Fredrick E. Vars is the Ira Drayton Pruitt Sr. Professor of Law at the University of Alabama School of Law. He is the co-author with Ian Ayres of Weapon of Choice: Fighting Gun Violence While Respecting Gun Rights (Harvard 2020). Vars’s voluntary gun purchase delay proposal has been enacted in three states for the purpose of reducing suicide rates. DISCLOSURE: In United States v. Rahimi, Vars joined the “Brief Amicus Curiae of Public Health Researchers and Lawyers.” The views expressed in this blog post are his alone.
The Supreme Court’s Second Amendment jurisprudence is based on nothing. That may sound harsh, but it’s true. The Bruen opinion is all about when and how to find meaning in blank spaces. After Bruen, all that matters is not what happened in the past, but what didn’t happen—specifically, the fact that lawmakers didn’t enact a certain type of gun regulation. This form of reasoning can sometimes be persuasive, but far less often than the Court suggests.
Literature provides a classic example. In one famous mystery, detective Sherlock Holmes announces that an important piece of evidence is “the curious incident of the dog in the night-time.” A confused listener points out that “[t]he dog did nothing in the night-time.” “That was the curious incident,” Holmes responds. Holmes later explains that the dog’s failure to bark means that the intruder must have been well known to the dog. In philosophy, this is sometimes called drawing an inference from “a negative fact.”
There is no question that the Court’s new Second Amendment test takes this form. Under the test, modern gun regulation is constitutional if and only if there is a sufficiently analogous historical precursor. Legislative inaction, therefore, defines the scope of the Second Amendment. The key question is not what past legislatures did, but rather what past legislatures did not do.
Bruen’s reliance on legislative inaction is surprising. Before Bruen, the Supreme Court unanimously rejected this form of argument: “In ascertaining the meaning of a statute, a court cannot, in the manner of Sherlock Holmes, pursue the theory of the dog that did not bark.” The late Justice Antonin Scalia went further, arguing that it is impossible to “draw any conclusions regarding [legislative] intent from the failure to enact legislation” (emphasis added). Justice Scalia explained that failure to pass a law can mean many different things: “(1) approval of the status quo, . . . (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo, or even (5) political cowardice.” The six “textualist” Justices in the Bruen majority have been “similarly critical” of relying on legislative inaction.
Of course, the Supreme Court is allowed to change its mind. However, under Bruen, drawing inferences from legislative inaction is not merely allowed in Second Amendment cases, it is required in essentially all Second Amendment cases. No one expects lawmakers to pass laws aimed at problems that either don’t exist or do exist but aren’t considered important enough to address with legislation. Therefore, legislative inaction with respect to a non-existent or unrecognized problem tells us nothing about the meaning of other laws or constitutional provisions.
The Bruen opinion generally acknowledges this point but does not understand the implications. The Court requires an analogous historical firearm regulation “when a challenged regulation addresses a general societal problem that has persisted since the 18th century.” That’s way too often. “Bullets hitting people” has been a “general societal problem” since the invention of firearms. Essentially every gun law addresses that problem, so every gun law now requires an analogous historical precursor. Or at least that is how some lower courts have interpreted Bruen.
Thankfully, there is an easy fix. The “general societal problem” language in Bruen is dicta. That’s because the challenged statute addressed gun-carrying in public. There were many historical restrictions on carrying firearms in public, so lawmakers were aware of the issue and thought it was important enough to justify regulation. That essential premise is missing in the Court’s next big Second Amendment case, United States v. Rahimi, in which an opinion is expected this summer. At issue is the federal ban on firearm possession by individuals subject to domestic violence restraining orders. The Fifth Circuit held that this ban is unconstitutional because there were no analogous laws at the Founding or during the Reconstruction era.
The briefs and oral argument in Rahimi focused primarily on the question of how closely historical laws must match the challenged modern law. The government argues that there is a tradition of prohibiting gun possession by “dangerous” people broad enough to include individuals subject to domestic violence restraining orders. This “dangerous person” exception is evidenced by historical bans on other groups of people perceived to be dangerous (like enslaved people and Native Americans), the argument goes. The Court may accept this invitation to clarify what it means for a historical law to be “relevantly similar” to a challenged modern law. How close is close enough?
There is another—logically prior and largely ignored—way for the Court to decide Rahimi. The Court could and should call off the search for historical analogies when the absence of them is meaningless. As explained above, legislative inaction is relevant only if the legislature believed that there was a good reason to enact a firearm law. That wasn’t true with respect to domestic violence.
This country did not take domestic violence seriously until well into the 20th Century. To the contrary, the Anglo-American common law tradition recognized a husband’s right to “chastise” (corporally punish) his wife. Some states passed statutes eliminating this so-called right of chastisement in the late 19th Century but protected wife beaters with formal and informal immunities for another century. Only in the 1970s did lawmakers begin to meaningfully address this issue. Even today, over one-third of women report having experienced physical violence or stalking by an intimate partner.
There is an even more fundamental explanation for the lack of historical gun laws addressing domestic violence. Even if lawmakers cared about domestic violence, they wouldn’t have responded with a gun law. In the relevant time periods, very few spouses used guns to kill each other. As historian Randolph Roth has noted, “Family and household homicides—most of which were caused by abuse or simple assaults that got out of control—were committed almost exclusively with weapons that were close at hand,” which were not loaded guns but rather “whips, sticks, hoes, shovels, axes, knives, feet, or fists.” Today, nearly two-thirds of intimate partner homicides involve a gun. Therefore, there is simply no basis to consider historical statutes, much less the absence of historical statutes, to define the scope of the Second Amendment.
Sherlock Holmes knew better. The dog’s failure to bark was probative only because Holmes knew from other evidence that a human intruder had entered the stable at night and walked right past the dog. Two stable boys were sleeping nearby and heard nothing. The dog had behaved aggressively toward a stranger on another occasion. This was not a mere “beagle” whose bark may have been too quiet to wake up the two boys; this was a mighty “hound.” Unlike the Court, Holmes understood that a negative fact is meaningful only under very special circumstances.
The absence of a specific type of law addressing a “general societal problem” tells us nothing about the Second Amendment. Even if there were such a problem in the relevant past, legislatures may have been unaware of the problem, perceived the problem differently, thought the problem was not important enough to justify legislation, or adopted a solution that didn’t mention guns. The Supreme Court in Rahimi should clarify that legislative inaction can only be relevant if the challenged firearm regulation responds to the “same, serious, and well-recognized problem” that existed at the Founding or during the Reconstruction era.
My dog, Henry, barks frantically at everyone who approaches our house, except the mailman. As I write this, Henry is looking intently out the front window. He is not barking. The mailman must be approaching.
