The Fidelity of ‘Originalist’ Justices Is About to Be Tested

The Supreme Court reputedly has a long-awaited conservative majority committed to enforcing the meaning of the Constitution as it was understood when it was adopted. This commitment to originalist interpretation will soon be tested in two cases now before the court that have what lawyers call “bad optics.”

One case, United States v. Rahimi, involves a Second Amendment challenge to a federal statute criminalizing the possession of firearms by people subject to certain domestic violence restraining orders. State courts typically use these orders to forbid threatening or abusive conduct toward the subject’s “intimate partner.” The federal gun ban is automatically imposed if the order either says that the subject presents a credible threat to the physical safety of the partner or explicitly forbids the use of physical force against the partner.

The other case, Garland v. Cargill, involves a regulatory ban on “bump stocks” that enable a semiautomatic rifle to achieve a rate of fire comparable to that of fully automatic machine guns. After a 2017 Las Vegas massacre in which semiautomatic rifles equipped with bump stocks were used to kill 60 people and injure hundreds more, the Trump administration classified them as machine guns, which made them illegal.

No judge can relish being accused of siding with domestic abusers or of allowing a weapon to remain on the market that facilitated mass murder. Unless the court rules in favor of the government in these cases, denunciations undoubtedly will follow, especially in an election year.

These cases have come before a court that has been transformed by Republican efforts to stop the politicized use of judicial power to effect progressive social change. What began with calls for judicial restraint during the Nixon era eventually became a long campaign devoted to promoting originalist theories of interpretation.

This effort had its first conspicuous success in 2008, when a 5-to-4 majority struck down a handgun ban in District of Columbia v. Heller. Justice Antonin Scalia’s majority opinion featured a detailed originalist analysis that rejected an overwhelming and longstanding consensus in the lower courts. Rather than assume that the Second Amendment protects only a right of state governments to maintain militia organizations, the court concluded that the constitutional “right of the people to keep and bear arms” may be exercised by individuals for the purpose of self-defense.