Following the 2008 decision in District of Columbia v. Heller, Hadley Arkes wrote that Justice Scalia’s putatively originalist opinion might have appealed to “something resembling—brace yourself—‘natural law.’” After all, Scalia’s look into the text and history of the Second Amendment revealed that it codified a right that preexisted the Constitution. Arkes queried, “Was he suggesting then a right so ‘natural’ that it was not brought into being or created by the ‘positive law,’ the law that is merely posited or enacted in any place?” The majority opinion had all the trappings of originalism, but at the heart of its historical analysis was the Founding-era acceptance of, as Blackstone put it, “the natural right of resistance and self-preservation.”
A similar observation might be made about the recent Supreme Court decision in United States v. Rahimi. In Rahimi, a case concerning a federal statute that prohibits possession of firearms by certain classes of individuals, the Justices devoted much opinion-space to debating the nature of originalism and the role of history and tradition in originalist analysis. They discussed which periods of history can validly be considered, and when the specific details of a tradition do or do not decide original meaning. But the result in Rahimi was not dictated by a historical tradition per se, but by a principle underlying a set of our traditions. And this type of reasoning—of looking through the history to some intelligible guiding principle that informed the acts of positive lawmaking—looks more like the classical reasoning common to the Founding-era than the purely originalist analyses of today. Indeed, perhaps the Justices felt they needed to explain why their individual views on originalism supported the majority opinion precisely because the majority attempted to cram classical natural law intuitions into a positivist-originalist analytical framework. If so, then Rahimi presents a unique moment for judges and lawyers, opening the door to considerations of the natural law principles that underlie our legal system.
To understand Rahimi’s natural law pedigree, some background is in order. Decided two years prior, NYSRPA v. Bruen marked a sea change in Second Amendment litigation. The lower courts’ two-part interest balancing test was swept aside and replaced with a regime in which “the government must demonstrate that the [challenged] regulation is consistent with this Nation’s historical tradition of firearm regulation.” Under the strict Bruen test, whether a law survives scrutiny depends on whether there existed a sufficiently similar regulation at the Founding. Historical fact is king under Bruen.
Then comes Rahimi. Zackey Rahimi was alleged to have committed a series of infractions with a firearm, including firing at his girlfriend while she fled after an abusive episode, firing into the air at a restaurant, and discharging a firearm during several incidents of road rage. Rahimi’s girlfriend obtained a domestic violence restraining order against him after the first incident. As a result, Rahimi was barred from possessing a firearm by 18 U.S.C. § 922(g)(8). Nevertheless, he maintained possession of firearms and continued his string of dangerous behavior. The police eventually searched his residence and found both firearms and a copy of the restraining order. Rahimi was indicted for violating Section 922(g)(8), and he moved to dismiss the indictment under the theory that the law violated his Second Amendment rights. The case eventually found its way to the Supreme Court.
In analyzing the issue, the Court declined to apply a rigid formulation of the Bruen test. It did not parse the intricacies of the government’s historical analogues. Nor did discrete differences between those analogues and Section 922(g)(8) disqualify them as historical support for the law. Instead, the Court analyzed a set of historical laws together to ascertain their underlying motivating principle—something similar to what Blackstone called the laws’ “reason and spirit.”
The Court expressed the principle as an abstraction of history, and several Justices went through pains in their concurrences to explain why this subtle step from Bruen was justified on originalist grounds. The originalist angle is one way to look at the Court’s opinion. But I propose another. The jurisprudential debate among the originalist Justices might have been caused by something else: that the majority opinion stretched beyond the history itself in search of some fundamental logic within the law. And it was precisely because of this un-originalist move that the Justices felt they needed to devote significant verbiage to explaining why the majority opinion was properly originalist.
That is not to say that the Court swept aside our historical traditions in order to contrive a principle. Natural law principles can be exemplified through historical tradition. Indeed, classical legal reasoning views positive law as an implementation of natural principles. Statutes provide concrete detail to broader principles. And in the classical conception of courts as law-finder (as opposed to law-maker), those principles form one source of law from which courts can draw. So examining historical laws and cases is a great way to ascertain the principles that motivate a given tradition. As I have argued elsewhere, our tradition of firearms regulation stands on an underlying natural law principle of safety. That principle is implemented, on the one hand, by preserving the right to own and carry arms sufficient for defense of self and community, and on the other, by historical regulations that limit abuse of the right or tangential harms. Examples of such regulations include laws punishing misconduct with a firearm or laws regulating the safe storage of gunpowder. The principle of safety can be seen within those historical regulations. And since both the Second Amendment and the related regulatory tradition are built on that principle, understanding either requires an examination of it.
This was, in practice, the Court’s reasoning. The Court began by acknowledging that the Second Amendment right is a “fundamental right[] necessary to our system of ordered liberty.” It then explained that, in delineating when regulations are consistent with that right, courts are not trapped into only upholding modern laws that mirror Founding-era ones. Instead, the law must simply “comport with the principles underlying the Second Amendment.”
To ascertain the relevant principle, the Court turned to two sets of laws that originated in England and survived the Founding. The first were surety laws, which “authorized magistrates to require individuals suspected of future misbehavior to post a bond.” If bond was not posted, the individual would be jailed; if they posted bond but broke the peace, the bond would be forfeit. Notably, surety laws were historically used in both cases of domestic violence and suspected misuse of firearms. The second historical tradition involved “going-armed” laws, which punished those who went armed in public “to the terror of the people” resulting in imprisonment and consequent disarmament.
The Court viewed these laws together with the Second Amendment’s role in “defending life . . . [and] liberty.” It reasoned that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed” without offending that “fundamental right.” This conclusion is consistent with the general natural law-view, inherited by the Founders, that the exercise of natural rights came with certain moral duties. In this case, the right to bear arms for defense has a corollary duty not to use those weapons to initiate violence against others. Doing so is an abuse of the right, and so can be regulated. The historical tradition the Court analyzed—the surety and going-armed laws—represented an implementation of that same idea. Since Section 922(g)(8) similarly applied to temporarily disarm someone deemed a threat to another, it fit comfortably within the principle identified by the Court. Rahimi’s challenge failed.
Although the Court in Rahimi employed originalist and historical language, it did not decide the case on the face of the historical evidence. Instead, it used that history to extract a fundamental principle—one that looks remarkably like the latter aspect of the safety principle described above. The Court then read the Second Amendment in light of that principle to hold that Section 922(g)(8) did not violate it facially or as applied to Rahimi. This appeal to “the principles underlying” a law as a means to understand it is standard classical reasoning. Thinkers from Aquinas to Alexander Hamilton employed it. So it is originalist in the sense that the Founders did it. But it is also so much more than that. The appeal to a law’s underlying principles is an implicit recognition of a certain fundamental logic to the law that is visible in our tradition, but not defined by it.
Rahimi reveals this in the Second Amendment context, but ultimately, any appeal to principles underlying the Founding tradition necessarily involves examining the natural law reasoning of the era. After all, “natural law philosophy . . . was in the very air breathed in England and America in the eighteenth century.” Our traditions were formed from rich conceptions of the natural law and consequent natural rights. Individual Founders may have had differing understandings of the philosophy, but the purchase that it had in the minds of the Founders is undeniable.
Consider the First Amendment’s reference to the free exercise of religion. From where did our tradition of religious free exercise arise? A starting point in originalist analysis might be the writings of the Founders. James Madison—the author of the Bill of Rights—wrote in 1785 that we have a duty, “precedent, both in order of time and in degree of obligation, to the claims of Civil Society,” to worship the Creator in our own ways. As a duty precedent to civil society, it could have only arisen from those obligations naturally imposed on all human beings—the natural law. Other Founders shared similar views.
Understanding our tradition of religious exercise therefore requires understanding the natural law philosophy of the Founding. And the same is true any time we attempt to extract a fundamental principle from our Founding traditions, for the principles that motivated Founding-era lawmaking were natural law principles. One could call this natural-law-reasoning-through-originalist-incorporation, but at the end of the day, a court is interpreting a law in light of the natural law principles that were brought to the Founders by classical and enlightenment thinkers. The Rahimi Court’s approval of this appeal to our tradition’s underlying principles therefore presents a natural law moment—an opportunity for lawyers and judges to look through our historical traditions to their underlying principles.
In Part Two of this essay, I will explain how lawyers and judges can apply the logic of Rahimi in future cases to incorporate natural law reasoning.
