Rethinking the History & Tradition Approach

In a landmark 8-1 decision, the United States Supreme Court ruled in United States v. Rahimi that the federal government has the authority to disarm individuals deemed by courts to be credible threats to their partners or children, consistent with the Second Amendment. This ruling marks a significant shift from the Court’s previous stance in New York State Rifle & Pistol Association v. Bruen (2022), which had established a stringent history and tradition test for evaluating gun regulations that undermined key tenets of the rule of law – clarity, consistency, and predictability. The Rahimi decision reveals a more nuanced approach to applying historical precedent in constitutional interpretation, by tacitly acknowledging that while history informs constitutional inquiry, too rigid adherence thereto can stymie construction. Nonetheless, it continues to raise critical questions about the efficacy and appropriateness of relying solely on historical analogues in modern jurisprudence. In particular, the history and tradition approach, while presenting an appearance of objectivity, fails to provide a reliable framework for addressing contemporary legal challenges and opens avenues for democratic backsliding by perpetuating inequalities.

The Bruen Decision and Its Aftermath

In 2022, the Court in Bruen held that any law restricting firearms must demonstrably align with America’s longstanding historical tradition of firearm regulation. It required the government to conclusively prove that its regulation was rooted in historical tradition, which, according to the Bruen court, is the sole interpretive guide to delineate the boundaries within which the ‘right to keep and bear arms’ operates. Bruen explicitly rejected a means-end balancing approach (strict or intermediate scrutiny tests), which is regularly employed to test the legality of the burden imposed on a right. (p.10-14, Thomas J.; p. 21-25, Breyer J. dissenting)

The Bruen test propounded (as restated by Thomas J., the author of the majority judgment in Bruen, in his Rahimi dissent) that legislation which addresses a longstanding societal issue dating back to the 18^th century would be invalidated if it lacks a closely analogous historical regulation. Similarly, if historical regulations from the past dealt with such issues using significantly different methods than those under challenge today, it would be considered evidence of inconsistency (p.17-18, Thomas J. in Bruen). A judicial interpretation solely based on history was found to be a more legitimate, neutral and administrable test rather than the value-laden and empirical balancing approach (p.16, Thomas J. in Bruen).

This stringent requirement for exacting historical consistency is incongruous as it struggles to bridge the gap between textual interpretation and its practical discoverability. The contested historical questions that the Bruen test expects the courts to answer created wholesale disruption in the lower courts, forcing judges to assume the role of historians without adequate resources or expertise. This has led to considerable challenges, as judges struggle to apply historical analogues to modern gun regulations. The result has been a landscape of potential inconsistency and absurdity, where the same law might be deemed constitutional or unconstitutional by different courts based solely on their interpretation of historical evidence.

Rahimi’s Recalibration of Absolutistic Historicism 

The Rahimi Court, speaking through Chief Justice Roberts, clarified that its earlier decision did not intend to suggest a “law trapped in amber” (p.7 Roberts CJ.) It finds that the Second Amendment allows more than just regulations identical to those in 1791; instead, the consistency of the regulation with the historical tradition must meet a “relevantly similar” threshold by balancing foundational principles with modern-era circumstances (p.7-8, Roberts CJ). The Court now holds that the impugned regulation need not mirror a historical precursor. Rather, an analogous and principled consistency with the fundamentals of the Second Amendment suffices. (Id.) Justice Sotomayor, in her concurring opinion, notes that the recalibrated inquiry aims to establish a framework that is both “useful and transferable to the present day”, avoiding excessive rigidity that could render the inquiry “useless”. (p.1, Sotomayor J.) While asserting that the means-end approach is the correct analysis for the Second Amendment, Justice Sotomayor clarifies that the Court was not reconsidering the Bruen decision itself (p.6, Sotomayor J).

In applying the nuanced version of the history and tradition test, Chief Justice Roberts upheld the federal law prohibiting gun possession by individuals subject to domestic violence restraining orders. His analysis centred on early English and American firearm regulations, revealing a consistent historical principle of disarming those who pose threats to others. Chief Justice Roberts identified two key historical precedents: laws empowering courts to require bonds from potentially dangerous individuals, and statutes penalising those who threatened others with firearms.

Drawing on these examples, the majority concluded that the historical record, supported by “common sense”, justifies disarming individuals who present clear threats of violence. (p.13-14, Roberts CJ.) While acknowledging that the modern law is not a replica of these historical measures, the Court found it sufficiently analogous in both purpose and application. (Id.) This interpretation demonstrates how the Court is attempting to bridge historical practices with contemporary needs.

Backtracking without Fixing the Fundamentals?

The shift from Bruen to Rahimi reflects a recalibration of the Supreme Court’s historical analysis of Second Amendment cases, moving from a determinative to a relevant standard. While the Court frames this change as clarifying misunderstandings of its recent methodology (p.7, Roberts CJ.), the adjustment implicitly acknowledges Bruen’s flaws. Rahimi takes a welcome first step in addressing the limitations of a purely historical approach, which had bound the government to both the actions and omissions of the past. It seeks to balance historical precedent and the flexibility needed to address current societal needs through legislation. While Rahimi thus introduces some play in the joints, it fails to address the more fundamental issues that inhere in this interpretive method.

Proponents of the history and tradition approach argue that it provides an objective, apolitical method for constitutional interpretation, particularly for pre-existing rights like the Second Amendment. By making historical analogues the primary determinant of constitutional scope, they claim this approach constrains judicial discretion, thereby closing avenues of judicial policymaking. In fact, the reverse is true.

The Level of Generality Problem

A central concern with this method is the lack of specific criteria governing the application of the history and tradition test. Questions persist about determining appropriate historical timeframes, establishing sufficiency thresholds, and defining reliability standards. As Mark Tushnet points out, deriving guiding principles from historical materials without relying on policy preferences is inherently challenging.

The level of generality—the degree of specificity with which historical practices are interpreted—highlights this problem, as it has varied across different cases in its stringency and often appears to be outcome-driven. In Dobbs v. Jackson Women’s Health Organization, for example, the Court employed a low level of generality, narrowly examining whether states banned abortion in 1868. This approach led to the conclusion that there is no constitutional right to abortion. Conversely, in Second Amendment cases like Bruen, the Court applies a dual approach. It describes the weapons covered by the right to self-defence at a high level of generality, thereby including modern firearms like AR-15s within Second Amendment protections, despite their non-existence at the time of the founding. However, when considering laws regulating guns, the Court reverts to a low level of generality, requiring modern regulations to resemble historical practices closely. By contrasting Dobbs and Bruen, Siegel argues that these shifts in the level of generality conceal, rather than constrain, judicial discretion and value-based reasoning.

In Rahimi, rather than addressing this ‘level of generality’ problem directly, Justice Kavanaugh acknowledges in a footnote that there is no universal answer to such methodological questions and that scholarly debate on this matter is ongoing. (n. 4, p.11-12)

The Illusion of Objectivity

At its core, this approach allows judges to selectively choose historical evidence that supports their predetermined conclusions – essentially “pick[ing] their friends out of history’s crowd”. (p.31, Breyer J. in Bruen) This cherry-picking of historical facts exposes the illusion of objectivity that the approach purports to offer. Professor Murray astutely characterises this selective historical recounting as a “jurisprudence of masculinity”, highlighting how it often reinforces traditional power structures and prejudices.

Far from being apolitical, the test allows for the expression of political values under the guise of tradition. Its open-ended nature introduces indeterminacy into legal reasoning, compromising the integrity of judicial decision-making and raising profound questions about its ability to fairly and consistently interpret constitutional rights in a diverse, evolving society. The malleability inherent in the use of historical analysis contradicts central principles of the rule of law, such as predictability, clarity and consistency in the application of the law.

Moreover, as Professor Eric Segall aptly points out, if the historical approach were truly value-neutral, how can we explain the Court’s use of this method to reach such politically charged decisions? The Court has employed this approach to strike down affirmative action, invalidate New York’s gun law dating back to 1911 (in Bruen), and overrule Roe v. Wade and Planned Parenthood v. Casey (in Dobbs). Furthermore, the Court applied historical analysis to religious freedom, ruling that dismissing a football coach for public prayer violated the First Amendment. Rahimi does not tackle the broader question of objectivity, as neither party asked the Court to reevaluate Bruen. (p.6, Sotomayor J., Rahimi)

Fossilising Constitutional Interpretation

Finally, the history and tradition approach risks fossilising constitutional interpretation, tethering rights and regulations to outdated societal contexts.  By making a backward-looking perspective determinative for constitutional questions raised within today’s context, it reinforces past biases and prejudices, undermining the progress made through precedents and legislation that have tried to attenuate historical injustices. It both ignores contemporary societal values and hinders the progressive realisation of rights, rendering the judge’s role effectively jurispathic. In particular, the prioritisation of historical analogues legitimises the striking down of laws that expand rights beyond what was historically recognised, even if these laws reflect modern democratic will and evolving concepts of justice.

For example, if we strictly applied the legal standards of 1868 (when the Fourteenth Amendment was ratified), neither same-sex nor interracial marriages would be constitutionally protected today. At the time of the Fourteenth Amendment’s proposal, 26 states operated racially segregated educational systems, and the very Congress that proposed the amendment maintained segregated schools in the District of Columbia. Applying the historical approach to this context would lead to the troubling conclusion that racial segregation was deeply rooted in the nation’s history and tradition, potentially justifying its continuation.

Reliance on historical analogues would align the law governing our societies today with the perspectives and decisions of lawmakers from an era when women and people of colour were disenfranchised. It would thus perpetuate historical inequalities and effectively tie constitutional destiny to an arbitrarily chosen historical path,  “impoverish[ing] constitutional interpretation and hamstring[ing] our democracy”. (p.4, Sotomayor J., Rahimi)

Conclusion & Way Forward

A robust legal standard requires analytical rigour and a principled basis to produce outcomes firmly grounded in jurisprudence. The Bruen approach radically transforms constitutional interpretation by elevating historical data points from mere contextual evidence to binding doctrinal authority. As exemplified by the question posed by the Rahimi case, if applied strictly, this approach can lead to problematic outcomes, by striking down even sensible laws, such as those disarming individuals under domestic violence restraining orders with a history of gun violence.

The historical data point approach inherently devalues the purpose of new regulations, regardless of their reasonableness or common-sense merit, simply because they lack direct historical parallels. This methodology implicitly assumes that founding-era legislatures exhaustively exercised their regulatory powers. As Justice Barrett observes in her concurring opinion, this perspective effectively imposes a “use it or lose it” constraint on legislative authority (p.4, Barett J., Rahimi) in that effectively dictates that any regulatory power not exercised by early legislatures is permanently forfeited, severely restricting the scope of permissible present-day legislation.

While this post does not argue that means-end balancing is the most ideal approach to constitutional interpretation, it does demonstrate that the history and tradition test, as currently formulated, is deeply flawed. As society evolves, so must our approach to constitutional interpretation, balancing respect for historical foundations with the flexibility to address contemporary needs and values.