The Volokh Conspiracy

"Applying the Text and History Methodology to Looming Second Amendment Battles After Rahimi" was the topic of a session on November 16 at the Federalist Society's 2024 National Lawyers Convention. You can listen to the remarks here.

The moderator was Sixth Circuit Judge Amul Thapar, author of the delightful book The People's Justice: Clarence Thomas and the Constitutional Stories that Define Him. The panel featured three leading voices in the Second Amendment space.

Speaker Mark W. Smith is a Senior Fellow at the Ave Maria School of Law and Host of the Four Boxes Diner Second Amendment Channel. (That refers to the four boxes of American liberty, the soap box, ballot box, jury box, and cartridge box.)

Smith focused on the text first-history second approach applied by the Supreme Court in Heller and elaborated in Bruen. As the Supreme Court has now taught in some detail in both Bruen and Rahimi, the historical work of understanding the Second Amendment involves examining laws that impacted the right to keep and bear arms historically and asking both "how" and "why" those laws limited the right. Then, as Rahimi makes clear, the question is whether the "principle" underlying those historical laws—the synthesis of "how" and "why" they regulated the right while remaining consistent with it—would, today, justify whatever modern firearm law is at issue in ongoing litigation.

The key question, as Justice Barrett mentioned in her concurrence in Rahimi, and about which Smith spoke at the conference, is what level of generality is the right one to draw these principles? Rahimi itself shows that error lies on either extreme—the Fifth Circuit drew its analogies too narrowly and required a "historical twin," while the government in Rahimi pushed for a rule that would swallow the Amendment whole in permitting the Government to bar firearm possession by anyone judged "irresponsible."

In talking about this problem, Smith suggested a way for courts and litigants to check their homework and make sure they have not drawn too broad of lessons from histories, by comparing them against what he called the "third rails" of the analogical process. (Touching the third rail on a railroad track will electrocute you.) A principle would touch a "third rail" if:

1. 1. The principle is directly contrary to the founding era understanding of the text of the Second Amendment.
   2. The principle would violate Supreme Court precedent, such as Heller's holding that arms in common use are protected and may not be banned.
   3. The principle would be based on a concern for criminal misuse rather the rights of the law-abiding (recall the Scalia-Breyer debate in Heller).
   4. The principle would disregard the purpose of the Amendment to protect the right of self-defense and thwart tyranny, invasion, and criminality.
   5. The principle would permit restrictions on what were common firearms-related activities at the Founding. In other words, if the Founders engaged in a practice, courts should not endorse a principle that would let the government turn the Founders into felons.

David Thompson, who also presented, is a partner at Cooper & Kirk, which is conducting a large share of the Second Amendment litigation today. Thompson also spoke to the need to check historical principles for error in the level of generality at which they are drawn. He gave, as an example of a regulation with justifications that touch these "third rails," bans on arms in common use.

The D.C. Circuit recently blessed such a ban, and in the process invented the principle that arms "capable of unprecedented lethality" may be banned, regardless of their commonality.

As Thompson pointed out, such a historical principle touches just about every one of the "third rails" identified by Smith. It violates Supreme Court precedent. In Heller, Justice Scalia found such arguments to "border on the frivolous," and specifically held that firearms "in common use" cannot be banned (and Bruen reaffirmed that holding). In fact, the history of firearms development is the search for more lethality and accuracy. People want more effective tools with which to defend themselves. By treating lethality as a bad thing, the U.S. Court of Appeals for the D.C. Circuit derived a principle that focused on how criminals misuse firearms, not on how law-abiding citizens use them, which violates another "third rail." The Second Amendment, Thompson stated, allows us to live free, not as slaves. Heller teaches us to consider the desirable increased accuracy and lethality for law-abiding citizens, not for criminals. The D.C. handgun ban was based on criminal misuse and disregarded justifiable use by the law-abiding.
The nationwide popularity of the AR-15 rifle illustrates why the common use test is consistent with the true principles underlying the Second Amendment. With 44 million in circulation, it goes without saying that AR-15s are commonly possessed by law-abiding citizens for lawful purposes. Of course, the AR-15 is popular precisely because it is a useful tool for self-defense, which is one of the purposes underlying the Second Amendment as well as resisting tyranny. And, to state the obvious, the Founders owned and used a lot of "common" firearms that were also lethal, and they never once thought to do something so self-defeating as to ban the very tools that had freed them from British rule.

Professor William Merkel of the Charleston School of Law, the coauthor, with the late Richard Uviller, of the 2002 book The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent, provided a counterpoint to Smith and Thompson,  arguing that the Heller was wrongly decided and that the Second Amendment does not protect an individual right to arms at all.

The Federalist Society's National Lawyers Convention has included a segment on the Second Amendment for several years now, and this one did not disappoint. Hopefully the dialogue will continue.