A few months ago, the Supreme Court decided an important Fourth Amendment case, Torres v. Madrid. The case struck me for its discussion of guns—and how they may require a reappraisal of traditional rules of criminal procedure (namely, what constitutes a seizure). But though I read it for the gun angle, the case offered much more: disagreement about how to fashion judicial rules of decision, analogical reasoning across historical divides, what constitutes dicta and why it matters, and the means of synthesizing common law traditions. All these other topics will also be star players in the Supreme Court’s major Second Amendment case next term, New York State Rifle & Pistol Association v. Corlett. The line-up in Torres also may portend interesting splits among the conservative justices, with Chief Justice Roberts and Justice Kavanaugh joining the left-leaning justices in the majority, and Justice Gorsuch in the dissent, joined by Justices Thomas and Alito (Justice Barrett did not take part in the case).
In 2014, several police officers serving a warrant for a different person encountered Roxanne Torres. After she got into her car, police ordered her to stop, but she proceeded to drive away. (She claimed she thought it was an attempted carjacking.) The officers shot into the car, hitting and injuring Torres. Despite being shot, Torres managed to drive far away from the scene and was not formally arrested until the next day at the hospital. She later sued the officers under 42 U.S.C. § 1983 for the constitutional tort of excessive force under the Fourth Amendment. At issue in the case was whether Torres had been “seized” within the meaning of the Constitution. If not, the case was over (as the Tenth Circuit held), because she could not make out a Fourth Amendment excessive force claim if she was not seized. The case required the Court to decide whether a seizure requires an acquisition of control and/or possession or whether a person can—like Torres—be seized even though she gets away from officers and is never under their control.
In an opinion by the Chief Justice, the Court held that a Fourth Amendment seizure occurs in a situation like this, where an officer applies physical force and has an objective intent to restrain the person, even if the person successfully flees. The Torres opinion provides more evidence for the recent observation from several noted legal scholars and historians that, “[o]ver the past twenty years, constitutional law has taken a decidedly historical turn, both in academia and in the courts.” That will no doubt be true of Corlett too. The majority opinion here is filled with references to historical treatises and common law cases. The dissent, authored by Justice Gorsuch, is just as history focused (but with an extra emphasis on text; indeed, at points, it seems Justice Gorsuch thinks the Court’s focus on history was too hasty, as at p.10: “Rather than focus on text, the majority turns quickly to history.”)
The debate between these two conservative jurists sets up what I expect to be a similar debate in Corlett—and may even produce some interesting and unexpected alliances on issues like how to read the common law tradition and reason across generations. Specifically, I see at least four ways that the Torres decision could give us insight into Corlett and future Second Amendment cases:
In the Second Amendment context, then-Judge Kavanaugh argued that lower courts should adopt a test for deciding Second Amendment cases that focuses solely on text, history, and tradition. What that means for judges confronted with innovative regulation is that “the proper interpretive approach is to reason by analogy from history and tradition.” In such cases, judges will have to ask whether, for example, AR-15s are relevantly similar to muskets, as well as whether laws requiring registration of long guns are relevantly similar to historical laws requiring dealers to keep records of long gun sales, and so on. Torres shows that the relevance of similarities can often be in the eye of the beholder.
In his opinion for the Court in Torres, Chief Justice Roberts argued that the common law tradition included as an arrest (and therefore a seizure) the application of any physical force—the mere laying on of hands, for instance—when combined with the intent to restrain. From that “mere-touch rule,” the Chief considered shooting someone with a gun a mere extension of touching them. As he said, “[n]either the parties nor the United States as amicus curiae suggests that the officers’ use of bullets to restrain Torres alters the analysis in any way.” (p.7). In fact, he said, this case was analogous to an old common-law case where a government official touched the person with a mace, thereby effecting an arrest. “[W]e see no basis,” said the Court, “for drawing an artificial line between grasping with a hand and other means of applying physical force to effect an arrest.” (p.8). After all, it was not strange that founding era courts did not confront cases of apprehension by firearm.
While firearms have existed for a millennium and were certainly familiar at the founding, we have observed that law enforcement did not carry handguns until the latter half of the 19th century, at which point “it bec[a]me possible to use deadly force from a distance as a means of apprehension.” Tennessee v. Garner, 471 U. S. 1, 14–15 (1985). So it should come as no surprise that neither we nor the dissent has located a common law case in which an officer used a gun to apprehend a suspect. (p.9).
The widespread adoption and use of long-distance weaponry like firearms means that courts will now have to confront claims of long-distance (and occasionally, as here, ineffective) seizures that just would not have often arisen several hundred years ago. Justice Gorsuch was not buying this analogical extension. Firearms were common back then, Justice Gorsuch insisted. It would not be surprising to see a case raising a similar claim or to see courts or commentators considering the role that a seizure-by-firearm would take. Because we do not see that in the cases, Justice Gorsuch contended, this analogy of laying on of hands to shooting with a gun was unpersuasive. And, he continued, the case the majority cited about the mace was not about what constituted an arrest at all. This quibble over the historical record leads into the next insight I think the case offers for future Second Amendment litigation.
The mace case—Countess of Rutland—was decided in 1605. Often, 17th century English cases involve issues that require a deep understanding of the historical context and of types of practices that are foreign to 21st century American law. As they did with Countess of Rutland, the justices in Torres sparred over how to read the common-law record more broadly. Justice Gorsuch talked repeatedly of the “main currents of the common law” (p.1) and criticized the majority for venturing into an “obscure eddy” that did not represent the main tradition (p.14). He dismissed “strange cases” (p. 14) with “curious” histories (p. 14) and “obscure” practices (p.16) as shedding little light on current controversies. For Justice Gorsuch, the common law tradition had to be culled and the main lines separated from lines of cases that were less important. As he said:
The common law offers a vast legal library. Like any other, it must be used thoughtfully. We have no business wandering about and randomly grabbing volumes off the shelf, plucking out passages we like, scratching out bits we don’t, all before pasting our own new pastiche into the U.S. Reports. That does not respect legal history; it rewrites it. (p.21)
The Chief Justice, meanwhile, retorted that Gorsuch’s dismissal of cases or lines of common-law tradition that are “unfortunate” or “peculiar” is not a good way to view the historical record.
Unsurprisingly, this debate is also echoed in Second Amendment cases. To take one example, in the Ninth Circuit, two conservative judges also recently presented competing ways to view the historical record. For Judge O’Scannlain, the tradition has to be culled of any cases that contained reasoning or results, however subtle, that conflict with Heller’s view of the Second Amendment. He would discard these precedents altogether. For Judge Bybee, that view is untenable. As he said in Young v. Hawaii for the en banc majority:
If the Second Amendment codifies an “existing right,” we have to look to some source for the right. And unless we are willing to say that it is a natural right without reference to English or American practice, we have to look at all of the materials. The dissent can only get to its conclusion by rejecting the English practice, the entire history of American legislation, half of the state cases, and at least half of the scholarly commentary. That is not much of a “preexisting right” if all the state legislatures and half of state supreme courts got it wrong.
I have no doubt that in Corlett there will be dueling ideas about what parts of the common law tradition inform present debates, just as there was in Torres (and Young). What’s more, like in Torres, there’s also a 17th century English case the justices will almost certainly debate: Rex v. Knight, aka Sir John Knight’s Case. That case has already spurred debate among judges and scholars, with some historians weighing in to provide the important context of the decision. If Torres teaches anything on this score, it demonstrates that even conservative justices with similar methodological commitments may view the historical record very differently. Indeed, Judge Bybee and O’Scannlain’s Young debate featured this same contest.
In Heller, Justice Scalia (in)famously carved out several issues that he said were not called into question by the Court’s decision:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
There’s been a debate about whether this paragraph is dicta—and if so, what that means—ever since. The Court also, in the course of supporting the point that the Second Amendment is not absolute, noted that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”
In Torres, the debate was also over something (arguably unnecessary) that Justice Scalia wrote in an earlier opinion. In a 1991 case, California v. Hodari D., Justice Scalia said basically what the Torres majority did in a case that did not deal with a seizure-by-touch. The Torres majority did not rely on that statement alone, but instead independently argued in favor of the same rule. But Justice Gorsuch took pains to distance himself from the Hodari D. statement. For him, it was clear the statement was dicta, and while dicta can be useful to litigants and judges, “dicta cannot bind future courts.” (p.4). The “ancient rule” that refuses to give dicta precedential effect serves important purposes, he insisted. Those statements may not have been thought out, they weren’t briefed by the parties, and courts do not even have authority to opine on issues not in dispute. Judicial humility requires recognizing the limits of stare decisis and “[f]ewer things could be less humble than insisting our every passing surmise constitutes a rule forever binding a Nation of over 300 million people. No judge can see around every corner, predict the future, or fairly resolve matters not at issue.” (p.5). The Scalia dicta in Hodari D., he said, was on an issue that hadn’t been briefed and rested only on “shallow consideration” with citation to just three sources. (For comparison, the Heller exceptions paragraph cited precisely zero sources for support and contained no argument or elaboration. As to concealed carry, however, the Court did cite—like Hodari D.—three sources.) It may not have been intentional, but I have a hard time not seeing Justice Gorsuch’s distancing of the dicta in Hodari D. as setting up a rationale for ditching some of Justice Scalia’s other dicta in Heller.
Finally, the Torres justices disagreed over the merits of certain kinds of decisional rules. This topic—how courts should decide challenges—is one of the major Second Amendment questions the Court will likely settle in Corlett, and Torres offers some hints of how certain justices view their task. The majority, for example, adopted the mere-touch rule at least in part to avoid difficult line-drawing problems. (One is reminded of Justice Scalia’s strong preference for rules over standards on similar grounds.) Interestingly, Justice Gorsuch rejects this rationale: “[I]f efficiency in judicial administration is the explanation [for the majority’s decision], it is a troubling one. Surely our role as interpreters of the Constitution isn’t to make life easier for ourselves.” (p.22). And he cites after that statement a law review article critical of Justice Scalia’s preference for rules.
The Torres case not only generates a new rule of criminal procedure, but also provides insight into jurisprudential questions that will no doubt influence the outcome and rationale for the Court’s upcoming decision in Corlett.
 One odd feature of Justice Gorsuch’s opinion to my ears is his derision for the majority’s suggestion that the standard for seizing a person and seizing an item might be different. Relying on the text of the Fourth Amendment alone, he emphasized that the provision applies the same word, “seizure,” to the entire list of covered features—“persons, houses, papers, and effects.” But just a few weeks ago, Justice Gorsuch joined the majority’s opinion in Caniglia v. Strom, which strongly suggested that the standard for what is reasonable with respect to a search/seizure inside a home may be different from that applied to, say, a car search. As I noted earlier this week, Caniglia sets up that contrast “even though the Fourth Amendment’s text makes no distinction between one’s home and her person, papers, or effects.”