Rahimi and Liquidation
In its Bruen decision, the US Supreme Court held that a modern gun regulation must be relevantly similar to a historical analogue to satisfy the requirements of the Second Amendment. In doing so, the court elevated a particular tool of constitutional interpretation known as liquidation to primacy, or even exclusion, over all other methods.
In Federalist 37, James Madison explained the idea of interpreting the law through liquidation:
All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.
Essentially, when a constitutional provision is vague or ambiguous, we can look to how people have actually put it into practice in the past to guide how we understand its intended meaning. Thus, the nature and scope of historical laws bear on the interpretation of whether laws are constitutional today. And so, Bruen requires courts to examine how the Second Amendment has been liquidated through historical gun laws to determine whether a modern gun law is consistent with that historical practice.
But a major methodological question left unresolved by Bruen was what amount and period of history is relevant for liquidation of the Second Amendment. As I conceptualize it, there are two distinct approaches to liquidation. On the one hand, the particular ways that those who actually ratified the constitution put it into practice could tell us something about what they thought it meant. I’ll call this theory originalist liquidation, because it seeks to elucidate the original meaning of the constitution to the people that adopted it. For originalist liquidation, only the period encompassing the lifespan of those who adopted the constitutional provision in question should be relevant. Liquidation by subsequent generations would be irrelevant to original meaning.
Alternatively, we might suppose that a consistent course of practice over a sustained period of time establishes an interpretation endorsed by long tradition. This approach wouldn’t look to any specific period of history. Rather, it would focus on how sustained and widespread a particular liquidation was. Liquidation by tradition can’t really be considered originalist because it isn’t concerned with the original meaning. On the contrary, the conduct of generations far removed from the founding generation would be relevant to constitutional meaning.
The court’s gun decisions since the Heller revolution have not specified whether liquidation should focus specifically on the late eighteenth century, the time right after adoption of the Second Amendment,1 or the whole course of US history. Those decisions took pains to survey a wide swath of American history, but in a fashion that seemed distinctly weighted in favor of the immediate post-founding era. In Bruen, for example, the court struck down a New York law that had been on the books for a century, principally because it didn’t match anything at the founding.
But in its decision last week in Rahimi v. United States, the court did not bother to go through the motions of canvassing the breadth of history. Instead, the existence of founding era historical analogies, in the form of surety and public affray laws, sufficed to demonstrate that the prohibition in 18 USC 922(g)(8) on the possession of firearms by persons subject to domestic violence restraining orders is constitutional. Nor did the lone dissenter, Justice Thomas, look beyond the founding era.
And so, while the Rahimi majority vigorously asserted it wasn’t freezing the law in amber, in practice, the horizon of permissible gun regulations is indeed constrained by the laws of 1790. And as I have already argued, what I’m calling “originalist” liquidation is in truth also an abandonment of originalism in favor of a particularly narrow form of tradition. Rather than reason from first principles and historical context what the constitution actually means, the court instead directs us to mechanically ape the founding generation.
And, as I have also argued, exclusive reliance on this type of extremely narrow liquidation is logically incoherent. As Justice Barret noted in her concurrence, “it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a ‘use it or lose it’ view of legislative authority. “ Justice Jackson, also concurring, piled on:
[Bruen’s] premise is questionable because, given the breadth of some of the Constitution’s provisions, it is likely that the Founders understood that new solutions would be needed over time, even for traditional problems, and that the principles they were adopting would allow for such flexibility … It stifles both helpful innovation and democratic engagement to read the Constitution to prevent advancement in this way.
The majority assures us this is not a problem, because modern laws need only be “relevantly similar” and not a “historical “twin.” And yet it also tells us that a law regulating firearms “to an extent beyond what was done at the founding” may not be consistent with the Second Amendment. As I interpret that tension, the court is falling back on its ability to adjust the level of analytical abstraction, a feature of the history and tradition approach I discussed last time, to achieve the “right” outcome.
In Rahimi, the facts were so terrible and the gun regulation so common sense that the court upheld it even though, as Justice Thomas observed in dissent, there was no founding era liquidation to support it. The court simply moved out a level of abstraction to hold that founding era gun laws generally allowed disarmament of individuals who posed a credible threat. And in the next case, the court may tighten the inquiry back down to invalidate a gun law they don’t approve of because it lacks a close historical analogue. Rahimi is likely a ticket good for only one ride.
I set aside for purposes of this discussion the controversy over whether the relevant era is the 1790s or the 1860s, a question on which the court again punted in Rahimi.