GianCarlo Canaparo, Curtis B. Herbert
It’s unusual to see news articles about disagreements between Supreme Court Justices, especially with phrases like “fed up,” “fighting words,” and “took the gloves off” in the headlines. It’s even more unusual when the dispute in question is between two Justices of the same ideological bent. And yet in recent weeks that’s what has occurred with Justices Amy Coney Barrett and Clarence Thomas.
This term, Barrett and Thomas have criticized each other’s use of history in two cases: Vidal v. Elster and United States v. Rahimi. In short, Barrett requires more proof of a historical practice, and Thomas requires a tighter historical analogy.
Elster and Rahimi show the two originalists’ different approaches. In Rahimi, the Court upheld a law that disarmed anyone subject to a certain kind of restraining order. Under its recent Bruen precedent, the Court asked whether that law—18 U.S.C. §922(g)—was analogous to historical restrictions on firearms.
The majority said yes, pointing to a historical tradition of disarming dangerous people. It focused on two types of historical laws: surety laws and affray laws. Surety laws gave officials the power to force potentially violent or abusive gun owners to post a bond. The gun owners would forfeit their bonds if they later committed any crimes. Affray laws took guns away from people who used them to intimidate others. Those two types of laws, the Court reasoned, were analogous to the law disarming people subject to protective domestic violence orders.
Barrett said the Court chose “just the right level of generality” for its analogy. Thomas didn’t dispute that there was a tradition of surety and affray laws, but he didn’t think they were analogous to §922(g). Although §922(g) criminalized possession of weapons by dangerous people, he said, surety laws let individuals keep their firearms if they posted bond. Surety and affray laws did establish a tradition, » Read More
https://www.heritage.org/courts/commentary/understanding-justice-thomas-and-justice-barretts-fight-over-history