Conservative Bolsheviks

The US Supreme Court's strange relationship with history.

This newsletter’s remit is neither politics nor law, but I have to write a little something about the three bombshell United States Supreme Court decisions. (For you Yanks: “Remit” is a Britishism for “purview.” It sounds cooler than “purview.” You should give it a try.)

In part, that’s because I have a weakness for politics, to which I occasionally succumb, and a law degree, which gives me a legal itch now and then. But the remit of this newsletter is history, and history was important to all the decisions. And central to one.

That’s because the conservative justices love history. They rattle on about American history and tradition at great length, and quite explicitly disdain anything that doesn’t square with it. Which is the sort of thing you’d expect from conservatives, after all.

And yet, in their three decisions, these conservative justices conserved very little. In the abortion decision, they threw out a precedent almost half a century old. In the prayer-in-school decision, they tossed a judicial test that was a little older. And in the gun control decision, they junked a law that was more than a century old.

There hasn’t been this much old stuff torn out and torched since the Bolsheviks stormed the Winter Palace.

The Supreme Court releases its decisions.

So how did reverence for history and tradition result in conservative judges dancing around a bonfire as stare decisis burned?

Don’t worry, I’m not going to get into detailed legal analysis. Instead, I’ll zero in on the gun control decision — New York State Rifle & Pistol Association v. Bruen — and look at the dissenting opinion of Justice Stephen Breyer. In my humble opinion, it shows what’s really going on here.

The conservative justices don’t really love and revere history. They merely find history useful. Not as a source of illumination in the dark to find the path. They know exactly where they want to go. No, history is only useful to them as a means of obscuring the fact that they are turning their policy preferences into law with neither democratic mandate nor legal justification.

For the conservative justices, history is, to paraphrase Clausewitz, politics by other means.

Aside from the outcome, the most stunning thing about New York State Rifle & Pistol Association v. Bruen — which involved a state law forbidding people from carrying guns in public unless licensed by the state — is that the majority changed how judges should analyze the constitutionality of gun control regulations. Formerly, judges were expected to consider whether the regulation in question is similar to the way guns have been regulated in the past. If so, it’s fine. If not, judges would consider if the regulation addresses a pressing governmental interest. That means looking at why the regulation was passed, how it functions, and relevant social context like crime rates. But the conservative majority chopped the second element. Now, the only thing that matters is whether the law is in line with American history and tradition.

As Breyer noted:

It gives the State no opportunity to present evidence justifying its reasons for adopting the law or showing how the law actually operates in practice, and it does not so much as acknowledge these important considerations.

But it’s done now. Were there laws like this in the past? If so, it’s acceptable. It not, it’s out. That’s the test.

Note that the law in New York State Rifle & Pistol Association v. Bruen traces back all the way to 1911. One would think that alone makes it part of “historical tradition,” but, no, the conservatives apparently think of the entire 20th century as nothing but the backyard of the present. History and tradition must run much deeper or they don’t count.

Breyer asks the obvious question:

How can we expect laws and cases that are over a century old to dictate the legality of regulations targeting ‘ghost guns' constructed with the aid of a three-dimensional printer? Or modern laws requiring all gun shops to offer smart guns, which can only be fired by authorized users? Or laws imposing additional criminal penalties for the use of bullets capable of piercing body armor?

New York, 1796: “Be it known that laser sights and hollow-point ammunition are forbidden within the city. Also, no texting while driving.”

But set aside the weird idea that 21st century technology can only be regulated if similar regulations existed in the 18th century. There are more basic problems.

The Court’s insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment thus raises a host of troubling questions. Con- sider, for example, the following. Do lower courts have the research resources necessary to conduct exhaustive historical analyses in every Second Amendment case? What historical regulations and decisions qualify as representative analogues to modern laws? How will judges determine which historians have the better view of close historical questions? Will the meaning of the Second Amendment change if or when new historical evidence becomes available? And, most importantly, will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?

On that last, critical point, Breyer cites an academic paper with a brutal phrase: “law office history.” It defines “law office history” as “a results-oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion.”

In movies and novels, this is called foreshadowing.

Breyer illustrates the difficulty of the history-is-all approach by looking at the watershed 2008 case — Heller — in which the conservative majority fundamentally changed the court’s interpretation of the Second Amendment, making it a protection of an individual’s right to own and use guns for self-defence.

Consider Heller itself. That case, fraught with difficult historical questions, illustrates the practical problems with expecting courts to decide important constitutional questions based solely on history. The majority in Heller undertook 40 pages of textual and historical analysis and concluded that the Second Amendment’s protection of the right to “keep and bear Arms” historically encompassed an “individual right to possess and carry weapons in case of con- frontation”—that is, for self-defense. Justice Stevens’ dissent conducted an equally searching textual and historical inquiry and concluded, to the contrary, that the term “bear Arms” was an idiom that protected only the right “to use and possess arms in conjunction with service in a well-regulated militia.” I do not intend to relitigate Heller here. I accept its holding as a matter of stare decisis. I refer to its historical analysis only to show the difficulties inherent in answering historical questions and to suggest that judges do not have the expertise needed to answer those questions accurately.

Since Heller was decided, experts have searched over 120,000 founding-era texts from between 1760 and 1799, as well as 40,000 texts from sources dating as far back as 1475, for historical uses of the phrase “bear arms,” and they concluded that the phrase was overwhelmingly used to refer to “‘war, soldiering, or other forms of armed action by a group rather than an individual.’” (“Non-military uses of bear arms in reference to hunting or personal self-defense are not just rare, they are almost nonexistent” … reporting 900 instances in which “bear arms” was used to refer to military or collective use of firearms and only 7 instances that were either ambiguous or without a military connotation).

These are just two examples. Other scholars have continued to write books and articles arguing that the Court’s decision in Heller misread the text and history of the Second Amendment.

I repeat that I do not cite these arguments in order to relitigate Heller. I wish only to illustrate the difficulties that may befall lawyers and judges when they attempt to rely solely on history to interpret the Constitution. In Heller, we attempted to determine the scope of the Second Amendment right to bear arms by conducting a historical analysis, and some of us arrived at very different conclusions based on the same historical sources. Many experts now tell us that the Court got it wrong in a number of ways. That is understandable given the difficulty of the inquiry that the Court attempted to undertake. The Court’s past experience with historical analysis should serve as a warning against relying exclusively, or nearly exclusively, on this mode of analysis in the future.

Every historian I’ve ever met would vigorously shake his or head head at that statement. History is complicated. The more you know, the more complicated it gets. The idea that we can read some history and come up with crisp, clear, unchanging answers is the sort of thing people who know nothing about serious historical research think.

Inevitably, what happened in Heller happened again in this case: The majority decision did a long and detailed analysis of firearms regulation going back all the way to 13th century England and concluded that the New York law is not in line with history and tradition.

Breyer responded with an equally long and detailed analysis of firearms regulation going back all the way to 13th century England. And came to the opposite conclusion.

The historical examples of regulations similar to New York’s licensing regime are legion. Closely analogous English laws were enacted beginning in the 13th century, and similar American regulations were passed during the colonial period, the founding era, the 19th century, and the 20th century. Not all of these laws were identical to New York’s, but that is inevitable in an analysis that demands exami- nation of seven centuries of history. At a minimum, the laws I have recounted resembled New York’s law, similarly restricting the right to publicly carry weapons and serving roughly similar purposes. That is all that the Court’s test, which allows and even encourages “analogical reasoning,” purports to require. See ante, at 21 (disclaiming the necessity of a “historical twin”).

So how, then, did the majority conclude that New York State’s century-old law is not in line with American history and tradition? By deploying the sort of reasoning that makes people hate lawyers.

As Breyer wrote:

In each instance, the Court finds a reason to discount the historical evidence’s persuasive force. Some of the laws New York has identified are too old. But others are too recent. Still others did not last long enough. Some applied to too few people. Some were enacted for the wrong reasons. Some may have been based on a constitutional rationale that is now impossible to identify. Some arose in histori- cally unique circumstances. And some are not sufficiently analogous to the licensing regime at issue here. But if the examples discussed above, taken together, do not show a tradition and history of regulation that supports the valid- ity of New York’s law, what could? Sadly, I do not know the answer to that question. What is worse, the Court appears to have no answer either.

A specific example of the majority’s sophistry? Peep this:

The relevant English history begins in the late-13th and early-14th centuries, when Edward I and Edward II issued a series of orders to local sheriffs that prohibited any person from “going armed.” Violators were subject to punishment, including “forfeiture of life and limb.” Many of these royal edicts contained exemptions for persons who had obtained “the king’s special licence.” Like New York’s law, these early edicts prohibited public carriage absent special governmental permission and enforced that prohibition on pain of punishment.

Sure sounds like an analogous regulation, doesn’t it? And there’s no saying it’s too modern to count. But the majority concluded it’s irrelevant. Why?

Because the law is too old to be relevant. (Why? No reason given.) Besides, while it may have regulated weapons, it didn’t regulate firearms, which hadn’t been invented yet. (But 21st century technology can only be regulated if there were 18th century regulations doing the job? Anachronism only works for the majority, apparently.) And the law was enacted at a time of “turmoil” in the countryside, when brigands roamed about, committing assaults and murders. To which, Breyer responds:

But it would seem to me that what the Court characterizes as a “right of armed self-defense” would be more, rather than less, necessary during a time of “turmoil.”

That’s the polite, very judicial way of saying, “your argument makes no sense whatsoever and it couldn’t be more obvious you’re just making stuff up to dismiss whatever doesn’t fit.”

For all the length and detail of the majority’s journey through history, it amounts to nothing more than a vast exercise in confirmation bias: That which supports the conclusion reached before the inquiry began is compelling evidence; that which disputes the conclusion is weak and irrelevant. For some reason. Too old. Too new. Too brief. Too different. Too … something. When you have a group of high IQ judges with Ivy League law degrees, years of legal work, and a determination to advance what they sincerely believe to be a righteous cause, there is always something.

This is not history. This is people rummaging around in the archives looking for material they can cobble together to make it appear they have reasoned their way to a conclusion they had in mind all along. Or to put it in Stephen Breyer’s words, the majority has created an analytical framework that permits “judges to reach the outcomes they prefer and then cloak those outcomes in the language of history.”

Now, if this all sounds too cynical, let me be clear that I actually don’t doubt the conservative justices’ sincerity any more than I doubt Stephen Breyer’s. In fact, I’m pretty sure they would scoff at, or be offended by, what I’ve written here.

Because that’s basic psychology. There is no sign in the brain that flashes red — CONFIRMATION BIAS ENGAGED! — when confirmation bias is at work. The process feels reasonable, its conclusions true. And an accusation of bias feels outrageous. Biased!? Me?! Heaven forfend.

It’s a human thing. Everything I’ve described here is actually fairly routine when people turn to history with the intention of advancing a point in the present. Doing better is less common. That takes awareness of the trap, determination to avoid it, and — hardest of all — a willingness to accept the complexity and uncertainty that inevitably follow when the historical record is looked at in full without preconceptions driving the analysis. It’s a tough standard. Even famous historians sometimes fail to meet it.

The classic case is Arnold Toynbee, who spent much of his life pursuing evidence to support his belief that civilizations rose and fell in predictable cycles. Toynbee was smart and energetic, so he produced a vast mountain of such evidence and published it as a long series of books called A Study of History. It became a global bestseller. And yet most historians at the time didn’t take it seriously and it has had no influence on subsequent scholarship — because it was obvious the whole thing was the product of exactly this sort of “conclusion-based evidence making.”

As the historian A.J.P. Taylor bluntly put it, “the events of the past can be made to prove anything if they are arranged in a suitable pattern, and Professor Toynbee has succeeded in forcing them into a scheme that was in his head from the beginning.”

Ditto the conservative justices of the United States Supreme Court.