The SCOTUS just overturned a lower court ruling saying that a federal law unconstitutionally barred a domestic abuser under a restraining order from possessing a gun.
If you’re wondering how it was possible for the lower court to think something that crazy, it was because they were trying to interpret the Bruen precedent set by the SCOTUS a mere two years ago that gun control laws are only constitutional if they are within the “history and tradition” of gun control laws in the United States. Lower courts have been protesting to the SCOTUS both that it’s incredibly hard to come up with a satisfactory answer for what is and isn’t in the “history and tradition” of US gun control laws and that trying to use the standard means adopting a lot of extremely outdated views on things like domestic violence.
Lower courts in attempting to apply the “history and tradition” test they concluded that there were no analogous laws in the early USA to our modern laws taking guns away from people with restraining orders for domestic abuse, which of course is a misunderstanding according to John Roberts. In his opinion:
Well, not only are the lower courts confused, some of his own Supreme Court are confused. Clarence Thomas, the author of the Bruen ruling, was the lone dissenter to the ruling and he feels that the opinion he authored does disallow taking guns from domestic abusers in this situation.
Additionally, the 3 liberal justices concurred with the ruling, but in their concurrences stated that they still disagree with the Bruen standard.
In Jackson’s concurrence, she does a great job pointing out the issues with the history and tradition test:
She is completely right. I found a blog talking about what I believe is one of the laws Roberts mentions as analogous to the present day law in dispute, and it’s from 1835. Why does 1835 count? It’s a generation after the 2nd amendment was ratified. And if 1835 is OK how late can we go? Quick aside on this particular blog post - it is discussing whether the law in question should count in the “history and tradition” standard for the original Bruen ruling, not the recent ruling.
No… just imprecise language. The lower court ruling said that a federal law unconstitutionally barred a domestic abuser under a restraining order from possessing a gun. The SCOTUS overturned that ruling.
Which, if you read anything beyond @DeadTreasSecretaries ’s initial sentence, is clearly what they meant.
The “history and tradition” standard, if taken at face value, is that every law passed since the first Congress is inconsistent with what went before and should be summarily struck down. IOW, a free-fire zone for libertarians of the old school.
And if it isn’t meant to be taken at face value, then what does it mean? Nobody knows. It’s an example of an “I know it when I see it” standard, but where the viewer needs to wear their 1790s-colored glasses to see properly.
It’s not even that. It’s “I know it when I see it” according to the conservative justices. There’s no way that a domestic abuser in the 1790s would have his guns confiscated – was domestic abuse even really considered a thing back then?
100%. Even Justice Barrett acknowledged the challenges of using a “historical tradition” framework in her concurrence in Rahimi. The entire opinion is worth a read, but here’s an excerpt that captures the essence of the problem:
To be consistent with historical limits, a challenged regulation need not be an updated model of a historical counterpart. Besides, imposing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us “a law trapped in amber.” Ante, at 7. 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, and originalism does not require them. https://www.supremecourt.gov/opinions/23pdf/22-915_8o6b.pdf
The real problem here is fundamental: the Court disregarded reason, reading comprehension, and 200 years of precedent in the Heller decision to create an individual right to bear arms. The same Barrett concurrence linked above begins with the following sentence:
Despite its unqualified text, the Second Amendment is not absolute.
Therein lies the problem; she’s wrong here about the text being unqualified. Notwithstanding its plain qualification (“A well regulated militia, being necessary to the security of a free state…”), the conservatives on the Court ignored said qualification and reinterpreted the second amendment in Heller to confer an individual right to bear arms for self defense, despite its language, history, and precedent. However, even they recognize that the right cannot be absolute.
So now they’re grasping at straws, trying to cobble together some way to uphold limits they support while simultaneously prohibiting limits with which they disagree. So they invent a “historical tradition” framework, on which the definition and application at least three conservative justices (Roberts, Barrett, and Thomas) can’t agree.
Which is exactly what I meant, if stated in somewhat more metaphorical terms.
To decide rightly under a “historical / traditional” standard is essentially to ask: “What would a 1790s legislature have done about [whatever]?”
As to domestic violence in particular, and in fact most other issues of the 21st Century in general, what they would have done is nothing, being simply incapable of conceiving of [whatever] existing, much less being a problem, much less being a problem worthy of addressing.
But it does make a superb excuse for simply scything down over 200 years of Federal progress since then.
Here’s a thought experiment, one I’ve suggested previously: Justice Alito is transported back in time to, let’s say, 1820. He’s seated on SCOTUS when a case is before them challenging slavery, based on the assertion that it is a fundamental, foundational human right not to be subjected to chattel slavery.
The Constitution doesn’t specifically mention slavery. People “held in service,” or some weasel words. A textualist could interpret that as a chain gang member. An originalist would certainly know what it meant. But it says what it says, and slavery is not explicitly memorialized. A cowardly decision by the founders, but there you are.
How would Alito rule? History and tradition would demand that the argument is dismissed. Or would he rule in a Madisonian manner (even if Madison didn’t know this would be a consequence), acknowledging a heretofore ignored right that is so self-evident and foundational, it need not be enumerated to deserve protection?
If he rules for the plaintiff, then he acknowledges that history and tradition cannot rule the day when fundamental rights are in play. If he rules for the slaveholders, what more need be said regarding this judicial philosophy? Either ruling demonstrates that their approach is incoherent.
No, 1820 was itself during the “history and tradition” period, so instead of looking to another history and tradition further in the past, Alito could simply tap into the collective understanding of all things that existed back then.
We only think that there could have been constitutional ambiguities and disagreements between the founders because we’re tainted with our modern view that’s been corrupted by centuries of liberalism or something.
That’s why I time-traveled Alito, whose modern sensibilities conflict with the history and traditions of the 200 years leading up to 1820. What then? Acknowledge that there’s nothing inherent in “history and tradition” to legitimize anything? In fact, there’s volumes that show the opposite.
Or shrug his shoulders, say “What are you gonna do?” and rule for the slaveholders? ISTM that the latter would be the proper ruling given his judicial approach.
But either way lays bare the incoherence of his philosophy, either by ignoring it when an obvious human right is violated, or by ruling for a self-evident abuse of an indisputable human right. Alito would get no “man of his time” pass for his ignorance. Whether or not Madison intended it regarding slavery, the Ninth amendment clearly cares for rights abused by history and tradition.
