The Volokh Conspiracy
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Is "Law Trapped In Amber"?
Lesson for Chief Justice Roberts from Jurassic Park.
I first watched Jurassic Park when I was a few months shy of my ninth birthday. It was a formative experience for my youth. Three decades later, the blockbuster still holds up. I recently watched it with a performance by the Houston Symphony. Still brings the house down.
The premise of the movie is that scientists extracted dinosaur DNA from mosquitos who were trapped in amber. But the DNA found in the mosquitos was incomplete. There would be "massive sequence gaps," as Dr. Ian Malcolm told us. Instead, the scientists had to complete the genetic code with DNA from frogs. While all the dinosaurs in Jurassic Park were bred to be female, frogs had the power to change their sex. As a result, the dinosaurs were able to breed. And the rest is history.
I thought of Jurassic Park when I read what will likely be the most quoted sentence in Chief Justice Roberts's Rahimi majority opinion:
Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber.
Roberts no doubt made this line up, but may have been thinking of Jurassic Park.
Justice Sotomayor quotes the line in her concurrence:
Thankfully, the Court rejects that rigid approach to the historical inquiry. As the Court puts it today, Bruen was "not meant to suggest a law trapped in amber."
As does Justice Jackson:
The Court today expounds on the history-and-tradition inquiry that Bruen requires. . . . Ante, at 7–8. We emphasize that the Second Amendment is "not … a law trapped in amber."
Justice Barrett also embraces the line:
To be consistent with historical limits, a challenged regulation need not be an updated model of a historical counterpart. Besides, imposing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us "a law trapped in amber."
Justice Gorsuch's concurrence seems content to be bound by amber, but doesn't think there is amber here:
We have no authority to question that judgment. As judges charged with respecting the people's directions in the Constitution—directions that are "trapped in amber," see ante, at 7—our only lawful role is to apply them in the cases that come before us. Developments in the world may change, facts on the ground may evolve, and new laws may invite new challenges, but the Constitution the people adopted remains our enduring guide.
"Trapped in amber" is sort of like "judges are umpires." A quotable platitude that masks difficult jurisprudential decisions. This line will be used to give countless judges cover to break free from history.
In a way, what Chief Justice Roberts did in Rahimi is akin to what the scientists did in Jurassic Park. He extracted an incomplete historical record from long ago, merged it with some modern-day know-how to fill the gaps, and created some new creation that people want to see. Mosquitos are not trapped in amber anymore than surety laws are stuck in amber. What the Court did here is not originalism. It is recreationism. We're left with the Second Amendment merged with some frog DNA. Welcome to Jurassic Park.
