Rahimi as Principled Development of Doctrine

A Classical Turn for the Second Amendment

In a surprising turn, the classical legal language of constitutional principles and the development of doctrine is back with a vengeance. In United States v. Rahimi, the Chief Justice, writing for the Court, rejected a Second Amendment challenge to a federal statute that prohibits individuals subject to a domestic violence restraining order from possessing a firearm. “When an individual has been found by a court to pose a credible threat to the physical safety of another,” the Court held, “that individual may be temporarily disarmed consistent with the Second Amendment.”

Although there were a legion of concurrences, the concurring Justices also joined the majority opinion in full; only Justice Thomas dissented. Justice Thomas was the author of the Bruen decision two years ago, which announced an approach to the Second Amendment looking to the history and tradition of gun regulation and relevant analogues, taken at a low level of generality. That fact that Thomas dissented, and dissented alone, suggests strongly that something important has changed.

What has changed is that the Court, speaking through the majority opinion, has decided to approach the Second Amendment through an essentially classical lens. In a crucial methodological passage, the Chief Justice wrote that the proper inquiry is not a search for narrow historical analogues to founding-era regulation, but rather an attempt to discern “the principles that underpin our regulatory tradition…. Discerning and developing the law in this way is a commonplace task for any lawyer or judge.” (Internal quotations omitted; emphasis added). As though to emphasize the point, the Chief then repeated that “the law must comport with the principles underlying the Second Amendment, but it need not be a dead ringer or a historical twin” of traditional practices of gun regulation (internal quotation omitted; emphasis added). The relevant law is not to be understood as “trapped in amber.”

To be sure, the majority opinion claimed that its approach was consistent with the methodology of Bruen. But this was rather obviously a façon de parler, a standard and rather thin claim of methodological compatibility with a recent and important precedent. A concurrence by Justice Sotomayor, joined by Justice Kagan, underscored with approval that the Court, by invoking the language of constitutional “principles,” had substantially reinterpreted Bruen’s methodology. Thomas’ dissent, in pointed and revealing contrast both to the majority opinion and the Sotomayor concurrence, warned of “the dangers of approaches based on generalized principles” and cautioned the Court to “remain wary of any theory” that exchanges “the Second Amendment’s boundary line … for vague (and dubious) principles” (emphasis added). Although Thomas wisely did not directly and openly charge the majority with having abandoned the basic approach of Bruen - to do so would merely underscore his methodological defeat — it is not hard to read him as having said so implicitly, and with good reason. Any claim that the majority’s opinion is genuinely faithful to Bruen must argue, awkwardly, that Justice Thomas misunderstood or misapplied the methods of his own opinion, issued two years ago.

So too, Justice Gorsuch’s concurrence unmistakably took issue with the majority’s methodology, warning that if judges are allowed to “extrapolate their own broad new principles from [the] sources … no one can have any idea how they might rule” (emphasis added). He added, quoting the majority with some asperity, that “[a]s judges charged with respecting the people’s directions in the Constitution— directions that are ‘trapped in amber’ —our only lawful role is to apply them in the cases that come before us.” The opinions of the Justices whom one might call Originalists of the Strict Observance are palpably suffused with worry about the new methodological turn to constitutional principles, although to be sure that worry is prudently expressed.

To understand the intrinsically classical method of the majority opinion, quite different than Thomas’ approach, it helps to look back at the critiques of Bruen, and of Thomas’ narrow version of the history and tradition test, that have been offered by classical lawyers. With specific reference to Bruen, classical lawyers point to “the problem of originalist reliance on history only at specifically favored moments in time, rather than incorporating a broader understanding of the tradition in which they are embedded.” A broader understanding of this sort, for the classical lawyer, takes account of the enduring rational principles underlying the tradition and applies them to new circumstances, while preserving their shape and essence, as argued here, here and here.

In very much the same register, the Chief Justice offers an approach centered on what he calls, significantly, a “develop[ment] of the law,” rooted in the “principles” of the tradition rather than merely in specific historical data points, and aimed at “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” If this is still some version of originalism, it is an originalism so purposivist, so capacious, so open to reasoning from high-level principles, as to be operationally indistinguishable from non-originalism.

The aim of the development of the law, for the majority, is to preserve the essence of constitutional principles while applying them under changed conditions — the very enterprise that John Henry Newman urged in the parallel context of the development of theological doctrine, and that classical lawyers urge as itself the traditional approach to law over time. The classical approach holds that principles are enduring, but that as circumstances change, doctrine must itself “change in order to remain the same” - as Newman famously put it. As such, the classical approach offers a third way between two poles: one the one hand, Thomas’ strict data-point version of history and tradition, with analogues allowed only at low levels of generality; and on the other hand free-form “living constitutionalism,” in which the principles immanent in the tradition can themselves be re-evaluated, changed or even discarded over time.

Put differently, originalism has always proffered a false alternative: either the judge sticks closely to historical data points, or else the judge is utterly untethered, free to apply the judge’s own “preferences” or “policy views” or “values.” This false alternative (unfortunately much on display in the originalist mini-essays, labeled as concurrences, by Justices Gorsuch and Kavanaugh) overlooks that there is a third path: the elaboration and development of rational principles underlying the constitutional tradition, principles that are external to the judge because they are immanent in the tradition itself, and are thus not reducible to the judge’s own “preferences,” but that are also intelligible to legal reason and identified by irreducible legal judgment. It is heartening, if surprising, to see this distinctly classical approach reappear at the Supreme Court.