In an 8-1 decision last week, the Supreme Court followed the logic of our historians’ amicus brief to come to what should have been an obvious decision. The justices prohibited a domestic abuser who had already shot at his girlfriend—and the mother of his child—from possessing a gun after a judge had imposed a domestic restraining order on him. In so doing, they upheld a federal law that the Fifth Circuit had invalidated using the Court’s logic in its 2022 precedent-destroying decision in New York State Rifle and Pistol Association v. Bruen, which struck down a century-old Empire State statute limiting guns in public.
This is a step forward, but only a tiny step. Via Bruen, the Court created a crisis for state legislatures and attorneys general by ruling that all gun regulations have to be rationalized through gun regulations in the Founding Era. In Justice Clarence Thomas’s words, writing for the majority in Bruen, current firearms laws must adhere to the “history and traditions” of the founding, even though ours is a different era. (Among other things, guns are far more powerful, accurate, and deadly.) By that standard, every gun regulation must involve historians whose research and analysis must be evaluated by the Court. While U.S. v. Rahimi vindicates historians, it also underscores the limitations of the “history-and-tradition” rule that Bruen created.
Some background: The conservative Fifth Circuit issued a ruling invalidating 18 U. S. C. §922(g)(8), a federal statute that prohibited people under restraining orders for domestic violence from carrying guns. It construed Bruen to mean that all restrictions on gun ownership had to have an exact “twin” in the past. The past, moreover, was not just any moment in the past. It had to be the narrow window during and after the Constitution’s ratification in 1791. The Fifth Circuit was unconvinced that Founding Era laws were echoed in the federal statute. As such, it was unconstitutional. No law could keep Zackey Rahimi from a gun.
The Bruen rule that any curtailment of firearms must “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation” has obvious limitations. You do not have to be a historian to see the 1790s are not the 2020s. However, the application of Bruen’s narrow history-and-traditions framework by federal courts has narrowed the options still further. Following Bruen, many appellate and trial courts defined history and traditions regarding legislation, namely colonial and state statutes. Yes, defined in those terms, history and tradition did not support regulation because no legislation from the Founding Era specifically addressed gun ownership. The Rahimi case raised the bar higher still since it involved domestic violence statutes, about which Founding Era statutes were also silent. A view from the 18th-century statutes alone suggests a lawless era: Do what you want with your gun or your wife because no statutes prohibited such behavior.
This pinched view misconstrues the nation’s legal history and traditions, particularly at the founding moment. Last summer, a group of historians, including us, began working on an amicus brief in Rahimi. Given our scholarship, we knew that the legal principles and practices of the Founding Era were about much more than statutes and appellate opinions.
Violence of all kinds—including gun and domestic violence—was regulated through widely followed principles in common law that allowed people to make complaints about threats of violence to local officials, who followed longstanding procedures to maintain “the peace,” which included the safety of all community members. Offenders were required to post a peace bond, also called a surety. While similar to a modern restraining order, peace bonds included close community surveillance. Sureties—those who posted bond—were charged with ensuring the offender did not break the peace again. If sureties failed in their duties, they lost their part of the bond, which could mean selling productive property, such as land and tools. If offenders could not find anyone to post bond, they were jailed. They were also jailed if they broke the peace while under a bond. Even wives who felt threatened by their husbands could initiate this process. The constraints of coverture, which prohibited married women from prosecuting legal actions in their own names, did not apply because these were offenses against the peace of the community.
As our brief outlined, the regulation of violence—including gun violence and domestic violence—is part of the history and traditions of this nation. It just did not appear in statutes. There was no need because those laws were found elsewhere, in treatises, manuals for local officials, and through practices understood as legally enforceable and did not necessarily take written form. States did expand their reach over all kinds of issues, including gun and domestic violence, later in the 19th century. But the laws they enacted were not a departure from the history and traditions of the Founding Era. In fact, many of the initial statutes on firearms and domestic violence merely codified longstanding practices.
By acknowledging this part of the nation’s legal past in Rahimi, the Court allowed for gun regulations for those under restraining orders for domestic violence. But it retained the myopic history-and-traditions test, which requires historical research to justify every gun regulation. The Court kept the power it gave itself, through Bruen, to make law on regulating violence, even though those issues once belonged to people and their representatives. Invoking “history-and-traditions” and giving itself the authority to determine what those are, the Court can pick and choose among firearms regulations.
As a result, attorneys general across the country are having to find Founding Era laws to justify their states’ firearms regulations relating to situations and places—such as playgrounds or football stadiums—that did not exist in the 1790s, never knowing if the laws they dig up will pass muster with the Court. Bruen’s unclear legal standard led to confusing results. Searching through a past without clear answers, judges have suspended existing laws and rendered a hodgepodge of decisions. As Justice Ketanji Brown Jackson notes in her concurrence: “The message the lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen’s madness.”
There is general wisdom to be found in the past, to be sure, but when it comes to guns, the 1790s are not always the best place to look for specific policy recommendations. With Rahimi, the judges still ignore the history and tradition of the nation’s regulation of violence: the primacy given to legislatures and the democratic process to respond to public safety issues. Except in extraordinary situations, the people and their representatives should identify and handle violence that threatens public order, not the Court. The most important history and tradition that both Bruen and Rahimi upend is judicial humility and restraint.
Holly Brewer is Burke Professor of American History at the University of Maryland and author of By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (2005). Laura F. Edwards is the Class of 1921 Bicentennial Professor in the History of American Law and Liberty in the History Department at Princeton University. Her scholarship focuses on legal practice in the 19th-century United States.
