We Don't Need to Pretend Clarence Thomas Can Read the Founders' Minds
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.
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.
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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.
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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.