Clarence Thomas and John Roberts Are at a Fork in the Road

Two years ago, when the Supreme Court decided New York State Rifle and Pistol Association Inc. v. Bruen, it created a jurisprudential mess that scrambled American gun laws. On Friday not only did the cleanup begin, but the Supreme Court also cleared the way for one of the most promising legal innovations for preventing gun violence: red flag laws.

The Bruen ruling did two things. First, it rendered a sensible and, in my view, correct decision that the “right of the people to keep and bear arms,” as articulated in the Second Amendment, includes a right to bear arms outside the home for self-defense. But the right isn’t unlimited. As Justice Brett Kavanaugh wrote in his concurrence in Bruen, the court did not “prohibit states from imposing licensing requirements for carrying a handgun for self-defense” and that “properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”

At the same time, the court articulated a “text, history and tradition” test for evaluating gun restrictions in future federal cases. Under this test, gun control measures were constitutional only if the government could demonstrate those restrictions were “consistent with the nation’s historical tradition of firearm regulation.” That was the most significant element of the Bruen case. Before Bruen, lower courts had struggled to establish a uniform legal test for evaluating gun restrictions, and the Supreme Court hadn’t provided any clarity.

Justice Clarence Thomas wrote the majority opinion in a 6-to-3 decision split along ideological lines. He applied the text, history and tradition test by walking through the very complex, often contradictory, history of American gun laws to determine whether New York’s restrictions had analogies with the colonial period or the periods after ratification of the Second Amendment and the Fourteenth Amendment, which applied the Second Amendment to the states. Under a fair reading of Thomas’s opinion, lower courts would be hard pressed to uphold any gun restriction unless they could point to an obvious historical match.

Not only was the history messy, but judicial reliance on founding-era legislation suffers from an additional conceptual flaw: State legislatures are hardly stuffed with constitutional scholars. Then and now, our state legislatures are prone to enact wildly unconstitutional legislation.

Our courts exist in part to check legislatures when they go astray. The courts do not rely on legislatures to establish constitutional doctrine. In our divided system of government, legislators are not tasked with interpreting constitutional law. Yes, they should take the Constitution into account when they draft laws, but the laws they draft aren’t precedent. They do not and should not bind the courts.

United States v. Rahimi, the case the Supreme Court decided on Friday, is a product of Bruen’s confusion. And the outcome is fascinating. Five of the six justices who voted in the majority in Bruen backed away from the clear implications of the decision. Thomas, by contrast, doubled down.

The case involves a man from Texas named Zackey Rahimi who was convicted of violating a federal law that prohibits individuals subject to domestic violence restraining orders from possessing firearms. He had threatened his girlfriend and another woman with a gun, and he was a suspect in a spate of additional shootings. After he threatened his girlfriend, he entered into an agreed domestic violence restraining order prohibiting him from threatening his girlfriend or from contacting her unless they were discussing their child. He promptly violated that order by approaching her home and contacting her on social media.

As Chief Justice John Roberts recounts in his majority opinion, when the police obtained a search warrant of Rahimi’s home to investigate the additional shootings, “they discovered a pistol, a rifle, ammunition — and a copy of the restraining order.”

Rahimi was indicted on one count of possessing a firearm while subject to a domestic violence restraining order. He challenged the indictment, arguing that Section 922(g)(8), the law he was charged under, violated the Second Amendment. The trial court and the court of appeals initially rejected the argument, but while the Fifth Circuit was considering his petition for a rehearing with the entire court, the Supreme Court decided Bruen.

The appeals court then took a fresh look at his case, applying the Thomas test. It searched for clear historical matches and — unable to find any — held that the government failed “to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our nation’s historical tradition of firearm regulation.” If this ruling held, every person subject to a domestic violence restraining order could have immediate access to firearms, assuming no other legal restrictions applied.

Even worse, if the Fifth Circuit’s ruling had stood, lawmakers seeking to justify virtually any gun regulation would have to be prepared to find colonial or early-American analogies for their proposed restriction or watch it fail in court. This would have meant that lawmakers facing modern gun violence problems involving modern weapons would have been constrained into essentially colonial and founding-era legal solutions.

In essence, that is the exact reverse of an argument that some gun control proponents make, that the Second Amendment protects only possession of colonial-era weapons. Under the Thomas test, the Second Amendment would permit only colonial-era restrictions.

On Friday, eight justices of the Supreme Court not only ruled against Rahimi. They clarified their approach to text, history and tradition in a way that freed lower courts from the straitjacket of finding precise historical analogies. Roberts declared that “some courts have misunderstood the methodology of our recent Second Amendment cases.” The court’s precedents “were not meant to suggest a law trapped in amber.” Or, as Justice Amy Coney Barrett wrote in her concurrence, “Historical regulations reveal a principle, not a mold.”

As a practical matter, this means, as Roberts wrote, that “when a challenged regulation does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster.’” Applying this more flexible framework, the court reached a holding that will echo beyond Rahimi’s case: “An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”

That holding is relevant not just to domestic violence restraining orders; it’s also relevant to so-called red-flag laws or extreme risk protective orders. Those laws, adopted in 21 states, empower specific individuals (like law enforcement or, in some cases, family members) to petition a court to order a person to surrender his guns if he exhibits dangerous or threatening behavior.

The reason for red-flag laws is clear: Research has demonstrated that mass shooters tend to broadcast violent intentions before they act. A National Institute of Justice-funded study of more than 50 years of mass killings, for example, found that “in most cases” mass shooters “engaged in leaking their plans before opening fire.” In 2018 the Republican governor of Arizona, Doug Ducey, commissioned a “Safe Arizona Schools” report, which found that in every one of the most recent and severe school shootings, a red-flag law could have prevented tragedy.

Thomas was the lone dissenter in Rahimi. Five justices wrote their own concurrences, many of them arguing that the Fifth Circuit misunderstood and misapplied Bruen. But Thomas argued that the Fifth Circuit got the analysis right because the founding generation “addressed the same societal problem as §922(g)(8) through the ‘materially different means’ of surety laws.”

Surety laws required a person who was suspected of threatening “future misbehavior” to post a bond, a sum of money that he’d forfeit if he broke the law. If he didn’t post a bond, he’d be jailed. But such reliance on a specific, narrow past legislative approach isn’t required by originalism. It is, itself, a policy choice.

Barrett put her objections well. “Imposing a test that demands overly specific analogues has serious problems,” she wrote. “It forces 21st-century regulations to follow late-18th-century policy choices, giving us ‘a law trapped in amber.’ And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a ‘use it or lose it’ view of legislative authority.”

“Such assumptions are flawed,” Barrett said, “and originalism does not require them.”

But that doesn’t mean history is useless. As Roberts wrote in the majority opinion, surety laws help confirm “what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”

The difference between Roberts and Thomas is clear. Roberts looks to past practice to establish a principle. Thomas looks to past practice as essentially establishing precedent.

Roberts gets it right. When we consider new policies in the present, the acts of the past are instructive but not binding. Modern American lawmakers are not limited by the colonial imagination.

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