It’s Time for a Rahimi Pop Quiz!

Joseph Fishkin

Question: Can you distinguish real Supreme Court justices doing “history-and-tradition” from parody intended to illustrate how the method turns out, oddly enough, to be precisely the thing it says it’s against—an opportunity for judges to reach preferred results?

Directions: The following text is a mishmash of (a) actual quotes from the Supreme Court’s various opinions in today’s Rahimi case (just that case, no others) and (b) fake quotes, some of which, really, no self-respecting Supreme Court Justice should be caught uttering.  Your task is simple: attempt to tell the difference.  Copy-paste this text and try to highlight the actual quotes.  No peeking at the real opinion.  Sometimes a single sentence will include both (a) and (b).  I didn’t say this would be easy.  Answers after the jump.  Good luck!

United States v. Rahimi

Per Curiam

         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.  Perhaps judges’ jobs would be easier if they could simply strike the policy balance they prefer.  In that case it surely would not take 103 dense pages to resolve the question of whether the government may remove guns from domestic abusers.  But judges must act like umpires, and sometimes it takes umpires many pages and several concurrences to distinguish a ball from a strike, especially in the relatively early innings.

         The first stop in this Court’s constitutional decisionmaking is the Court’s precedents—the accumulated wisdom of jurists from Marshall and Story to Harlan and Taft; from Hughes and Black to Jackson and White; from Rehnquist and O’Connor to Kennedy and Scalia; from Warren and Douglas to Brennan and Marshall.  Some may argue that a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy. But we are also mindful of the dangers of approaches based on generalized principles.  Accordingly, in this case we will identify a principle in the Second Amendment that is neither too specific nor too generalized, a perfectly balanced and principled Goldilocks level of generality.

         Unfortunately, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber. Only the Constitution is trapped in amber. Developments in the world change, facts on the ground may evolve, and new laws may invite new challenges, but the job of the originalist judge is to paper over all of that and make results that are reasonable today appear to flow inexorably from the authority of history itself.  Reliance on history is more consistent with the properly neutral judicial role than an approach where judges subtly (or not so subtly) impose their own policy views on the American people.

            Judges can choose their sources.  But they absolutely must not extrapolate their own broad new principles from those sources. Because then no one can have any idea how they might rule. Courts, which are currently at sea when it comes to evaluating firearms legislation, need a solid anchor for grounding their constitutional pronouncements. That anchor is the Constitution.  Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.  

         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. By the time this Court decided Bruen, every court of appeals evaluating whether a firearm regulation was consistent with the Second Amendment did so using a two-step framework that incorporated means-end scrutiny. However, that approach involves balancing, and that we shall not do.  The balancing approach requires judges to weigh the benefits of a law against its burdens—a value-laden and political task that is usually reserved for the political branches. And that power in essence vests judges with “a roving commission to second-guess” legislators and administrative officers “concerning what is best for the country.”

         The balancing tests (heightened scrutiny and the like) are a relatively modern judicial innovation in constitutional decisionmaking, entirely unlike originalism. The Court appears to have adopted heightened-scrutiny tests by accident in the 1950s and 1960s.  In contrast, when we adopted originalism in the 1980s, we did it on purpose.  To be sure, today we are less concerned about purpose—or even original public meaning.  What matters is history and tradition.  The balancing approach can be antithetical to the principle that judges must act like umpires. It turns judges into players.  We are not players. We do not play.

         Therefore, the law must comport with the principles underlying the Second Amendment, but it need not be a dead ringer or a historical twin. If not a twin, a cousin?  Perhaps a second cousin once removed who looks more like a principle?  Courts must proceed with care in making comparisons to historic firearms regulations, or else they risk gaming away an individual right the people expressly preserved for themselves in the Constitution’s text.  

         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.  Not so general as to give judges the discretion to reach the result they think is correct in each case, but just general enough to reach the correct result in this case.  Harder level-of-generality problems can await another day.

         One could, of course, argue that laws targeting “dangerous” persons led to the Second Amendment. It would be passing strange to permit the Government to resurrect those selfsame “dangerous” person laws to chip away at that Amendment’s guarantee. But “dangerous” is a category sufficiently broad to encompass the law before us, and not so broad as to sound like we judges are exercising judgment.  Therefore we are going with it. An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment. 

         The judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

 Answers below——

ANSWER KEY:

United States v. Rahimi

Per Curiam

         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.  Perhaps judges’ jobs would be easier if they could simply strike the policy balance they prefer.  In that case it surely would not take 103 dense pages to resolve the question of whether the government may remove guns from domestic abusers.  But judges must act like umpires, and sometimes it takes umpires many pages and several concurrences to distinguish a ball from a strike, especially in the relatively early innings.

         The first stop in this Court’s constitutional decisionmaking is the Court’s precedents—the accumulated wisdom of jurists from Marshall and Story to Harlan and Taft; from Hughes and Black to Jackson and White; from Rehnquist and O’Connor to Kennedy and Scalia; from Warren and Douglas to Brennan and Marshall.  Some may argue that a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy. But we are also mindful of the dangers of approaches based on generalized principles.  Accordingly, in this case we will identify a principle in the Second Amendment that is neither too specific nor too generalized, a perfectly balanced and principled Goldilocks level of generality.

         Unfortunately, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber. Only the Constitution is trapped in amber. Developments in the world change, facts on the ground may evolve, and new laws may invite new challenges, but the job of the originalist judge is to paper over all of that and make results that are reasonable today appear to flow inexorably from the authority of history itself.  Reliance on history is more consistent with the properly neutral judicial role than an approach where judges subtly (or not so subtly) impose their own policy views on the American people.

            Judges can choose their sources.  But they absolutely must not extrapolate their own broad new principles from those sources.  Because then no one can have any idea how they might rule. Courts, which are currently at sea when it comes to evaluating firearms legislation, need a solid anchor for grounding their constitutional pronouncements. That anchor is the Constitution.  Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow.  

         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. By the time this Court decided Bruen, every court of appeals evaluating whether a firearm regulation was consistent with the Second Amendment did so using a two-step framework that incorporated means-end scrutiny. However, that approach involves balancing, and that we shall not do.  The balancing approach requires judges to weigh the benefits of a law against its burdens—a value-laden and political task that is usually reserved for the political branches. And that power in essence vests judges with “a roving commission to second-guess” legislators and administrative officers “concerning what is best for the country.”

         The balancing tests (heightened scrutiny and the like) are a relatively modern judicial innovation in constitutional decisionmaking, entirely unlike originalism. The Court appears to have adopted heightened-scrutiny tests by accident in the 1950s and 1960s.  In contrast, when we adopted originalism in the 1980s, we did it on purpose.  To be sure, today we are less concerned about purpose—or even original public meaning.  What matters is history and tradition.  The balancing approach can be antithetical to the principle that judges must act like umpires. It turns judges into players.  We are not players. We do not play.

         Therefore, the law must comport with the principles underlying the Second Amendment, but it need not be a dead ringer or a historical twin. If not a twin, a cousin?  Perhaps a second cousin once removed who looks more like a principle?  Courts must proceed with care in making comparisons to historic firearms regulations, or else they risk gaming away an individual right the people expressly preserved for themselves in the Constitution’s text.  

         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.  Not so general as to give judges the discretion to reach the result they think is correct in each case, but just general enough to reach the correct result in this case.  Harder level-of-generality problems can await another day.

         One could, of course, argue that laws targeting “dangerous” persons led to the Second Amendment. It would be passing strange to permit the Government to resurrect those selfsame “dangerous” person laws to chip away at that Amendment’s guarantee. But “dangerous” is a category sufficiently broad to encompass the law before us, and not so broad as to sound like we judges are exercising judgment.  Therefore we are going with it. An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment. 

         The judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Color guide:

Pink: Roberts

Bright Green: Kavanaugh

Hunter Green: Thomas

Yellow: Barrett

Blue: Gorsuch

Gray: Sotomayor

Red: Jackson