The Bogus Legal Theory Driving America’s Gun Violence Crisis
This is part of How Originalism Ate the Law, a Slate series about the legal theory that ruined everything.
By the end of June, the U.S. Supreme Court will issue its decision in United States v. Rahimi, a case in which a man subject to a domestic violence restraining order says he has a constitutional right to keep his gun and that a federal law disarming abusers violates the Second Amendment. The court will also decide Garland v. Cargill, a challenge to a law classifying semiautomatic weapons equipped with bump stocks as machine guns because they enable automatic fire.
Last year, more than 40,000 people were killed by guns in the United States. Gun violence is now the No. 1 killer of children in America, and every month, about 70 American women are murdered by gun-wielding intimate partners. If her abuser has a gun, an abused woman is five times more likely to be killed by him.
Americans support commonsense gun control measures, with more than 80 percent of adults—including 79 percent of gun owners—saying that guns should be removed from people under domestic violence restraining orders. Close to the same percentage of Americans back laws that require gun owners to lock up their weapons. The United States is the only wealthy, functional peacetime state not plagued with gang violence that still has gun violence rates this high. The reason is our shockingly lax gun laws and the number of guns that have been allowed to proliferate as a result.
Why are we stuck with such lax gun safety laws when stricter regulation is so popular? Congress and state legislatures have struggled to do much about these pervasive and deadly problems in large part because of our current Supreme Court—and in particular its past 16 years of radical pro-gun jurisprudence. Since 2008, the court has radically departed from centuries of case law on gun regulations and the Second Amendment, making it astoundingly difficult for lawmakers to implement even the most basic and commonsense of gun laws. The departure had to do with the rapid rise of originalism, the legal theory that claims to interpret the Constitution according to its “public meaning” at the time of ratification. When it comes to guns, this effort stems largely from a 2008 case that has proved to be the original sin of originalist constitutional theory: District of Columbia v. Heller.
Heller centered on a (frankly poorly written) D.C. law regulating handgun ownership that functionally made it difficult for private individuals in the District to own handguns. A police officer, who wanted a handgun both on the job and at home, sued. And for the first time, the conservatives of the Supreme Court discovered an individual right to bear arms within the Second Amendment of the U.S. Constitution—and had the gall to call this a return to the founders’ intent.
Claiming that there is a singular, discoverable intent or meaning that can be derived from the founders’ words is bizarre. If you have ever followed the passage of a law through a statehouse or Congress, you have seen that many different people have many different ways of understanding and interpreting the very words they are putting into legal effect; if you have ever read the Federalist Papers or even recall much of your high school American history class, you may remember that there was robust conflict and compromise over the Constitution, including serious disagreement as to what various words and ideas might actually mean. Scholars still argue over the meaning of the Ten Commandments, which are ostensibly the word of God himself. Historical political leaders, just like present ones, were not a unified bloc in full agreement over the limitations and entire meanings of the laws they were passing. They were human beings using the English language, with all of its limitations. The founders were also keenly aware that they were setting forth rights that would govern not just in their today but, they hoped, in a faraway tomorrow, and that they would need to be interpreted in an ever-changing country.
All of this undercuts the justification for originalism itself, as does the work of the actual judges who implement it. Much has been written about the utter historical illiteracy of originalist federal judges, who uniformly cherry-pick convenient bits and pieces of the past while simply disregarding the parts of the historical record they dislike. The real scam—other than the theory itself—is the way in which conservative activists have convinced much of the public that originalism is a careful, buttoned-up theory that vows fealty to the Constitution.
Heller remains perhaps the most influential originalist decision of all time, penned by the late Supreme Court Justice Antonin Scalia. To take a step back, the Second Amendment itself reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” As historian and author Joshua Zeitz wrote in Politico, historians are clear that “in the 18th century, when Congress passed and the states ratified the amendment … the right to bear arms was inextricably connected to the citizen’s obligation to serve in a militia and to protect the community from enemies domestic and foreign.” Rights that were more individualized—to speak freely, to practice one’s religion without state interference—were separated out and included no note of reciprocal community obligations. James Madison himself, Zeitz writes, “twice introduced state legislation in Virginia that would impose penalties on any individual who ‘bear[s] a gun out of his inclosed ground, unless whilst performing military duty.’ ” In other words, the guy who wrote the Constitution didn’t think it proscribed infringing upon an individual right to bear arms.
It is only through an intentional ignorance of this history that one might hold, as Scalia did in Heller, that the Second Amendment “guarantee[s] an individual right to possess and carry weapons in case of confrontation.”
“I think the best way of thinking about Heller is it’s a classic pincer movement, where you have a well-coordinated effort among what I affectionately call the originalism-industrial complex, which includes the Federalist Society and libertarian and right-wing think tanks like Heritage and AEI and Hoover, and then a very popular grassroots movement for gun rights,” Fordham University professor and legal historian Saul Cornell said. “Together, the combination of having this super well-funded, super-organized group of lawyers and activists is one part of the foundation for how you can have a decision like Heller.”
Lawyers, Cornell said, often work backward, looking for historical evidence to bolster one claim or another, rather than starting with the historical record itself. Originalists, he said, “have no historical rigor, very few of them have any serious training in history, and they really do seem to think, The Constitution is written in English, I’m a lawyer, and then we’re off to the races.” By the mid-2000s, judges like Scalia and other conservative originalists saw their cause bolstered by a well-funded effort to inject a new individual-right interpretation of the Second Amendment into various law reviews. Many of these articles were written by the same small number of pro-gun academics, many of the law reviews they appeared in were not particularly prestigious, and none were peer-reviewed. But once an idea is in the law review ecosystem, Cornell said, it starts to matter because “you can cite it” and it looks legitimate. Toward the tail end of the 20th century, the National Rifle Association was also pushing aggressively into American politics, and gun rights had become an ascendant issue in many conservative think tanks, often thanks to funding from the NRA. Within the network of right-wing advocacy organizations, think tanks, politicians, and legal training grounds, a novel and radical theory was taking hold that gun rights should be virtually unrestricted.
For all that Heller did to rewrite the modern interpretation of the Second Amendment, Scalia’s opinion still didn’t go quite far enough for the most aggressive gun rights activists. It did not, for example, offer a clear path for courts to evaluate (and strike down) other gun laws. So lower courts implemented a test for those new laws, looking at what legislatures intended with any particular gun law and whether the burdens that that law imposed were out of proportion to the important public safety interests at hand. But this, an even more conservative Supreme Court said in 2022’s New York Rifle and Pistol Association v. Bruen, was wrong; instead, the court held that “to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.” In addition to establishing this new, almost-impossible-to-meet standard, the Bruen case struck down the New York law, which was from 1911. A 111-year-old law was, apparently, not itself evidence of the nation’s historical tradition of firearm regulation. (The court didn’t bother to tell us what time frame does count, except that everything after 1900 is irrelevant.)
And so this is where we are: Any efforts to regulate 21st-century weapons in 21st-century America must have very old historical equivalences: “A distinctly similar historical regulation” is evidence that a gun law may be constitutional. But “if earlier generations addressed the societal problem, but did so through materially different means,” that might be evidence that new gun regulations are not in fact constitutional. This is crazy-making and stymies any effort to create better laws to address long-standing problems, such as the proliferation of semiautomatic weapons that kill so many Americans each year. The court seems to be saying that the apocryphal Einstein adage about the definition of insanity—doing the same thing over and over and expecting different results—is apparently now the only legitimate way to regulate guns in the U.S.
The other problem with this hardcore originalist interpretation? It confines much of lawmaking to an era in which most Americans had no say in the political process and forecloses upon commonsense and popular legislation, threatening public trust in the Supreme Court. These problems, among many others, are particularly apparent in Rahimi, involving gun rights for accused domestic abusers found dangerous enough to merit a restraining order. At the time the Constitution was ratified, women couldn’t vote, let alone petition the courts for a domestic violence restraining order. As far as anyone can tell—and Supreme Court litigators have certainly looked—there were no laws in 18th- or 19th-century America stripping gun ownership rights from accused domestic abusers, in part because wife-beating was not generally considered a serious crime. “Under Bruen’s originalist test, Rahimi should be an easy case,” Nelson Lund, a professor at George Mason University’s Antonin Scalia Law School, wrote in the New York Times. “The government has not informed the Supreme Court of a single pre-20th-century law that punished American citizens, even those who had been convicted of a violent crime, for possessing a gun in their own homes. Not one.”
Back then, the government did disarm people it deemed dangerous, including tax protesters and Quakers. Abusing your wife, child, or another member of your household, though, was not exactly a hotly contested act. It was sometimes frowned upon but often allowed.
Holding that people under domestic abuse restraining orders can still possess guns would be wildly unpopular. It could reveal this Supreme Court, and originalism itself, to be unserious, vacuous, and ill-suited for the task of interpreting legal meaning and determining the laws that apply nationwide today.
Luckily for the conservatives of this court, they have already determined that originalism can be fudged. Just look at Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and ended the era of legal abortion nationwide. At the time of the country’s founding and under English common law, abortion was, in fact, generally permitted until “quickening,” or when a pregnant woman felt her fetus move—which tends to be somewhere between 15 and 20 weeks of pregnancy. States did not begin to ban abortion until 1828. And yet, in Dobbs, the majority opinion held “that the right to abortion is not deeply rooted in the Nation’s history and tradition.”
Many court watchers expect to see similar originalist gymnastics in Rahimi. The thing about cherry-picking historical data points, after all, is that in a vast country with 50 states and several centuries of legislating and lawmaking, a highly motivated and historically untrained judge can find a lot to rely on to support just about whatever conclusion they would like to draw. But a reasonable outcome in Rahimi—the court’s determining, for example, that “dangerousness” has enough historical precedent to be a legitimate basis for regulating an individual’s right to have a gun—does not mean rejecting originalism. It’s just further evidence of its convenient malleability.
“This court is not going to give up the new religion,” Cornell, the legal historian, said. “Originalism is not a theory. It’s an ideology. And there are no historians who are originalists, which should tell you something.”
