedent while pretending that they’d done no such thing, there was general confusion about the legality of all gun laws. And so conservatives bided their time, while sounding a constant drumbeat of fear that the first Black president was plotting to confiscate guns from Real Americans™.

Thomas’s Fraud

By 2022, conservatives had consolidated their power on the Court. Justice Clarence Thomas was finally ready to “reiterate” the legal standard set out in Heller — i.e. he had the votes to retcon an explanation for his preferred outcome, which was to make it functionally impossible to enact gun control laws in a country with near-daily mass shootings.

In New York State Rifle & Pistol Association v. Bruen (known as Bruen), SCOTUS overturned the New York state law requiring a permit to concealed carry a handgun. Thomas concocted a test which was simultaneously subjective and far more restrictive than tests to evaluate infringements of other constitutional rights:

When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."

In other words, under Bruen, all gun control legislation is presumptively invalid, and can be rescued only if one can show that the law falls within the Nation’s “historical tradition of firearm regulation,” whatever that means.

And so in a nation where the overwhelming majority of us favor stricter gun regulation, we can’t enact legislation to keep ourselves safe unless the self-appointed chief historians at One First Street decide that it’s what the Founding Fathers would have wanted.

Roberts’s Fudge

None of this has increased the prestige of the Roberts Court, where the Chief Justice is already feeling the heat from near-daily revelations of corruption by Justices Thomas and Alito.

Enter Zackey Rahimi, a Texas man with a long history of both firing his gun in public and of abusing his girlfriend and her child. (The wiki on this one is wild!) In 2021, Rahimi was arrested and charged with violating 18 U.S.C. § 922(g)(8), which prohibits violent domestic abusers from possessing firearms. In 2023, after Bruen came down, the Fifth Circuit ruled that the law violated the Second Amendment and tossed Rahimi’s conviction.

That put the Court’s conservatives in a tight spot, since the clear implication of Bruen is that gun laws are only bad if they would have made Ben Franklin cry, and domestic violence wasn’t something understood in a nascent country where the ownership of other human beings was perfectly legal. But even Justice Alito agreed that they needed to uphold § 922, leaving Justice Thomas, for whom no gun laws pass muster, as the lone dissenter.

And so Chief Justice Roberts crossed himself (probably), rolled up his sleeves, and went looking for some “historical tradition” to save him having to come out in favor of arming domestic abusers. Naturally he began in eleventh-century Denmark:

By the 1700s and early 1800s, however, two distinct legal regimes had developed that specifically addressed firearms violence. The first were the surety laws.  A form of “preventive justice,” these laws derived from the ancient practice of frankpledges. … Reputedly dating to the time of Canute, the frankpledge system involved compelling adult men to organize themselves into ten-man “tithing[s].”  … The members of each tithing then “mutually pledge[d] for each other’s good behaviour.”  … Should any of the ten break the law, the remaining nine would be responsible for producing him in court, or else face punishment in his stead. … Eventually, the communal frankpledge system evolved into the individualized surety regime.  Under the surety laws, a magistrate could “oblig[e] those persons, [of] whom there is a probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance . . . that such offence . . . shall not happen[,] by finding pledges or securities.” … In other words, the law authorized magistrates to require individuals suspected of future misbehavior to post a bond. If an individual failed to post a bond, he would be jailed.

After an exegesis on the ten-man tithing frankenpledges of the dude who commanded the sea not to rise more than a thousand years ago, the Chief traveled to England for a visit with the 1328 Statute of Northampton, the British Militia Act of 1662, Sir John Knight’s Case of 1686, and then finally on to America, where in 1783 Massachusetts restricted (but did not ban!) “gun use by drunken New Year’s Eve revelers.”

Missing from this study of “historical tradition” of Vikings, medieval knights, and rowdy Bostonians is any discussion of or citation to any US Supreme Court decision from 1791 to 2007. 

As Justice Jackson noted in her concurrence, this is not how we do law in America.

Or, it’s not supposed to be how we do law in America. But after the hash conservatives made of gun regulation in Heller and Bruen, “courts evaluating a Second Amendment challenge must [now] consider history to the exclusion of all else.”

The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen’s madness. It isn’t just that Bruen’s history-and-tradition test is burdensome (though that is no small thing to courts with heavier caseloads and fewer resources than we have). The more worrisome concern is that lower courts appear to be diverging in both approach and outcome as they struggle to conduct the inquiry Bruen requires of them. Scholars report that lower courts applying Bruen’s approach have been unable to produce “consistent, principled results,” … and, in fact, they “have come to conflicting conclusions on virtually every consequential Second Amendment issue to come before them.”

Ultimately, if the law is just whatever cherry-picked historical examples most appeal to the Supreme Court’s conservative wing, the rule of law itself is meaningless. Justice Jackson continued:

This very case provides a prime example of the pitfalls of Bruen’s approach. … But even setting aside whether the historical examples the Government found were sufficiently analogous, just canvassing the universe of historical records and gauging the sufficiency of such evidence is an exceedingly difficult task. … Meanwhile, the Rule of Law suffers.  That ideal—key to our democracy—thrives on legal standards that foster stability, facilitate consistency, and promote predictability. So far, Bruen’s history-focused test ticks none of those boxes. … [T] he Court should also be mindful of how its legal standards are actually playing out in real life.  We must remember that legislatures, seeking to implement meaningful reform for their constituents while simultaneously respecting the Second Amendment, are hobbled without a clear, workable test for assessing the constitutionality of their proposals. … And courts, which are currently at sea when it comes to evaluating firearms legislation, need a solid anchor for grounding their constitutional pronouncements.  The public, too, deserves clarity when this Court interprets our Constitution.

The “right to bear arms” is cribbed from one-half of one amendment, yanked out of its historical context, did not exist until sixteen years ago, and was not incorporated to the states until 2010. The Emperor has no clothes, and thankfully, at least Justice Brown is saying so.