The Push and Pull of History and Progress
Nearly 250 years after its founding, the American political system still remains deeply tied to its origins and history. All areas of government are bound to the values outlined in the founding documents — liberty, equality, and justice. In our government, there is no greater stage for the historical interpretation and context of these values than the Supreme Court. It is in the Supreme Court that the most fundamental questions of constitutional interpretation and the balances of liberty and regulation are decided. As a result, it is imperative that historical contextualization and precedent play a role in these decisions, but history should not be the only factor in constitutional interpretation. Similarly, understanding our past is immensely important in understanding identity and the factors that shape our present day, but the goal of our political systems should not be to remain in the past. In recent years, with the growth of a hyper-conservative Supreme Court, the Court has shown its interest is not to use history as a tool for progress, but rather, to remain stuck in the past.
Used properly, an understanding of American history and the framers should serve as an inspiration point for reform and change. Yet, the Roberts Court instead seems hyper-fixated on historical ties to the Framers as a way to revert away from justice and progress. Furthermore, it neglects to understand the political theory and intent behind the American Experiment. The American Constitution was boldly progressive, innovative, and experimental in creating a system that was intended to evolve with a changing world and a changing nation.
Today, the Roberts Court has time and again used historical contextualization as a tool for stagnation rather than progress. It has been making waves with major decisions such as Dobbs v. Jackson and Students for Fair Admissions Inc. v. Presidents and Fellows of Harvard College both of which sought to strike down important precedents in order to set the country back rather than move it forward. Looking at where the Court is headed next, this tension between history and progress on the Supreme Court’s stage will be embodied in the case United States v. Rahimi. The Supreme Court decided to hear the Rahimi case this June, setting the stage for heated debate surrounding the interpretation of the Second Amendment.
The Rahimi case is being brought to the Supreme Court by the appeal of President Biden after the U.S. Court of Appeals vacated Zackey Rahimi’s conviction. Zackey Rahimi had been convicted after violating a protective order against him due to assaulting his girlfriend that explicitly stated he could not possess a firearm. Rahimi then proceeded to be involved in multiple shootings, one of which included the use of an AR-15. Despite this, the U.S. Court of Appeals Fifth Circuit determined Rahimi was not in the wrong due to a new evaluation of the Second Amendment regulation set forth by the Supreme Court Case New York State Rifle Association v. Bruen. Under this precedent, the Trump-appointed federal judge determined that since at the time of the founding there was no historical regulation of firearms based on domestic violence, there should have been no regulation for Rahimi either.
This ruling to a general person seems almost laughable. It can be expected that there wouldn’t have been domestic-violence-based firearm regulation in the 18th and 19th centuries, at that time married women — and women in general — were unable to hold property, vote, or have much say in their own marriages. Domestic violence and marriage were interpreted in an entirely different way than they are today. Furthermore, the types of firearms in use at that time were vastly different than the ones we see today — domestic violence likely would not have even been a consideration for the use of a musket. Yet, as a result of the Bruen ruling, judges are allowed to pick and choose what “history and text” they use to make their rulings.
New York State Rifle Association v. Bruen was decided in June 2022 and fundamentally shifted the approach to Second Amendment interpretation. The case was decided 6-3 with the conservative majority voting in favor and the three liberal justices in dissent. The Court ruled against the state of New York’s ability to regulate public concealed carry permits. In doing so, the Court also upended hundreds of years of history and precedent — a trend the Roberts Court has proven itself comfortable with — ironically in the name of recentering a historical lens. In his dissenting opinion, Justice Stephen Breyer stated, “Only by ignoring an abundance of historical evidence supporting regulations restricting the public carriage of firearms can the Court conclude that New York’s law is not ‘consistent with the Nation’s historical tradition of firearm regulation.’”
Justice Clarence Thomas and the conservative majority in this decision threw out the previous approach to Second Amendment regulations which involved a two-step test. Step one involves looking at the plain text and evaluating the scope and step two involves judicial scrutiny, or a Means-End Scrutiny test. This metric leaves room for logical evaluation of whether the result of the law is enough to justify the burden being placed upon the constitutional right, i.e. if the end justifies the means. In Bruen, Justice Thomas argued that “Despite the popularity of this two-step approach, it is one step too many.”
Justice Thomas’s new approach states, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a Court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
The history and text approach to interpreting the constitutionality of laws is flawed in many regards. It is ambiguous both in theory and in practice. Logically, one should understand that history is intended as a tool for contextualization, not a blueprint for the way laws should remain. The Means-End Scrutiny test allows room for progress and modernization of laws while still ensuring the law is not placing an undue burden on the rights of the citizen. It is a test that judges understand and is easy to apply somewhat objectively across the board. In contrast, Thomas’s history and text approach seeks to ensure that constitutional law not only remains stagnant but also goes backward in time to align with tradition centuries ago.
In his dissent, Breyer opposed the theory behind Thomas’s approach, stating, “the Court wrongly limits its analysis to focus nearly exclusively on history. It refuses to consider the government interests that justify a challenged gun regulation, regardless of how compelling those interests may be.” Breyer also indicated the major issues with the metric in practice in that the Court determined, “judges will simply have to employ “analogical reasoning.” But, as I explained above, the Court does not provide clear guidance on how to apply such reasoning. Even seemingly straightforward historical restrictions on firearm use may prove surprisingly difficult to apply to modern circumstances.”
The deep connections between history and politics have immense value in understanding the context of our present day. Ultimately, the rights, wrongs, and gray areas of history should serve to inspire individuals to seek progress, reform our current systems, and make changes that more adequately reflect the values of justice, liberty, and equality. It is crucial to know where you have been to properly understand where you are headed, but even more crucial is to be moving forward at all. Clarence Thomas and his legal approach in Bruen do not seek progress and justice. Instead, it is a dangerous endeavor to remain stagnant in the 18th century which threatens the safety and needs of the American people. We need a system that is willing to evolve and progress with the social, technological, and political changes of the present day, trusting that the values of both justice and liberty will not only transcend these progresses but be amplified.
This year, the Rahimi case will serve as a crucible for this tension. We will watch to see if any justices from the conservative majority finally draw a line. In particular, Justice John Roberts and Justice Brett Kavanaugh have a crucial opportunity in front of them to stand up to Thomas’s flawed legal theory and instead stand for the safety of the American people. In Justice Kavanaugh’s concurring opinion, he modified Thomas’s opinion by adding that, “properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.” This could be an indication that Kavanaugh may see the error in allowing domestic abusers and individuals with protective orders a free reign of gun use. We can only hope that Justice Kavanaugh and Justice Roberts, and perhaps any others, will have the courage to stand for what is right.