Last Friday, the Supreme Court confirmed what common sense suggests should be true: In United States v. Rahimi, the court ruled 8-1 that a federal law restricting domestic violence offenders subject to restraining orders from possessing guns does not violate the Second Amendment. This was never in doubt until two years ago, when the court declared in New York State Rifle & Pistol Association v. Bruen that gun laws are presumptively unconstitutional unless they are “consistent with this Nation’s historical tradition of firearm regulation.” So, the theory went, the government cannot disarm domestic abusers in the present because it did not disarm domestic abusers in the past.
The notion that today’s government is powerless against domestic gun violence because it wasn’t a concern of men who did not even recognize women as equal citizens is preposterous on its face. But it is an obvious implication of Bruen and its full-throated endorsement of originalism — the idea that the meaning of the Constitution is fixed at the moment of ratification and the purported original public meaning remains binding today.
The Rahimi majority went on a wild-goose chase through history.
Throughout the Rahimi majority opinion and several concurring opinions, the conservative justices who had been part of the Bruen majority struggled to reconcile their stated adherence to originalism with their desire to (just this once) avoid its predictably disastrous consequences. Only the author of the Bruen opinion, Justice Clarence Thomas, dissented in Rahimi, essentially confirming that a committed originalist reading of the Constitution compels rearming a domestic abuser whose penchant for shooting at people rivals Yosemite Sam’s. Rahimi is a reminder that it isn’t enough for the court to walk away from originalism: It should run.
As Thomas explained in Bruen, modern gun regulations are now unconstitutional unless founding-era laws imposed comparable burdens on the Second Amendment right for comparable reasons. In trying to square this circle, the Rahimi majority went on a wild-goose chase through history. To support the claim that firearm regulations have long barred “people from misusing weapons to harm or menace others,” the court name-checked the Statute of Northampton of 1328 — an English law restricting public carry of weapons that was passed decades before the first recorded use of firearms in Europe. To prove that laws could aim to prevent individuals from committing gun violence, the court focused on a 1795 Massachusetts law that required potentially dangerous people to post a bond and promise to behave themselves. And to show that laws could punish gun violence, the court pointed to 18th-century laws that made “riding or going armed, with dangerous or unusual weapons, to terrify the good people of the land” a crime punishable by forfeiture of the weapons and jail time. This originalist combo platter is the best thing that eight of the country’s most elite lawyers could serve up as legal analysis.
Thomas found the majority’s evidence unconvincing, describing the laws relied on by the other justices as “worlds — not degrees — apart” from the modern law in question. “Not a single historical regulation justifies the statute at issue,” he wrote. Thomas further protested that “this Court’s directive was clear” after Bruen, which is about as close as judges get to saying, “did I stutter?”
But as I write in my new book “The Originalism Trap,” this is what legal interpretation looks like under originalism: A mishmash of state laws that are at most superficially similar is apparently all that can legitimately determine whether a federal statute disarming domestic abusers survives a constitutional challenge, and as such, whether women survive. Rahimi is clearly the Supreme Court’s attempt to rescue originalism by seemingly expanding the pool of historical laws that count as relevantly similar. Yet originalism is not worth saving. This time, women got a little lucky — or at least as lucky as women can be under a rightwing juristocracy. Even if one were to believe a single original public meaning of the Constitution actually existed, and even if one were to put stock in the justices’ moonlighting as historians, the touchstone of constitutional interpretation should not be a point in time. Justice Sonia Sotomayor observed as much in her concurrence in Rahimi, joined by Justice Elena Kagan — both of whom dissented in Bruen. “A rigid adherence to history,” Sotomayor wrote, “particularly history predating the inclusion of women and people of color as full members of the polity, impoverishes constitutional interpretation and hamstrings our democracy.” This time, women got a little lucky — or at least as lucky as women can be under a right-wing juristocracy. The conservative justices retreated from originalism somewhat in Rahimi because it allowed them to avoid a policy outcome and public response that it deemed too undesirable. But originalism is the preferred interpretive method of the high court’s reactionaries, precisely because it necessarily infuses the law with the biases and bigotries of the past. And rejecting originalism is a necessary part of building an inclusive, egalitarian future.
Madiba K. Dennie
Madiba K. Dennie is the author of "The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take it Back." She is the deputy editor and senior contributor at the legal commentary outlet Balls and Strikes. 
