The ascent of originalism as a method of constitutional interpretation, both in law schools and federal courts, over the past few decades has been impressive. It of course predominates on the current Supreme Court. Yet just when originalism has reached the apogee of its influence, the doctrine discloses a disabling weakness. This point is especially true in the area where originalism is practiced in its purest form: namely, the Second Amendment.
With New York State Rifle & Pistol Ass’n v. Bruen (2022), the Court established the history-and-tradition standard for evaluating gun regulations. The inquiry, which requires that contemporary gun laws have some level of support in the history and tradition of gun regulation, replaced the means–ends balancing that lower federal courts had used prior to Bruen and that is established in other contexts. The flaw is that the history-and-tradition standard, which promises to fetter judicial discretion, turns out to be merely a new garment covering the exercise of raw judicial power to advance obvious policy goals.
The Court’s first application of Bruen’s new framework came last term in U.S. v. Rahimi. In this case, the Court upheld a federal statute that prohibits an individual who is subject to a restraining order for domestic violence from possessing a firearm. The decision was 8–1, but that bare result papers over some notable disagreements on the Court. There were five concurrences and one dissent. The dissent was written by Justice Clarence Thomas, who wrote the majority opinion in Bruen. So the author of the Bruen history-and-tradition standard says the Rahimi majority misapplies it: That is not a good doctrinal launch.
Justice Brett Kavanaugh’s Rahimi concurrence attempts a full defense of the history-and-tradition approach. He is sharply — and rightly — critical of the broad discretion available to judges when employing means–end balancing in analyzing constitutional rights; it is little more than a method of judicial policy-making. By contrast, Justice Kavanaugh contends, “a history-based methodology supplies direction and imposes a neutral and democratically infused constraint on judicial decisionmaking.”
This all sounds reasonable enough, but a major en banc decision issued on August 6 by the Fourth Circuit Court of Appeals shows how naïve or mistaken the Justice Kavanaugh argument is. In Bianchi v. Brown, the appeals court was faced with a constitutional challenge to Maryland’s ban on assault weapons (essentially a ban on AR-15s). The Fourth Circuit upheld the ban by a 9–6 vote. The majority opinion was written, with characteristic deference to our fundamentally democratic process, by the estimable Judge J. Harvie Wilkinson III, perhaps the most distinguished federal appellate judge currently sitting. He is a prominent judicial conservative but also a leading (and rare Republican-appointed) critic of the Supreme Court’s entire Second Amendment jurisprudence. The eight other judges who joined his majority opinion were all appointed by Democratic presidents. The six dissenters were all appointed by Republican presidents.
In other words, the court voted the way a legislative body would on this central issue of gun regulation. To be sure, the court’s opinions are drenched in historical analysis, but the unavoidable conclusion is that these often dense and complicated materials are just being adroitly arranged to reach desired partisan ends. The basically straight party divide in the Fourth Circuit’s Bianchi vote is not an accident or a coincidence; it is a methodological embarrassment.
Originalism is most valuable in areas where the historical record is clear. For example, the ahistorical and aggressively result-driven usurpation of Roe v. Wade (1973) was overruled by Dobbs v. Jackson Women’s Health Organization (2022), which adroitly used history and tradition to demonstrate that a right to abortion never had any basis at all in the Constitution’s text, history, or tradition. Also, in Obergefell v. Hodges (2015), the analytically lazy, rhetorically pretentious, and policy-driven majority opinion by Justice Anthony Kennedy that sanctioned same-sex marriage, was concisely demolished by Justice Antonin Scalia in his originalist dissent. He wrote: “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” History here yields one ineluctable conclusion, and the issue should have remained under majoritarian control.
But history is often opaque, and in this murkiness judicial discretion flourishes. In his superb book Cosmic Constitutional Theory (2012), Judge Wilkinson summarizes the problem:
For all its virtues, originalism has failed to deliver on its promise of restraint. Activism still characterizes many a judicial decision, and originalist judges have been among the worst offenders. They may sincerely strive to discover and apply the Constitution’s original understanding, but somehow personal preferences and original understandings seemingly manage to converge.
Indeed they do. It is sobering to realize that it may just be in the nature of the exercise of judicial power for this sort of thing to happen. The Court’s Second Amendment cases, far from being the jewel in the crown of originalism, are nothing more than gross judicial overreaching, patently reminiscent of Warren Court adventurism, for conservative political ends. Flintlock history is being manipulated to subvert contemporary legislative attempts to regulate an out-of-control AR-15 world.
Yet there is a breezy overconfidence in the use of history as a check on judicial abuses of power advocated by Justice Kavanaugh and other originalists. The knotty, often impenetrable complexities that pervade historical analysis are casually dismissed. (“In some cases,” he opines, “text, history and precedent may point is somewhat different directions. In law as in life, nothing is perfect.”) From the evidence of Bruen and its progeny, this is a problem that has made a mockery of Second Amendment cases and threatens the integrity of the entire originalist project.