The Supreme Court’s gun rights decision deepens the cracks in originalism

In a decision that provoked a sigh of relief in most of the country, the Supreme Court ruled 8-1 last week that a 30-year-old federal law barring accused domestic abusers from having guns while under a restraining order was constitutional under the Second Amendment. In doing so, it overturned the unanimous lower court ruling by a three-judge panel of the conservative Fifth Circuit that previously struck down the federal law.

In U.S. v. Rahimi, the court majority continued its embrace of an idea derived from the principle of constitutional originalism — in this instance, that current gun laws should be judged according to whether similar laws existed in the country’s past. Perhaps recognizing the manifold problems with this doctrine, and as if to loosen the originalist straitjacket, Chief Justice John Roberts wrote that the relevant historical inquiry was “whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”

Using this principle, Roberts cited the “error” of the lower court ruling striking down the domestic abuse law when it required a “historical twin” rather than a “historical analogue.” Roberts added that the framework set out in the 2022 Bruen ruling — the 6-3 ruling authored by Justice Clarence Thomas that broadened gun rights and engineered the history-only standard for evaluating the constitutionality of modern gun laws — was “not meant to suggest a law trapped in amber.”

In her concurrence, Justice Sonya Sotomayor noted with approval that the majority opinion now “permits a historical inquiry calibrated to reveal something useful and transferable to the present day” rather than whether the challenged law is “a precise historical analogue.” In other words, absolutist originalists have often concluded that similar historical laws were unacceptable because they weren’t identical to the modern ones.

Another indication that the court’s conservatives are rethinking blind adherence to originalism came earlier this month, when Justice Amy Coney Barrett wrote that Thomas’s opinion in a trademark case leaned too much into a “laser-like focus on the history” that “misses the forest for the trees.” A further suggestive indication that Thomas’s originalism extremism may be wearing thin came in the recent revelation that he was initially unable to corral five votes for the Bruen majority opinion.

The concise Rahimi majority opinion cited two types of old weapons laws that provided appropriate historical analogues: “surety” laws and “affray” laws. Dating to the Middle Ages, surety laws allowed magistrates to require those who were “suspect of future misbehavior” to post a bond that would then be forfeited if the suspect misbehaved. Those failing to pay could be imprisoned. Misuse of firearms was commonly addressed through surety laws.

Affray law punished those who carried weapons “to the terror of the people” or that otherwise disturbed the peace. Thomas, the lone dissenter in Rahimi, rejected both types of laws as insufficient, opining that defenders of the domestic abuse law did “not offer a single historical regulation that is relevantly similar.”

While the court cited several specific examples of affray laws, my decade-long research on old gun laws reveals that what are also known as weapons-brandishing and display laws were in fact common (as were surety laws). From the 1600s to the end of the 1800s, at least three-quarters of the states had laws that punished such public weapons displays. About half of these state laws punished those who displayed weapons publicly in a threatening manner, but the other half punished the mere public presence of weapons — that is, the mere appearance of weapons-carrying in public was sufficient grounds for legal action.

These two types of laws aside, I have catalogued other types of old weapons laws where the penalty was, as with modern domestic violence laws, gun confiscation.

For example, between the 1600s to the early 1900s, at least 35 states penalized those who illegally carried concealed weapons by confiscating those weapons. During the same time period, at least nine states enacted hunting laws where the penalty for a violation — including such offenses as hunting on private or restricted lands, at restricted times or hunting certain types of protected game — was forfeiture of the person’s gun. In addition, old weapons laws were enacted to keep or take weapons from those deemed vagrants, tramps and those of “unsound mind.”

Looking back on these laws, society today would surely balk at the idea that vague categories like vagrancy or being labeled a “tramp” (and vagueness was the hallmark of many of these old laws) should serve as the basis for defining rights today. But that is one of the many dead ends to which originalism orthodoxy leads.

And when it comes to old gun laws, the historical reality is that, in many respects, guns and other weapons were more strictly regulated during America’s first 300 years than during the last 30.

Robert J. Spitzer is Distinguished Service Professor emeritus of political science at SUNY Cortland, and an adjunct professor at the College of William and Mary School of Law. He is the author of six books on gun policy, including “The Gun Dilemma” and the new 9th edition of “The Politics of Gun Control.”