# According to Justice Roberts, nearly everyone besides him misunderstands the "tradition and history" precedent **URL:** \ **Category:** Great Debates\ **Created:** [June 24, 2024, 4:21am UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253 "2024-06-24T04:21:15Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![DeadTreasSecretaries](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/deadtreassecretaries/32/4817_2.png) [@DeadTreasSecretaries](https://boards.straightdope.com/u/DeadTreasSecretaries)\ **Post date:** [June 24, 2024, 4:21am UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/1 "2024-06-24T04:21:16Z")
The SCOTUS just [overturned a lower court ruling](https://www.scotusblog.com/2024/06/supreme-court-upholds-bar-on-guns-with-domestic-violence-restraining-orders/) 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](https://en.wikipedia.org/wiki/New_York_State_Rifle_%26_Pistol_Association,_Inc._v._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“history and tradition” of US gun control laws and that trying to use the standard means adopting a lot of extremely outdated views on things like domestic violence.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: > [@](#): > > Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber. As we explained in Heller, for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding. Rather, it “extends, prima facie, to all instruments that con- > stitute bearable arms, even those that were not [yet] in existence.” By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers. > > As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. A court must ascertain whether the new law is “relevantly similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” Discerning and developing the law in this way is “a commonplace task for any lawyer or judge.” 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: > [@](#): > > Neither the parties nor the Fifth Circuit had the benefit of today’s decision, in which we hold that the Government had in fact offered “ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” But even setting aside whether the historical examples the Government found were sufficiently analogous, just canvassing the universe of historical records and gauging the sufficiency of such evidence is an exceedingly difficult task. > > Consistent analyses and outcomes are likely to remain elusive because whether Bruen’s test is satisfied in a particular case seems to depend on the suitability of whatever historical sources the parties can manage to cobble together, as well as the level of generality at which a court evaluates those sources—neither of which we have as yet adequately clarified. > > And the unresolved questions hardly end there. Who is protected by the Second Amendment, from a historical perspective? To what conduct does the Second Amendment’s plain text apply? To what historical era (or eras) should courts look to divine a historical tradition of gun regulation? How many analogues add up to a tradition? Must there be evidence that those analogues were enforced or subject to judicial scrutiny? How much support can nonstatutory sources lend? I could go on—as others have. But I won’t. She is completely right. I [found](https://firearmslaw.duke.edu/2022/06/the-myth-of-the-massachusetts-model) 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. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [June 24, 2024, 5:11am UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/2 "2024-06-24T05:11:47Z")
> [@DeadTreasSecretaries](#): > > The SCOTUS just [overturned a lower court ruling](https://www.scotusblog.com/2024/06/supreme-court-upholds-bar-on-guns-with-domestic-violence-restraining-orders/) saying that a federal law unconstitutionally barred a domestic abuser under a restraining order from possessing a gun. That’s the exact opposite of what the article you cited says. > [@](#): > > The Supreme Court on Friday upheld a federal law that bars anyone subject to a domestic-violence restraining order from possessing a gun. By a vote of 8-1, the court ruled that the law does not violate the Constitution’s Second Amendment, which protects the “right of the people to keep and bear Arms.”… > > Rahimi argued that the law violates the Second Amendment, and in the wake of the Supreme Court’s decision in Bruen, the U.S. Court of Appeals for the 5th Circuit agreed. It explained that although the government was not required to identify a “historical twin” to the law, it had not provided the kind of “well-established and representative analogue” needed for the law to survive. > > On Friday, the court reversed the 5th Circuit’s decision. ---
**Author:** ![Eonwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eonwe/32/240_2.png) [@Eonwe](https://boards.straightdope.com/u/Eonwe)\ **Post date:** [June 24, 2024, 5:31am UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/3 "2024-06-24T05:31:10Z")
> [@Smapti](#): > > That’s the exact opposite of what the article you cited says. 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. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [June 24, 2024, 5:38am UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/4 "2024-06-24T05:38:21Z")
> [@Eonwe](#): > > 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. The way it’s worded implies that the Supreme Court are the ones saying the law was unconstitutional. I apologize to OP if I misread their meaning. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [June 24, 2024, 10:34am UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/5 "2024-06-24T10:34:39Z")
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. ---
**Author:** ![DeadTreasSecretaries](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/deadtreassecretaries/32/4817_2.png) [@DeadTreasSecretaries](https://boards.straightdope.com/u/DeadTreasSecretaries)\ **Post date:** [June 24, 2024, 11:43am UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/6 "2024-06-24T11:43:14Z")
Sorry for the confusion, @Eonwe read it the way I intended to get it across. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [June 24, 2024, 11:49am UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/7 "2024-06-24T11:49:09Z")
> [@LSLGuy](#): > > 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? ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [June 24, 2024, 11:49am UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/8 "2024-06-24T11:49:11Z")
It’s all a tangled mat of nonsense constructed to justify bad decisions made in the past. ---
**Author:** ![Eonwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eonwe/32/240_2.png) [@Eonwe](https://boards.straightdope.com/u/Eonwe)\ **Post date:** [June 24, 2024, 12:33pm UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/9 "2024-06-24T12:33:21Z")
> [@Smapti](#): > > I apologize to OP if I misread their meaning. (My response had some unintended snark… apologies for that). ---
**Author:** ![Ulysses](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ulysses/32/16083_2.png) [@Ulysses](https://boards.straightdope.com/u/Ulysses)\ **Post date:** [June 24, 2024, 12:36pm UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/10 "2024-06-24T12:36:45Z")
> [@TriPolar](#): > > It’s all a tangled mat of nonsense constructed to justify bad decisions made in the past. 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](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. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [June 24, 2024, 2:10pm UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/11 "2024-06-24T14:10:23Z")
> [@RitterSport](#): > > > [@LSLGuy](#): > > > > 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? 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. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 24, 2024, 2:23pm UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/12 "2024-06-24T14:23:59Z")
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. I rest my case. 😉 ---
**Author:** ![DeadTreasSecretaries](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/deadtreassecretaries/32/4817_2.png) [@DeadTreasSecretaries](https://boards.straightdope.com/u/DeadTreasSecretaries)\ **Post date:** [June 24, 2024, 6:31pm UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/13 "2024-06-24T18:31:29Z")
> [@Stratocaster](#): > > 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? 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. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 24, 2024, 7:23pm UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/14 "2024-06-24T19:23:26Z")
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. ---
**Author:** ![Nightaudit](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nightaudit/32/17181_2.png) [@Nightaudit](https://boards.straightdope.com/u/Nightaudit)\ **Post date:** [July 7, 2024, 12:42am UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/15 "2024-07-07T00:42:21Z")
Alito wouldn’t have been able get on the court back in the 1820s… being Catholic and Italian… ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [July 7, 2024, 1:02am UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/16 "2024-07-07T01:02:06Z")
I’m sure he could find a sentence fragment somewhere near the back of Malleus Maleficarum to cite as unbreakable precedent. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [July 7, 2024, 2:16am UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/17 "2024-07-07T02:16:33Z")
Please, no fighting my brilliant hypothetical. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [May 8, 2026, 7:03pm UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/18 "2026-05-08T19:03:42Z")
Bumped, and I wouldn’t dream of it! This scathing article from Above the Law touches on the issue raised by the OP: > **[John Roberts Dismayed Public Sees Supreme Court As 'Political Actors' Just...](https://abovethelaw.com/2026/05/john-roberts-dismayed-public-sees-supreme-court-as-political-actors-just-because-theyre-political-actors/?utm_campaign=Above%20the%20Law%20Daily&utm_medium=email&_hsenc=p2ANqtz-9T-Ag4hhdBZJnKj3li7EgY1ecaJ5HCA3xcngTn7_tLCCnsdHm3k0wwlEmWM-rXIQUtBiFya5a6hX3AJVMX9W2Bt12pKQbQsdlFJu7jXet4jJZvzTs&_hsmi=417856199&utm_content=417856199&utm_source=hs_email)** > > How dare you think that rewriting election laws and granting the president absolute immunity makes the Supreme Court political! ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [May 8, 2026, 7:17pm UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/19 "2026-05-08T19:17:19Z")
Excellent article. ---
**Author:** ![Aspenglow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aspenglow/32/76_2.png) [@Aspenglow](https://boards.straightdope.com/u/Aspenglow)\ **Post date:** [May 8, 2026, 7:30pm UTC](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253/20 "2026-05-08T19:30:09Z")
Agreed, it’s an excellent article. Courageous, too. Thanks for sharing it. [Next page](https://boards.straightdope.com/t/according-to-justice-roberts-nearly-everyone-besides-him-misunderstands-the-tradition-and-history-precedent/1003253.md?page=2)