Text, History, and Tradition

History – as they say – is written by the victors. Two years ago, the Supreme Court upended the analytical framework for determining whether a particular gun regulation violates the Second Amendment. In New York State Rifle and Pistol Association, Inc. v. Bruen, the Court abandoned the long-standing means-end scrutiny method and instead adopted a “history and tradition” framework. This marked a significant change in the way trial and appellate courts all over the country evaluate gun laws. The results have been an absolute mess. And while Bruen was ostensibly limited to firearms regulations, it seems that the history and tradition test is expanding into new areas of constitutional law. But just last Friday the Supreme Court issued its highly anticipated decision in United States v. Rahimi in which the court splintered on what the history and tradition test even means.

Three tiers of scrutiny

In the first year of law school, students spend a significant amount of time in their Con Law class studying about the three “tiers of scrutiny,” aka “means-end scrutiny.” The three tiers are “rational basis,” “intermediate scrutiny,” and “strict scrutiny.” That’s right, “strict scrutiny” isn’t just one of the best legal podcasts in the world, it’s also an analytical framework that courts used to use in evaluating whether a government regulation violated an individual’s fundamental constitutional rights.

Under the strict scrutiny framework, a law that infringes a person’s constitutional right will be struck down by the court unless the government can show that the law is necessary and narrowly tailored to achieve an important governmental interest. As its name suggests, strict scrutiny favors the individual over the government, and the law in question is more likely to be struck down as unconstitutional.

Under intermediate scrutiny, the government must show that the law serves an important government interest and is substantially related to that interest. And under rational basis review, the government need only show that the law is rationally related to a legitimate government interest. But how can you know which tier of scrutiny applies in a given case? Well, to figure that out you’ll need to take several extensive courses in constitutional law.

Bruen 

Two years ago, the Supreme Court was tasked with deciding whether New York’s licensing scheme for carrying a firearm outside of the home violated the Second Amendment. The Supreme Court, in a 6-3 decision written by Justice Thomas, concluded that it did and struck the law down. But in reaching this result, the Court significantly changed the analysis that applies to firearms regulations. While federal appellate courts all over the country had adopted a “two-step” analytical framework which included means-end scrutiny, the Supreme Court concluded that this was “one step too many.”

The Court instead held that a law complies with the Second Amendment only if the government can “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Of course, close readers would quickly discover that the Court actually adopted a new two-step test which requires courts to first decide if a law targets conduct protected by the Second Amendment, and only at the second step do courts consider if there was a historical analogue. But hey, the “one step too many” line still sounded good right?

This new test was met with controversy and confusion. Although Justice Thomas had predicted in Bruen that reliance on history was a more “legitimate” and “administrable” method than asking judges to make “empirical judgments about the costs and benefits of firearms laws,” courts all over America struggled mightily in applying the new test. There has been a huge amount of disagreement about exactly how to interpret America’s historical tradition of firearms regulations and what level of generality should be considered in comparing old laws with new ones. Judges aren’t historians and analyzing history is complicated. But at least this new test was limited to the Second Amendment, or so we thought.

Vidal v. Elster

Fast forward to the Supreme Court’s recent decision two weeks ago in Vidal v. Elster. The result in the case – that the government’s refusal to trademark the phrase “Trump too small” based on the Lanham Act’s prohibition on trademarks containing a living person’s name without their written consent didn’t violate the First Amendment – was not particularly surprising or significant. But what was significant was its reasoning.

Justice Thomas, who wrote the majority opinion in Bruen, also authored the majority opinion in Vidal. And in Vidal, Justice Thomas applied Bruen’s text, history, and tradition framework to a First Amendment case. After an examination of the history and tradition of the Lanham Act, Justice Thomas concluded that “[t]his history and tradition is sufficient to conclude that the names clause . . . is compatible with the First Amendment. We need look no further in this case.” And in so concluding, Justice Thomas held that the Court need not evaluate the case under heightened scrutiny.

Justice Barrett, joined by the three other female justices, gave a notable dissent in which she criticized the expansion of the historical tradition framework beyond the Second Amendment context. Justice Barrett said Justice Thomas’ opinion was wrong “twice over.” Specifically, the majority opinion was wrong because the historical evidence it pointed to did not establish any historical analogue to the Lanham Act’s names clause. And second, Justice Thomas failed to explain why searching for a historical analogue was the correct approach to analyzing a First Amendment case. 

Somewhat strangely in my view, Justice Barrett said in her dissent that “[r]elying exclusively on history and tradition may seem like a way of avoiding judge-made tests. But a rule rendering tradition dispositive is itself a judge-made test.” While I certainly agree with her on that point, I’m not sure it squares with her having joined the majority opinion in Bruen or her concurrence in Rahimi (discussed below). Since “judge-made tests” are supposedly the antithesis of originalism, it’s a little surprising a see a justice admit that history and tradition is just another judge-made test.

It’s also not lost on me that the four female justices on the Supreme Court seem skeptical of evaluating constitutional rights based on America’s history and tradition. They certainly have great reasons to be skeptical of such an approach.

Circuit Court Cases 

Some circuit courts of appeals have started to apply Bruen in contexts beyond the Second Amendment. In a Ninth Circuit decision about income taxes, which coincidentally was just affirmed by the US Supreme Court on Friday, the Ninth Circuit cited to Bruen suggesting that in analyzing the Sixteenth Amendment, which authorized income taxes, courts should look to the historical tradition of the Amendment. Moore v. United States, 53 F.4th 507 (9th Cir. 2022) aff’d, 602 U.S. ___ (2024). In another Ninth Circuit case about San Diego’s policy of chalking the tires of parked cars to catch people who overstay their parking meters, Judge Bumatay invoked Bruen in his dissenting opinion and argued that the history and tradition approach should be used in Fourth Amendment cases. Verdun v. City of San Diego, 51 F.4th 1033 (9th Cir. 2022) (Bumatay, J. dissenting). 

In an Eleventh Circuit case from just two weeks ago involving a little-known constitutional provision that authorizes Congress to “punish felonies on the high seas,” the Court cited Bruen and went on to evaluate the meaning of “high seas” by “turning to the history of maritime sovereignty.” United States v. Alfonso, Op. No. 22-10576 (11th Cir. 2024). Also from the Eleventh Circuit, Judge Newsom wrote a concurrence in a case about a law requiring strip clubs to keep certain records to verify that their performers were at least eighteen years old, where he suggested that Bruen’s text, history, and tradition approach should be applied in First Amendment cases and was very critical of the means-end scrutiny framework of analyzing such cases. Club Madonna, Inc. v. City of Miami Beach, 42 F.4th 1231 (11th Cir. 2022) (Newsom, J. concurring). The Supreme Court’s recent decision in Vidal certainly validates Judge Newsom’s point. 

The First Circuit, for its part, declined an invitation to extend the Bruen historical approach to a Sixth Amendment case involving trial subpoenas in a criminal case. United States v. Crater, 93 F.4th 581 (1st Cir. 2024). 

The opinion we’ve all been waiting for

Last Friday, the Supreme Court released its decision in United States v. Rahimi, one of the most highly anticipated cases of the year. The bottom-line result was totally predictable and not surprising at all – Zackey Rahimi is not allowed to possess firearms. Rahimi’s conduct was so egregious that there was no way he was ever going to win his case. But the Supreme Court’s decision was highly anticipated because of the speculation around what it would do with Bruen’s text, history, and tradition test in order to get to the obviously right and just outcome that it ultimately reached.

Chief Justice Roberts, writing for the 8-1 majority held that in analyzing whether a gun law comports with Bruen’s text, history, and tradition test, a previous law that is a historical twin is not required. Instead, it is sufficient to show a historical analogue. Roberts pointed to two historical laws, surety laws and going armed laws, to conclude that prohibiting persons subject to domestic violence restraining orders from possessing firearms does not violate the Second Amendment. Roberts suggested that there was no problem at all with Bruen’s new framework, but that lower courts have misunderstood and misapplied Bruen. Right. 

Six other justices authored opinions demonstrating that they all have a lot of thoughts about text, history, and tradition. 

Justice Sotomayor, joined by Justice Kagan, concurred with the majority opinion while maintaining that Bruen was wrongly decided and that Second Amendment cases should be analyzed under means-end scrutiny and not under a historical tradition approach.

Justice Gorsuch wrote that he agreed Rahimi should lose but it was because he brought a facial challenge to the statute and failed to show that the statute violated the Second Amendment in all of its applications. Gorsuch seems open to considering an “as applied” challenge to the statute in which a defendant claims not that the statute is unconstitutional in all of its applications, but that it is unconstitutional as applied to him. And although Chief Justice Roberts gave us the now ubiquitous quote that the Second Amendment is not “a law trapped in amber,” Justice Gorsuch insisted that the Constitution is trapped in amber.

Justice Kavanaugh gave a detailed explanation as to how he thinks lower courts should consider “pre-ratification history, post-ratification history, and precedent when analyzing vague constitutional text.” No other justice joined his opinion so it will be interesting to see if any lower courts adopt his framework or cites to it favorably.

Justice Barrett emphasized that history “surrounding the ratification of the text” is most important and that post-ratification history is less important in analyzing questions about the constitutional text. She claimed that “original history,” whatever in the world that means, is “generally dispositive,” which she compared to “original contours history” which she described as history that identifies “the contours of the right.” I’m still trying to figure out how Justice Barrett’s opinions in Vidal and Rahimi can be reconciled with each other.

Justice Jackson pointed out the disaster that Bruen has left in its wake as lower courts have been sending a clear message for the last two years that “there is little method to Bruen’s madness.” And she predicts, correctly I believe, that Second Amendment cases will continue to be a mess going forward after Rahimi because of the extremely difficult job of canvassing America’s history of firearms regulations and trying to analogize historical laws to current ones.

Justice Thomas, the author of Bruen, found himself as the lone dissenter in Rahimi, the first SCOTUS case to apply Bruen’s new test. He suggested that the other conservative justices who abandoned him in Rahimi are wrong about what he said in Bruen. And he’s probably right – they just saw the horrible outcomes that are possible thanks to Bruen and were forced to backtrack but had to pretend like the lower courts, and Justice Thomas himself, did not understand what Bruen said.

Conclusion 

With Rahimi now having um . . . clarified? . . . Bruen’s text, history, and tradition approach and explained that when analyzing the constitutionality of a gun law, a historical twin is not required but a historical analogue will do, I suspect courts will continue to struggle in figuring out how close of an analogue needs to be found. And of course we still face the cherry-picking and rewriting of history and how much emphasis gets placed on pre-enactment or post-enactment history, and how much weight, if any, to give prior judicial decisions.

I’m afraid that the text, history, and tradition approach from Bruen has now gotten messier because the majority of the justices couldn’t stomach the result of Rahimi owning a gun. Only Justice Thomas was willing to stand by the opinion he wrote in Bruen and follow it to its logical conclusion. If the other justices who joined Thomas in Bruen were serious about their new test, they would have joined him in Rahimi too. But even rock-ribbed originalists can’t escape the draw of consequentialism sometimes.

And while the Rahimi/Bruen test now seems even messier and less clear than before, the test is very likely to continue to expand to other areas of constitutional law and one day may stand as a full replacement of means-end scrutiny.

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