The Supreme Court: A Feather On The Whimsical Wind Of Historical Tradition

Today the whimsical winds of historical tradition blew the feathery quill of the United States Supreme Court in a different way. The current Supreme Court views themselves more historians than they do judges. That is because today’s originalist dominated Supreme Court defines, and limits, Constitutional rights based on the “historical tradition.” The Dobbs decision (reversing Roe v. Wade) stands for the proposition that there can be no right to abortion because “the right to abortion is not deeply rooted in the Nation’s history and tradition.”

In Rifle & Pistol Association v. Bruen, the Supreme Court found a New York law requiring a license to possess a gun was unconstitutional because there it was not “consistent with this Nation’s historical tradition of firearm regulation.”

That Bruen case sets up today’s eddy on the fickle winds of historical interpretation. 18 U.S.C. § 922(g)(8) makes it illegal for anyone subject to a domestic violence restraining order to possess guns if a court finds the person “represents a credible threat to the physical safety” of a domestic partner or child.

Zackey Rahimi, after threatening his girlfriend more than once with a gun (which included firing it at least once), was found by a judge to represent a credible threat to a domestic partner and placed under a court order forbidding him to possess guns. He defied that order and was convicted under § 922(g)(8).

On appeal of his conviction to the 5th Circuit, the 5th Circuit panel initial ruled against him, holding the restraint against him reasonable, and not in violation of the 2d Amendment. Rahimi requested review of the full circuit (en banc). While that request was pending the Bruen case mentioned above was decided.

The full circuit concluded that Bruen’s requirement that any restriction on firearms be “consistent with this Nation’s historical tradition of firearm regulation,” set a standard not considered by the original panel. The full circuit remanded the case back to the panel with instructions to determine whether § 922(g)(8)’s prohibition was consistent with historical traditions regulating guns. Reversing itself, the 5th Circuit panel found there was no historical tradition of prohibiting gun possession based on court orders to protect others. Another apparent win for the gun lobby.

Today, the United States Supreme Court reversed, 8–1, holding that:

“When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.”

A rare victory for common sense gun control in the United States Supreme Court. However, I remind you, common sense is not the standard. The standard is whether court injunctions, of un-convicted persons, against their having firearms is something “consistent with this Nation’s historical tradition of firearm regulation.” This focus is the very essence of originalist thinking. However, this approach allows cherry picking whatever thin wisps from history are needed to support a decision conforming to a justice’s view how our nation should work. I suggest that such cherry picked thin wisps are at work here.

The 5th Circuit looked at the historical tradition, as the Supreme Court in Bruen said it must, and found no historical tradition to deny guns based on a judge’s sole decision that someone was a threat to others. If convicted that would be different, but at the time Rahimi was charged for having guns he had not yet been convicted. Today the Supreme Court found history says otherwise. How did it do so? I would argue rather thinly.

To find this historical tradition for taking away the right to guns the Supreme Court relied on laws that didn’t take away the right to guns. The first of these were “surety laws.” Such laws, on similar court orders, essentially required a person to post a monetary bond that would be forfeited if the gun were later misused. That this approach required the person to turn over only money, and not his guns, seems to be a bit of the history missed by the Supreme Court.

The majority also cites “going armed” laws from England that prohibited individuals deemed dangerous by the royal government from having guns. However, Justice Thomas in his dissent says the majority is just showing half the history. Thomas claims the Second Amendment stems from resistance to such laws which our Founders believed were abused by British authorities.

In short, laws targeting ‘dangerous’ persons led to the Second Amendment. It would be passing strange to permit the Government to resurrect those self-same ‘dangerous’ person laws to chip away at that Amendment’s guarantee.

There must be something to the argument that citing pre-American revolution British history to define the limits of our own liberties is folly considering that revolution was against British restrictions on our liberty. Yet the Supreme Court did exactly that for abortion in Dobbs, repeatedly citing a 17th Century British judge who had witches hanged when determining the historical traditions of this nation.

In Dobbs the Supreme Court cherry picked from wisps of history to get the result justices wanted. Today in Rahimi the Supreme Court did the same. Even if we happen to appreciate the result this time the methodology of originalism is flawed.

The lessons of history are not always clear or indisputable. The court’s strain to cherry pick history in Dobbs was so corrupt as to rely on what amounted to witch burning reasoning. Today the court strained to cherry pick more sensibly, but we obviously can’t count on that.