Scholarship Highlight: Historical Tradition as Living Constitutionalism, and Loyalty Oaths in the Immigration Context
The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.
In a new article in the Harvard Journal of Law & Public Policy, Reva Siegel “interrogate[s] the constraint justification for the history-and-tradition decisions of the Roberts Court.” She argues that the originalist Supreme Court justices are “quite self conscious about the exercise of discretion, and the expression of value, in their appeals to the past.” And Professor Siegel uses Rahimi as an example of how, in her view, “[t]he shift to low levels of generality to justify changes in the law conceals rather than constrains judicial discretion and values-based reasoning,” thus constituting “yet another form of evolving interpretation.”
Second, in a short essay forthcoming in the Columbia Law Review Forum, Deep Gulasekaram decries the use of historical laws disarming those who refused to take a loyalty oath or were otherwise suspected of disloyalty to the country as analogues in modern challenges to immigration-based gun regulations. Professor Gulasekaram observes that these “loyalty-based disarmament laws have borne the weight of justifying § 922(g)(5) [the federal prohibition on undocumented immigrants possessing firearms] under Bruen”—for a summary of one such decision, see this recent litigation highlight. He argues, however, that the immigration restriction is “divorced from any finding of existential danger to the United States” and that “immigration exceptionalism in the obscure and seemingly innocuous case of unlawfully present immigrants' gun possession portends a wider gulf in fundamental constitutional guarantees for much broader swathes of the populace.”
Reva Siegel, The “Levels of Generality” Game, or “History and Tradition” as the Right’s Living Constitution, 47 Harv. J. L. & Pub. Pol’y (2024)
Abstract:
Why does the Roberts Court appeal to history and tradition as reason to change the law? We see this logic in Dobbs v. Jackson Women’s Health Organization (reversing the abortion right) and in New York State Rifle & Pistol Ass’n v. Bruen (striking down gun-licensing restrictions under the Second Amendment). This Essay shows that what explains the turn to history in these cases is not an identifiable method that directs interpreters how to decide contested constitutional questions but instead a mode of justification. Both Dobbs and Bruen claim that fidelity to the nation’s history and tradition in interpreting the Constitution will constrain judicial discretion as traditional forms of doctrine or openly value-based judgment cannot.
For some years now, I have analyzed the value-laden claims on the past that Americans make as they are arguing about the Constitution as “constitutional memory” claims. As this Essay demonstrates, my account of constitutional memory poses a direct challenge to originalism’s judicial-constraint thesis. What appear to be positive, descriptive claims about the past in constitutional argument are often normative claims about the Constitution’s meaning. I analyze this dynamic in the Justices’ decades-long debate over levels of generality: a judge who employs the most specific level of generality in describing past practice can conceal rather than constrain value-based judgment. And I illustrate this logic at work in United States v. Rahimi, a Second Amendment case before the Supreme Court this Term, in which the Fifth Circuit applied Bruen’s history and tradition analysis to hold that 18 U.S.C. § 922(g)(8), a federal law that disarms persons subject to domestic-violence restraining orders, is unconstitutional under the Second Amendment.
The Essay argues that we are all living constitutionalists now—but, crucially, not all living constitutionalism is the same. A conclusion identifies reasons why the Justices who present appeal to the past as claims of judicial constraint may engage in anti-democratic forms of living constitutionalism.
Pratheepan Gulasekaram, Loyalty Disarmament & the Undocumented, Colum. L. Rev. F. (forthcoming 2024)
Abstract:
Over the past year, “loyalty-based” gun laws have taken on importance they have not had since the Revolutionary period when some colonial governments sought to disarm sympathizers to the British Crown. This renewed interest is the product of the Supreme Court’s NYSPRA v. Bruen decision, which directed courts to seek historical analogues when assessing the constitutionality of current gun regulations. Post-Bruen, those Founding-era restrictions have been especially prevalent in Second Amendment cases challenging the federal prohibition on possession by unlawfully present noncitizens. On closer examination, however, this analogy is ill-fit. Indeed, to the extent historical laws disarming British Loyalists remain relevant, they may presage other status-based prohibitions in § 922(g) conditioned on breaking oaths and allegiance to the United States. Courts are mistaken however, to equate the disarmament of those who were existential threats to the emerging Republic, to present day unlawfully present noncitizens, a status that did not exist until the late 19th or mid-20th centuries. The stakes of this misguided comparison are high. Not only does it threaten access to a fundamental right under Bruen’s methodology, but more importantly it portends diminished and segregated constitutionalism for noncitizens across the board.