Bloomberg Law
June 22, 2024, 11:00 AM UTC

Supreme Court Shows Division on History Test in Gun Decision

Lydia Wheeler
Lydia Wheeler
Senior Reporter
Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson
Senior Reporter

The US Supreme Court’s fractured decision in the latest big gun rights case shows the justices can’t quite agree on how to use history and tradition to analyze the constitutionality of firearm restrictions.

Friday’s ruling in United States v. Rahimi elicited separate writings from seven of the nine justices and only one was a dissent. Legal scholars say concurrences on both sides of the ideological line show there’s a rigorous debate going on over a legal theory that the court’s conservative majority has embraced in recent years.

“They’re not even disputing what the history and tradition that justifies this particular law is,” said Adam Winkler, UCLA School of Law professor who studies Second Amendment law. “The concurrences are debating originalism and whether the court should continue to use this history and tradition method of deciding constitutional cases.”

In upholding a federal law that bans people subject to domestic violence restraining orders from possessing a gun, Chief Justice John Roberts tried to clarify the court’s 2022 decision that told lower courts to look at history and tradition when deciding what gun regulations are permissible.

Roberts said some courts have misunderstood the methodology of the court’s recent Second Amendment cases as requiring a “historical twin” rather than a “historical analogue” for a law to survive.

“These precedents were not meant to suggest a law trapped in amber,” Roberts said, taking issue with the US Court of Appeals for the Fifth Circuit’s reading of the court’s 2022 ruling in New York State Rifle & Pistol Association Inc. v. Bruen.

Fractured Approach

To reach its decision, the court said there’s a Second Amendment principle underpinning the nation’s history and tradition that allows people found by a court to pose a credible threat of violence to be temporarily disarmed.

Justice Clarence Thomas was the only member of the court to disagree. He argued there’s no historical law revoking a citizen’s Second Amendment right based in possible interpersonal violence that justifies the federal ban on people subject to domestic violence restraining orders.

Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett signed on to Roberts’ 8-1 majority ruling but each wrote separate opinions.

“One could look at this like here is a statement by the originalist justices of what they’re looking for and we don’t get that,” said Joseph Blocher, faculty co-director of the Center for Firearms Law at Duke University School of Law

“Absolutely we’re not seeing a unified approach to originalism,” he said.

While Gorsuch says the Constitution and its original meaning should still be the enduring guide for analyzing gun laws though the world may change, Barrett seemed to call for a narrower approach. She said Bruen emphasized “analogical reasoning” is not a “regulatory straightjacket” and noted there’s a serious problem in “forcing 21st-century regulations to follow late-18th-century policy choices.”

Some court watchers read the conservatives’ concurrences as each justice broadly defending originalism beyond the specifics of this case.

It shows “there are very much cracks in the conservative side of the court in regard to their approach,” said Douglas Letter, chief legal officer of Brady, a non-profit that advocates for gun violence prevention.

Other legal scholars say Gorsuch, Kavanaugh, and Barrett are simply trying to flesh out a new area of jurisprudence that’s still in its early days.

“It does show that there’s room to debate among originalists, among people who think that text, history, and tradition are important, among people who agree that Bruen was correctly decided for the reasons expressed, so they’re writing for case books and people who want to further develop originalist jurisprudence in a variety of areas of law,” said Ilya Shapiro, director of constitutional studies at the Manhattan Institute, a conservative think tank.

Other Examples

The debate over originalism isn’t new and in recent decisions have focused on how to use history and tradition.

The justices, through concurring opinions, have been debating the proper method, most recently in a trademark case involving former President Donald Trump. In that case, Vidal v. Elster, Barrett disagreed with the majority’s use of history and tradition to determine whether trademark registration restrictions violate free speech guarantees.

The court “never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question,” Barrett wrote. Moreover, she criticized the majority of cherry picking the historical record, saying that it “does not fully grapple with countervailing evidence.”

And in an unusual pairing of justices, Sotomayor, Kavanaugh, and Barrett joined Kagan’s concurring opinion in an administrative law case earlier in the term.

In Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd., Kagan wrote that even when history and tradition is the proper test, the court should look beyond the practice at the time the law was passed. “Continuing tradition” after ratification can provide insight into the law’s meaning, she said.

These aren’t the only examples. Barrett in Rahimi notes that she “expressed reservations” about the scope of history in the Bruen decision itself. Ultimately, the court in Rahimi “settles on just the right” spot, she said.

Courts ‘At Sea’

Roberts’ ability to get four members of the court’s conservative wing to join him and the liberals shows a recognition among the justices that some corrective action was needed after Bruen, said Esther Sanchez-Gomez, litigation director for the Giffords Law Center, a nonprofit working to prevent gun violence.

“The majority opinion is relatively narrow to this case and doesn’t say a whole lot more other than making clear that Bruen is not as broad as some of the lower courts are reading it,” she said.

Justice Ketanji Brown Jackson noted just how narrow the ruling is in her concurrence by listing all the questions left unresolved by a decision that she said only inches the ball forward toward a workable standard for applying Bruen’s history test.

The court’s lack of clarity hobbles legislatures who don’t have a “clear, workable test for assessing the constitutionality of their proposals” and courts “are currently at sea when it comes to evaluating firearms legislation,” she said.

Some legal scholars say all the separate writing in this case will only continue to confuse lower courts.

“Now any lower court that wants to apply this history and tradition test now has to parse through the majority opinion, through the concurring opinions to try to figure out what will a majority of justices on the Supreme Court do,” Winkler said.

Southern Methodist University law professor Eric Ruben said in an email to “expect lower courts to continue to struggle to decide constitutional gun questions for years to come because history is often unclear and disputed.”

To contact the reporters on this story: Lydia Wheeler in Washington at; Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at

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