The Supreme Court reputedly has a long-awaited conservative majority committed to enforcing the meaning of the Constitution as it was understood when it was adopted. This commitment to originalist interpretation will soon be tested in two cases now before the court that have what lawyers call “bad optics.”
One case, United States v. Rahimi, involves a Second Amendment challenge to a federal statute criminalizing the possession of firearms by people subject to certain domestic violence restraining orders. State courts typically use these orders to forbid threatening or abusive conduct toward the subject’s “intimate partner.” The federal gun ban is automatically imposed if the order either says that the subject presents a credible threat to the physical safety of the partner or explicitly forbids the use of physical force against the partner.
The other case, Garland v. Cargill, involves a regulatory ban on “bump stocks” that enable a semiautomatic rifle to achieve a rate of fire comparable to that of fully automatic machine guns. After a 2017 Las Vegas massacre in which semiautomatic rifles equipped with bump stocks were used to kill 60 people and injure hundreds more, the Trump administration classified them as machine guns, which made them illegal.
No judge can relish being accused of siding with domestic abusers or of allowing a weapon to remain on the market that facilitated mass murder. Unless the court rules in favor of the government in these cases, denunciations undoubtedly will follow, especially in an election year.
These cases have come before a court that has been transformed by Republican efforts to stop the politicized use of judicial power to effect progressive social change. What began with calls for judicial restraint during the Nixon era eventually became a long campaign devoted to promoting originalist theories of interpretation.
This effort had its first conspicuous success in 2008, when a 5-to-4 majority struck down a handgun ban in District of Columbia v. Heller. Justice Antonin Scalia’s majority opinion featured a detailed originalist analysis that rejected an overwhelming and longstanding consensus in the lower courts. Rather than assume that the Second Amendment protects only a right of state governments to maintain militia organizations, the court concluded that the constitutional “right of the people to keep and bear arms” may be exercised by individuals for the purpose of self-defense.
Although the decision was seen as a milestone for originalism, the lower courts refused to go along. They adopted a deferential balancing test — like the one advocated by Justice Stephen Breyer in his Heller dissent — under which the courts should uphold almost any regulation that might serve the worthy purpose of promoting public safety. Applying that approach, the lower courts essentially rubber-stamped virtually every gun-control law they reviewed.
In 2022, the Supreme Court struck back. In New York State Rifle & Pistol Association Inc. v. Bruen, the court invalidated a New York law that forbade individuals to carry a firearm in public unless they could persuade a government official that they faced some extraordinary threat to their personal safety. This was an easy case on originalist grounds because a right restricted to a tiny subset of the population cannot be the “right of the people” that the Constitution says “shall not be infringed.”
But the court went further, adopting a new legal test designed to enforce the original meaning of the Second Amendment. When defending a law that deprives an individual of the freedom to keep or bear arms, the court said, the government has the burden of proving that the law “is consistent with the nation’s historical tradition of firearm regulation.” Thus, for example, the absence of a historical regulation “distinctly similar” to a modern gun-control law is evidence of the modern regulation’s unconstitutionality. And Bruen ruled out “traditions” that did not begin until the 20th century.
This is a plausible way to identify certain exceptions to the Constitution’s linguistically unqualified prohibition. Just as the court has assumed that the First Amendment’s protection of “the freedom of speech” was not meant to ban longstanding and uncontroversial laws against perjury and fraud, similarly longstanding and well-accepted regulations of weapons would presumably not infringe the right protected by the Second Amendment.
Under Bruen’s originalist test, Rahimi should be an easy case. The government has not informed the Supreme Court of a single pre-20th-century law that punished American citizens, even those who had been convicted of a violent crime, for possessing a gun in their own homes. Not one.
The subject of the case, Zackey Rahimi, however, is an unsympathetic defendant. His ex-girlfriend obtained a protective order against him on the ground that he had assaulted her, and he has been charged with several crimes involving the misuse of firearms. Although he apparently had not been convicted of any offenses when the restraining order was issued, that order immediately and automatically criminalized his possession of a firearm under federal law.
If the court pretends that a historical tradition of such laws existed, it will not be faithful either to Bruen’s holding or to the court’s repeated insistence that the right to keep and bear arms is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”
Imagine that an overwrought woman called her ex-boyfriend and threatened to scratch his eyes out. If a state court ordered her to refrain from making such calls and from physically attacking him, the federal statute at issue in Rahimi would automatically make her a felon if she kept a gun in her own home. And that would be true even if she had good reason to fear a violent attack from the ex-boyfriend or his criminal associates. But no court would uphold a statute that made this restraining order a sufficient basis on which to criminalize her possession of a telephone. We will soon find out whether the Supreme Court takes the Second Amendment as seriously as the First.
The fidelity of the conservative justices to originalist legal principles will also be tested in Garland v. Cargill. Under those principles, only the text of a statute is the law, which cannot be changed unless Congress amends it by enacting a new law. That means courts may never give precedence over the text to their own views of good policy or to their speculations about what policies are popular in Congress.
The National Firearms Act of 1934 places very stringent regulatory restrictions on machine guns, which Congress defined as any weapon that shoots “automatically more than one shot, without manual reloading, by a single function of the trigger.” Because bump stocks like those at issue in the case now before the court require the shooter to release and then depress the trigger again after each shot, the government initially concluded that they do not turn a semiautomatic rifle into a machine gun. That conclusion was dictated by the unambiguous language of the statute, which requires that multiple shots be fired “by a single function of the trigger.”
Since bump stocks permit a semiautomatic firearm to achieve a rate of fire comparable to that of a machine gun, it’s perfectly understandable that the government would want to update the 1934 law. Congress has done that repeatedly, going so far as to freeze the supply of legally owned machine guns in the Firearm Owners’ Protection Act of 1986. But if there is one central tenet in the originalist principles of statutory interpretation, it is that only Congress, not the president or the Supreme Court, has the constitutional authority to amend statutes. Upholding the Trump reclassification would require a majority of the justices to repudiate that principle, whether they admit it or not. And for what? To spare Congress the trouble of enacting a simple and presumably popular fix?
The goal of the conservative legal movement has been to replace the result-oriented adventurism of the Warren court during the 1950s and 1960s with respect for the original meaning of the Constitution, including its allocation to Congress of the sole authority to enact and amend statutes. If the government wins either of these cases, let alone both, that movement should recognize that its project has not succeeded.
Nelson Lund is a professor at the Antonin Scalia Law School at George Mason University and has written widely on constitutional law, including the Second Amendment.
Source images by Sean Gladwell and LPETTET/Getty Images
