Text, History, and Tradition -- and Principle: Discussion Questions on United States v. Rahimi

JB

 As I have done in past years, I am publishing the discussion questions for the 2024 casebook supplement of Processes of Constitutional Decisionmaking for some of the major cases of the past Supreme Court Term. Here are the discussion questions for United States v. Rahimi.

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1. Course correction. Faced with a deeply unpalatable result in the Fifth Circuit and a sympathetic set of facts justifying regulation, eight Justices modified the history and tradition approach of Bruen while vigorously denying that they were doing any such thing. Indeed, Chief Justice Roberts blamed the lower courts for having “misunderstood the methodology of our recent Second Amendment cases.”

In Bruen, Justice Thomas argued that the Second Amendment right is framed by the scope of specific firearm regulations contemporaneous with the adoption of the Second Amendment (or the Fourteenth Amendment—he does not decide which). If a modern regulation does not sufficiently match these historical examples, it is unconstitutional.

In Rahimi, by contrast, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”  Now courts are directed to look at contemporaneous regulations and draw principles of permissible regulation from these examples: “A court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’ … Why and how the regulation burdens the right are central to this inquiry.” This means that modern regulations that 18^th and 19^th century legislatures never thought of can still be constitutional if contemporary courts can draw analogies between (1) the reasons why older statutes were passed and the reasons for the newer ones; and (2) the methods older regimes employed to regulate guns and the methods used by modern laws.

2. Levels of generality. A central feature of reasoning from principles is that principles do not determine the scope of their own extension. The problem of how to determine the proper scope of a legal principle occurs both when we construct a principle from a set of concrete examples and when we decide how to apply the principle we have constructed to a new situation.

The standard way of expressing the issue is that principles can be stated at different levels of generality. In fact, this is a bit inaccurate. That is because we might derive two different substantive principles from the same concrete examples even if both principles are roughly at the same level of generality or if each principle is more general in some respects and more specific in others.

For example, Chief Justice Roberts argues that “[t]aken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” But one might also derive the principle that when there is sufficient reason to believe that people are dangerous, they can be required to give financial guarantees and fined or subsequently punished if they cause harm to others or breach the peace.  This alternative principle is more specific in some ways and more general in others (for example, it does not require a “clear threat of physical violence” and it offers a broader choice of remedies). And in still other ways it is neither more general nor more specific, but just different. While Roberts’ principle would allow disarming people who are subject to a restraining order, the second principle would simply allow states to require surety bonds, enforce civil fines, and impose subsequent criminal punishments.

Equally important, the choice between these two principles is not determined by the set of examples used to construct them, since both fit more or less. Rather, the choice between them is determined by which principle makes the most sense in contemporary contexts. That is to say, the construction and application of principles is a way to employ historical examples to articulate and enforce contemporary values, in this case, the desire to protect victims of domestic violence.

Of course, Chief Justice Roberts does not admit that his opinion is driven by contemporary values rather than by the values of the framers. Rather, he describes the work of the framers so that it appears to produce results in line with contemporary values and balancing of interests. Is this a satisfactory solution? For a discussion of the problem in the context of gun rights and abortion regulation, see Reva B. Siegel, The “Levels of Generality” Game, or “History and Tradition” as the Right’s Living Constitution, 47 Harv. J.L. & Pub. Pol’y __ (forthcoming 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4808688.

In her concurrence Justice Barrett is forthright about the “level of generality problem.” She notes that “reasonable minds sometimes disagree about how broad or narrow the controlling principle should be. Here, though, the Court settles on just the right level of generality:” How does she know this?

3. Principles and interest balancing. In Heller, and again in Bruen, Justice Scalia and Justice Thomas rejected the idea that judges should engage in traditional scrutiny analysis in Second Amendment cases. They argued that scrutiny analysis balances the harms and benefits of gun regulation in terms of judges’ contemporary values, rather than being bound by the values of the framers. Justice Jackson’s concurrence in Rahimi argues that this approach is misguided: A balancing of interests is inevitable, and letting lower courts engage in standard scrutiny analysis, which is familiar to them, leads to more predictable results than Bruen’s history and tradition approach.

It remains to be seen how Rahimi’s loosening of Bruen’s strictures will operate in practice. On the one hand, allowing judges to talk in terms of principles lets judges balance the harms and benefits of contemporary gun regulation in light of contemporary values without saying so, which might lead to greater convergence in the lower courts. Or it might make it even easier for judges to disagree based on ideological priors. A recent study of lower court judges in Second Amendment cases finds that judges appointed by President Donald Trump are far more likely to support Second Amendment claims than all other judges, regardless of the party of the appointing president. Rebecca Brown, Lee Epstein & Mitu Gulati, Guns, Judges, And Trump, SSRN, June 27, 2024, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4873330.

4. Fifty shades of originalism. One of the most remarkable features of Rahimi is that the Court’s course correction motivated three of the Court’s originalist Justices to reassert and defend their individual approaches to originalist methodology, and the fourth, Justice Thomas, to denounce the Court’s deviation from the correct path.

The three originalist concurrences take different approaches.

Justice Barrett offers significant criticisms of Bruen. She distinguishes adoption history, which is binding, from subsequent history, which is not, unless it sheds light on adoption history. “[E]vidence of 'tradition' unmoored from original meaning is not binding law. ... And scattered cases or regulations pulled from history may have little bearing on the meaning of the text." In addition, "imposing a test that demands overly specific analogues has serious problems. ... It forces 21st-century regulations to follow late-18th-century policy choices, giving us 'a law trapped in amber.' And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a ‘use it or lose it’ view of legislative authority. Such assumptions are flawed, and originalism does not require them."

Justice Gorsuch explains that "[w]e have no authority to question [the framers'] judgment [about the risks of an 'arms-bearing citizenry']. As judges charged with respecting the people’s directions in the Constitution—directions that are 'trapped in amber,' our only lawful role is to apply them in the cases that come before us.” A court, Justice Gorsuch explains, "may not 'extrapolate' from the Constitution’s text and history 'the values behind [that right], and then ... enforce its guarantees only to the extent they serve (in the courts’ views) those underlying values.'"

Justice Kavanaugh argues that “Judges are like umpires …. To be an umpire, the judge 'must stick close to the text and the history, and their fair implications,' because there 'is no principled way' for a neutral judge 'to prefer any claimed human value to any other.'" Citing Justice Scalia, he argues that “History establishes a ‘criterion that is conceptually quite separate from the preferences of the judge himself.’”

Which of the three concurrences do you find most persuasive and why?