Another review of the jurisprudential mess of the Second Amendment … and originalism’s deep challenge

Adam Liptak’s latest Sidebar column in the New York Times, headlined “Supreme Court’s Gun Rulings Leave Baffled Judges Asking for Help,” is focused on the mess that is Second Amendment jurisprudence.  I recommend the piece in full, and here are excerpts: 

Federal appeals courts were busy this summer trying to make sense of the Supreme Court’s recent Second Amendment decisions. It has not gone well.  In 2022, Justice Clarence Thomas introduced a new test to assess the constitutionality of laws meant to address gun violence.  Such laws must be struck down, he wrote, unless they are “consistent with the nation’s historical tradition of firearm regulation.”

Last month, Chief Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Va., writing for six judges, said that approach had created “a labyrinth for lower courts, including our own, with only the one-dimensional history-and-tradition test as a compass.”  He added: “Courts, tasked with sifting through the sands of time, are asking for help.”….

In June, in United States v. Rahimi, the Supreme Court upheld a federal law that made it a crime for people subject to domestic violence restraining orders to have guns.  In his majority opinion, Chief Justice John G. Roberts Jr. looked to history in very general terms and said lower courts bore the blame for the confusing state of the law.  “Some courts have misunderstood the methodology of our recent Second Amendment cases,” the chief justice wrote. “These precedents were not meant to suggest a law trapped in amber.”

Chief Judge Diaz was not convinced. The Rahimi decision, he wrote, “offered little instruction or clarity.”… Judge Pamela Harris of the Fourth Circuit, speaking at a conference on Saturday at William & Mary Law School, said appeals court judges faced a perplexing task.  “The trick is that we all need to go back in time and become historians,” she said. “And short of that, I find this to be very, very challenging.”

She gave an example. “I just got two briefs,” she said. “One brief says, ‘This happened in history.’ The other says, ‘No, it didn’t.’”

“What do I do?” she asked.

I noted in this post a few days ago that the three federal circuit courts which have weighed in on what Rahami and the Second Amendment means for federal felon-in-possession law have reached three different conclusions using, in essence, three different interpretive methodologies.  And this comes after the Supreme Court has had three major opinions embracing an originalist approach to the Second Amendment (Heller, Bruen and Rahimi), with the latter two seemingly serving as a bold statement that lower courts could not properly understanding and apply the Supreme Court’s prior originalist rulings.

I do no want to go too far in suggesting that modern Second Amendment developments show that the originalist jurisprudential emperors wear no clothes.  But I do think the problems is these gun cases reflect the unavoidable difficulties in turning the wholesale concepts of originalism into detailed retail rules for precises case-by-case application and adjudication.  And these problems seem especially acute in various criminal justice settings where there are literally thousands of factual and legal variations being litigated in federal and state courts nationwide all the time.  (And that’s why, as I have discussed here and here, I suspect some of the current conservative Justices may be fearful about where their originalist inclinations could take them in the constitutitional criminal procedure cases that used to be a mainstay of the SCOTUS docket.)