The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The Three Trump Appointees In Rahimi

Justices Gorsuch, Kavanaugh, and Barrett are fracturing over originalism.


I have spent some time thinking about how the three Trump appointees differ. In Rahimi, Justices Gorsuch, Kavanaugh, and Barrett each wrote concurring opinions. And they are not on the same page. I'm not even sure they're reading from the same book. Rahimi  provides another opportunity to consider how the troika approaches originalism.

Justice Gorsuch

I'm still uncertain what to make of Justice Gorsuch's dissent. I see some pangs of guilt for not joining Justice Thomas's dissent. He writes:

I appreciate that one of our colleagues sees things differently. Post, at 6–7 (THOMAS, J., dissenting). But if reasonable minds can disagree whether § 922(g)(8) is analogous to past practices originally understood to fall outside the Second Amendment"s scope, we at least agree that is the only proper question a court may ask.

Even if Gorsuch is not persuaded by Roberts's historical examples in all regards, Gorsuch seems convinced that this particular facial challenge cannot succeed.

And, at least in some cases, the statute before us works in the same way and does so for the same reasons [as the surety laws]: It permits a court to disarm a person only if, after notice and hearing, it finds that he "represents a credible threat to the physical safety" of others.

The facial challenge analysis is key to Gorsuch's vote. The opening paragraph of the Gorsuch's concurrence focuses on United States v. Salerno:

Mr. Rahimi pursues the "most difficult challenge to mount successfully": a facial challenge. United States v. Salerno, 481 U. S. 739, 745 (1987). He contends that 18 U.S.C. § 922(g)(8) violates the Second Amendment "in all its applications." Bucklew v. Precythe, 587 U. S. 119, 138 (2019). To prevail, he must show "no set of circumstances" exists in which that law can be applied without violating the Second Amendment. Salerno, 481 U. S., at 745. I agree with the Court that he has failed to make that showing. Ante, at 8.

Salerno is the case that judges cite when they do not want to declare a law unconstitutional. See Judge Sutton's opinion in the Obamacare litigation. Rahimi's merits brief didn't even cite Salerno. And the SG cited it once in her reply brief. During oral argument, Rahimi's lawyer said Salerno was not relevant. Instead, this case mirrored the facial challenge in United States v. Lopez. I think the Salerno dodge helped Roberts button up the eight-member majority. He is very good at what he does.

Justice Gorsuch tries to mediate some synergy between the three concurrences:

If changes are to be made to the Constitution's directions, they must be made by the American people. Nor is there anything remotely unusual about any of this. Routinely, litigants and courts alike must consult history when seeking to discern the meaning and scope of a constitutional provision. See post, at 6–16 (KAVANAUGH, J., concurring) (offering examples). And when doing so, litigants and courts "must exercise care." See post, at 3, n. (BARRETT, J., concurring)

But I think that Justices Gorsuch, Kavanaugh, and Barrett are quite far apart.

Gorsuch concludes:

Among all the opinions issued in this case, its central messages should not be lost. The Court reinforces the focus on text, history, and tradition, following exactly the path we described in Bruen.

Far from it. The Court rewrites Bruen, which apparently had a two-year expiration date.


Justice Kavanaugh wrote a 24-page concurrence that was about 24 pages too long. I give Kavanaugh credit for trying to lay out an intellectual foundation to support his approach to originalism, but the only person who will be persuaded is Justice Kavanaugh himself. And maybe that was the purpose. None of the other originalists on the Court even gestured in agreement with Kavanaugh. In years past, Justices Barrett and Kavanaugh were joined at the hip, but now ACB seems to be breaking away towards Justice Kagan, who can continuously reinvent herself with the principle of the day to find a new vote.

Reading through the Kavanaugh concurrence, I saw very little that was novel. It was mostly a synthesis of what a few originalist scholars have written about tradition. And, for better or worse, those scholars were primarily responding to recent decisions from the Roberts Court about tradition. And those same scholars, for better or worse, will now praise Kavanaugh who praised their work. Kavanaugh's Rahimi concurrence closed the feedback loop. The next step in this feedback loop will be creating a taxonomy for tradition. Kavanaugh suggests four factors:

Post-ratification history is sometimes also referred to as tradition, liquidation, or historical gloss. Those concepts are probably not identical in all respects. In any event, in applying those concepts in constitutional interpretation, some important questions can arise, such as: (i) the level of generality at which to define a historical practice; (ii) how widespread a historical practice must have been; (iii) how long ago it must have started; and (iv) how long it must have endured.

Are we really going to do this? Measure how long some post-ratification tradition has "endured" to determine original meaning? I get that this inquiry is baked into the Glucksberg substantive due process test, but that framework is not originalist.

Kavanaugh also tried to retcon many opinions from Justice Scalia to support his view of tradition. The string-cites were interminable. Justice Kavanaugh also went to great lengths to find support for his views in writings of Scalia, Bork, and Rehnquist. He cited each of these articles at least twice.

  • A. Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989)
  • A. Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1183 (1989)
  • R. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 21–22 (1971)
  • W. Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 697 (1976)

Kavanaugh even favorably cites the John Roberts "umpire" metaphor, and grafts the umpire claim onto Scalia!

To begin, as I have explained, that kind of balancing approach to constitutional interpretation departs from what Framers such as Madison stated, what jurists such as Marshall and Scalia did, what judges as umpires should strive to do, and what this Court has actually done across the constitutional landscape for the last two centuries.

After a while, it felt almost uncomfortable how Kavanaugh was trying to claim Scalia's mantle. We get it. Scalia is an important figure in Supreme Court history. But you are allowed to have your own thoughts that deviate from Justice Scalia. Justice Scalia also wrote Smith and favored Chevron. You can disagree with Scalia. I've done it many times. He was not infallible. David Lat's new column quoted Justice Barrett, who said during her confirmation hearing, "I assure you, I have my own mind." And she meant it!

Meanwhile, Justice Kavanaugh offered an encomium to this motley crew of "judges of wisdom":

But the first stop in this Court's constitutional decisionmaking is the Court's precedents—the accumulated wisdom of jurists from Marshall and Story to Harlan and Taft; from Hughes and Black to Jackson and White; from Rehnquist and O'Connor to Kennedy and Scalia; and so on.

Some of those names do not belong on that list. The co-authors of Casey–O'Connor and Kennedy–for starters. And what about Taft? Hughes? Black? And I'm not sure which White he was referring to–Byron or Edward Douglass? Or was White listed to draw a contrast with Black? I much prefer Justice Scalia's takedown of Justice Kennedy in Obergefell:

The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Then there are the contestable contentions in Kavanaugh's opinion. Mike Rappaport points out two mistakes Kavanuagh made about post-ratification history.

First, Kavanaugh states that "when the text is vague and the pre-ratification history is elusive or inconclusive, post-ratification history becomes especially important" because "absent precedent, there can be little else to guide a judge deciding a constitutional case in that situation, unless the judge simply defaults to his or her own policy preferences."

Wrong, wrong, wrong. . . .

Second, Kavanaugh cites Justice Scalia for the proposition that "post-ratification history" from "far beyond the time of enactment" are "indicative of original meaning." (Kavanaugh here cites Mike Ramsey.) While Scalia may have said this, it is simply not true. Even Scalia nods.

Again, Scalia is not perfect.

Kavanaugh also purports to list about twenty instances in which the Constitution has "strikingly clear prose." I'm not certain about several of them. To take one example, the text of the Pardon Clause may be clear, but can the President pardon himself?

Kavanaugh also uses the words "vague" and "broadly worded" interchangeably. Somewhere, Professor Solum is turning his tent-card to make a comment.

I hesitate to criticize Kavanaugh, since he is actually trying to explain his thinking. Kudos to him! But at times, it felt like a law review note about originalism. I don't know if it will warrant inclusion in any casebook because it is so long, and so anodyne.

Justice Barrett

Justice Barrett's concurrence in Vidal, as I predicted, signaled her buyer's remorse of Bruen.

Barrett's concurrence in Rahimi offered her condensed view of originalism:

Because the Court has taken an originalist approach to the Second Amendment, it is worth pausing to identify the basic premises of originalism. The theory is built on two core principles: that the meaning of constitutional text is fixed at the time of its ratification and that the "discoverable historical meaning … has legal significance and is authoritative in most circumstances." K. Whittington, Originalism: A Critical Introduction, 82 Ford. L. Rev. 375, 378 (2013) (Whittington). Ratification is a democratic act that renders constitutional text part of our fundamental law, see Arts. V, VII, and that text "remains law until lawfully altered," S. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777, 782 (2022). So for an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function. To be sure, postenactment history can be an important tool. For example, it can "reinforce our understanding of the Constitution's original meaning"; "liquidate ambiguous constitutional provisions"; provide persuasive evidence of the original meaning; and, if stare decisis applies, control the outcome. See Vidal v. Elster–––– (2024) (BARRETT, J., concurring in part). But generally speaking, the use of postenactment history requires some justification other than originalism simpliciter.

In a single paragraph, Justice Barrett undermines Justice Kavanaugh's treatise on tradition. It would have been meaningful if the Justices had some sort of back-and-forth, rather than simply asserting their views seriatim. Again, I'm not sure who Justice Kavanaugh is trying to persuade, but Justice Barrett is signaling loud and clear that she is not up for persuasion.

Next, Barrett explains that her reservation in Bruen was not limited to the 1791/1868 question (as I had suspected):

In Bruen, the Court took history beyond the founding era, considering gun regulations that spanned the 19th century. 597 U. S., at 50–70. I expressed reservations about the scope of that inquiry but concluded that the timing question did not matter to Bruen's holding. Id., at 81–83 (concurring opinion). It bears emphasis, however, that my questions were about the time period relevant to discerning the Second Amendment's original meaning—for instance, what is the post-1791 cutoff for discerning how the Second Amendment was originally understood? Id., at 82 ("How long after ratification may subsequent practice illuminate original public meaning?"). My doubts were not about whether "tradition," standing alone, is dispositive. Id., at 83 ("[T]oday's decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights"). As I have explained elsewhere, evidence of "tradition" unmoored from original meaning is not binding law. Vidal, 602 U. S., at –––– – –––– (BARRETT, J., concurring in part) (slip op., at 13–15). And scattered cases or regulations pulled from history may have little bearing on the meaning of the text. Samia v. United States, 599 U. S. 635, 656–657 (2023) (BARRETT, J., concurring in part and concurring in judgment).

Justice Barrett address the "level of generality"–an evergreen question for originalists.

Courts have struggled with this use of history in the wake of Bruen. One difficulty is a level of generality problem: Must the government produce a founding-era relative of the challenged regulation—if not a twin, a cousin? Or do founding-era gun regulations yield concrete principles that mark the borders of the right?

The "cousin" line reminds me of her "in-law" line in Sheetz. Barrett likes familial references. See also her discussion of kids and amusement parks in the student loan case.

Barrett writes that she looks to "historical regulations" for a "principle, not a mold." She explains, "To be consistent with historical limits, a challenged regulation need not be an updated model of a historical counterpart." And she rejects a "use it or lose it" view of legislative authority, in which if a legislature fails to use their maximum power, future governments lose that power. This is like the inverse of an adverse possession theory of law, as Justice Scalia described it in Noel Canning.

And how do you know what that "principle" ought to be? Barrett writes:

To be sure, a court must be careful not to read a principle at such a high level of generality that it waters down the right. Pulling principle from precedent, whether case law or history, is a standard feature of legal reasoning, and reasonable minds sometimes disagree about how broad or narrow the controlling principle should be.

I think this is probably the greatest area of overlap between Justice Barrett and Justice Kavanaugh. She will look to post-ratification practice to determine originalist "principles," but does not contend those principles are themselves indicia of original meaning. I don't think this is fully thought-through, but I'm starting to see the contours of her approach.

The developing challenge with Justice Barrett is not whether she understands originalist methodology. She does, and articulates it well. Rather, the debate is over how much evidence of original meaning she demands before following original meaning. From Fulton to Brackeen to Rahimi, she wants a perfectly-compelling case to persuade her. Otherwise, Justice Barrett's mind is made up. I'm not sure why she has adopted this high burden. But the upshot is that in any given case, so long as Barrett convinces herself that lawyers did not meet the burden, she will revert to some non-originalist form of judging. Justice Barrett would prefer to openly avoid originalism, rather than pretending to follow what she sees as shoddy originalism. She will let the perfect be the enemy of the good.

Finally, one last note on Barrett.

Chief Justice Roberts's majority opinion includes this sentence:

Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.

Justice Barrett's opinion from the Seventh Circuit in Kanter v. Barr included this sentence:

Kanter v. Barr, 919 F. 3d 437, 451, 464–465 (CA7 2019) (Barrett, J., dissenting) ("History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns").

Roberts knows how to hold a majority.