J. Scott Applewhite/AP Photo
The Rev. Patrick Mahoney demonstrates as the Supreme Court announces decisions, on Capitol Hill in Washington, June 21, 2024.
It’s been almost two years to the day, and, finally, we can all at least agree that the Supreme Court’s newly minted, catchall “history and tradition” test for critical cases has accomplished two things: delivering massive conservative policy wins, and causing chaos for lawmakers and judges around the country.
The Court issued a ruling today upholding a law that temporarily disarms people who are under restraining orders for domestic violence, rejecting Justice Clarence Thomas’s absolutist view of the Second Amendment and also modifying the “history and tradition” test the conservative justices invented in 2022.
It’s perhaps the most significant ruling in what was an unexpectedly quiet week from the Court, which is still considering major questions on presidential immunity, social media regulation, homelessness, and the scope of government agencies’ power. And it’s a small win for U.S. society and for women in particular, who are five times more likely to be murdered if their domestic abuser has access to a gun, as some of the liberal justices pointed out in the opinion.
The question about firearms for people under restraining orders only came to the Court in the first place because of the conservative majority’s 2022 ruling in New York State Rifle and Pistol Association, Inc. v. Bruen, which enacted a radical expansion of gun rights. Bruen was one of three bombshell opinions in June 2022, including Dobbs v. Jackson Women’s Health Organization, which overturned women’s constitutional right to an abortion, and another decision that blurred the thinning lines between church and state.
Each of those rulings replaced decades of precedent that applied in those specific contexts with an all-purpose “history and tradition” test, which tells courts to decide if a law is constitutional by simply looking to “historical practices and understandings,” without further guidance. Pre-June 2022, courts would have used context-specific analyses designed to weigh the ends, or the government’s goals, against the means or methods it chose to accomplish them.
The “history and tradition” test is essentially an instruction to judges and legislators to scan 18th- and 19th-century history—turning them into professional historians—and to see (read: cherry-pick) whether there were any laws and policies that support their legal arguments. Their rulings, and newly enacted laws, will ultimately be challenged up to the Supreme Court, which then decides whether the lower courts scanned history properly. Seems airtight, right?
An unusual number of judges have openly complained about the test, in and outside of their opinions.
The test has been criticized from the start, including for the fact that it always seems to apply when the Court is changing the law, and almost always to enact conservative or right-wing policies. (I’m one of the critics.) Attorneys and scholars have described it as playing “memory games,” while being inconsistent, misguided, unworkable, and exclusionary. In fact, well before 2022, real live historians sometimes referred to that kind of “legal analysis” as “law office history,” and they didn’t mean it in a good way.
An unusual number of judges, too, have openly complained about the test, in and outside of their opinions. U.S. District Judge Carlton Reeves wrote in a 2022 decision that “[w]e are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791,” stressing, again, that judges can’t do the work of trained historians, even if one accepted that this is a prudent approach to take. Eleventh Circuit Court of Appeals Judge Kevin Newsom—a Donald Trump appointee—criticized the test in a speech at Harvard Law School in February.
Today’s gun rights ruling exemplifies the problem. The 8-1 decision clarifies Bruen, but with six different justices deciding they wanted to say something else, or more, in separate concurring opinions. So much for clarity.
The test—or the latest version of it—is much less strict than lower courts have thought, the justices said: It only requires a historical analogue that agrees with the principles of the Second Amendment, not a historic law that’s a “dead ringer” or a “historical twin” to the modern law.
The three liberal justices all added separately that they believe Bruen was wrongly decided, and are troubled by the “history and tradition” test. And virtually all of the justices—except Clarence Thomas, who was in fact the author of the Bruen opinion—at least agreed in the majority opinion (authored by Chief Justice John Roberts) that “some courts have misunderstood the methodology” of the tradition test.
So, there you have it: We’re now all in agreement that the original “history and tradition” test was not particularly clear, at least.
You might say this is also an admission, of sorts, of some of the criticisms of the test. Justice Jackson, who wasn’t on the Court when Bruen was decided, certainly seemed to think so.
“Make no mistake: Today’s effort to clear up ‘misunderst[andings]’ is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them,” Jackson wrote.
That seems like a very fair point, especially considering that judges were not openly complaining at conferences or writing a bunch of rulings saying they feel totally insecure about the soundness of their analysis before the “history and tradition” test was invented. We weren’t wondering whether domestic abusers can have their guns taken away; nor did we have federal court decisions holding that state judges can open their courtrooms with prayer, or legislators passing laws requiring the Ten Commandments be displayed in public schools.
One justice agrees that the blame for all that may lie with the Supreme Court’s conservatives, and their new legal test that seems to produce nothing other than right-wing policy wins and confusion. But, at least, we can all now agree that the test is more than a little confusing.
