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'Worship of the Holy Framers Offers Us Nothing to Deal With the Problems We Have Today' Janine Jackson ([link removed])


CounterSpin interview with Scott Burris on US v. Rahimi

Janine Jackson interviewed Temple Law School's Scott Burris about United States v. Rahimi for the October 17, 2023, episode ([link removed]) of CounterSpin. This is a lightly edited transcript.

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CBS: Supreme Court gun case could reverse protections for domestic violence survivors. One woman has a message for the justices.

CBS News (11/7/23 ([link removed]) )

Janine Jackson: This week, the Supreme Court heard the case United States v. Rahimi, which asked whether existing law that prohibits the possession of firearms by persons subject to certain domestic violence restraining orders violates the Second Amendment.

Media headlines were appropriately enough focused ([link removed]) on domestic violence, and what it might mean if the Court decided that those who repeatedly assault and threaten to shoot women, as did Zackey Rahimi, or who fire shots in the air when their friend's credit card is denied at Whataburger, as did Zackey Rahimi, should perhaps be denied further access to guns. An appeals court, the infamous Fifth Circuit ([link removed]) , had struck down ([link removed]) the law because they said they couldn't find evidence of the Founding Fathers talking about that sort of thing.

Well, past the headlines, virtually all media accounts recognized that whatever is decided in Rahimi, that way of thinking about the law and its application is a problem.

We're joined now by Scott Burris. He's professor at Temple Law School and Temple School of Public Health, and he directs the Center for Public Health Law Research ([link removed]) . He joins us now by phone from Philly. Welcome to CounterSpin, Scott Burris.

Scott Burris: Good day!

JJ: As reporting has acknowledged, you can't make sense of Rahimi without talking about Bruen ([link removed]) , or New York State Rifle & Pistol Association v. Bruen, decided in 2022. And I want to ask you to explain what happened there that is shaping events now, but I want to frame it a little bit. Because you address gun violence as a matter of public health—appropriately to my mind, but not necessarily the most common framework, and I think there's even a bias against researching ([link removed]) it that way. But what did Bruen do, and especially in terms of our ability to address gun violence as a public health concern?
Politico: Clarence Thomas Created a Confusing New Rule That’s Gutting Gun Laws

Politico (7/28/23 ([link removed]) )

SB: You might say that Bruen represents the reason why Clarence Thomas ([link removed]) has stayed on the Supreme Court for all these years, waiting for the majority to change, because in Bruen, he finally gets to do I think what he as a jurisprude has long wanted to do, and that is to put originalism, or a version of originalism, at the center of constitutional interpretation. He wants us to ask, well, what did the Framers think of this particular problem, and what would they have thought of this particular legal solution? And assuming he could figure the answer out to either of those questions, which he feels quite confident judges can, that's the standard we use to see whether that regulation today should be allowed to stand.

JJ: So, I mean, is that as dumb as it sounds? The Constitution doesn't say anything about domestic violence, so, oops!

SB: If you go back and ask the Framers, what do they think about a guy shooting off an automatic pistol at a Whataburger after he’s had trouble with his credit card and then gets into a car crash, they literally would not understand what you were talking about. None of those things existed.

And, of course, as a group of half slave-owning, pretty much all wealthy white men in 1789, domestic violence was not a concept that would have had any meaning to them, even if they could associate it with anything that was going on in their time.

So if we want to control the modern risks of guns, and the many ways those risks ripple out through society, through various forms of violence, and also of course suicide and so on, “we are limited to what the Framers would have decided was bad and what solutions they would have picked” is limiting us to a very few regulations.

And that is in part the goal. One of the things that originalism does, like the companion doctrine of the Clear Statement Rule ([link removed]) in administrative law that the Court has adopted, is to make it very difficult to pass laws or issue regulations that deal with modern problems.

It's meant to do that in the belief, I suppose, if I'm being charitable, that somehow the modern regulatory state that grew up with the modern world has somehow perverted or polluted the core idea of the United States as it was articulated by the Framers in the 18th century. That's the nice way to think about why this is happening.

The other context you might put this in is the 50-year war ([link removed]) of industry and the right to hobble government and to free business from regulation, no matter how necessary and no matter how sensible.
Regulatory Review: One Year On, Bruen Really Is As Bad As It Reads

Regulatory Review (8/2/23 ([link removed]) )

JJ: And it seems opportunistic, in the sense that the Constitution or the Framers didn't say that corporations' political spending ([link removed]) was the same thing as free speech, but somehow it's OK to interpret that for a modern era. You said ([link removed]) , it's “historicism, not history.” There's something meaningful there, right?

SB: I always try and be fair, like the way I'd want a Supreme Court justice to act. So we have to say that there is no perfect way of interpreting a legal text. If you interpret from history, whether you're talking about legislative intent in a statute, or the Framers' intent in the Constitution, you're going to be making a kind of guess, and one hopes that you make that guess as thoughtfully and carefully and in as unbiased a way as possible.

If you are trying to make good public policy, if you're balancing interests, as the style that dominated in the 20th century would do, you're trying to say, well, what would the spirit of the Constitution dictate today, given these new kinds of problems? But there again, too, you are trying to decide what's best, based on your best judgment.

I think that the big difference between the historical, if we can call it that, approach of Bruen, and the traditional, or modern tradition of balancing tests is that in the balancing tests we are talking about facts. How many people get killed by guns? How do those gun deaths happen? What are ways to reduce the risk of guns, or of preventing people who are dangerous from getting guns? What evidence do we have? You can be very transparent, and you can try and base your analysis on facts.

The problem with trying to imagine what was going through the Framers' mind in the 1790s, and to reconstruct a sort of history of regulation, is, first of all, what went on in their mind is purely a guess, it can never really be a fact, to the extent that they never said anything about the problems that we're talking about, and didn't know they would exist.

And the second problem is sort of a scientific problem, which is that there's just so much we don't know about old law. And to understand those old laws, what they were meant to do, how they were made, in what context they were developed and how they were understood in their context, is a lot more complicated than the Court lets on.

The Court has a kind of law clerk version of history, which is, well, I'll go back in the law library to the deepest basement, to the dustiest shelf and pick out the oldest tome, and I'll read what's there, and then I'll know the history. But we really don't know what those words meant at the time.

And of course then you have the problem that is playing out in Rahimi, which is, well, what's alike and what's not alike? If you have a law in Massachusetts that allows people to confiscate the swords of duelers in 1650 on the grounds that they're dangerous, does that mean that you can uphold the law that takes the gun away from somebody in the 21st century? That makes courts do something they don't know how to do, and that they're clearly not doing well, and that I think a lot of them don't like to do, which is pretend that they're historians, find examples in the past, and then try and understand what those examples mean for the future.

JJ: I appreciate your wanting to be careful, but it's in aid of something; it's in aid of a particular interpretation of past laws. And I say, again, the Constitution didn't say corporations' money is speech. And yet in that case, the Court is able to say, well, but yeah, but they probably would have meant this. And then in this case they say, oh, well I don't see the words written there, so we can't possibly say it.
New Republic: Clarence Thomas’s Cherry-Picked Originalism on Affirmative Action

New Republic (7/21/23 ([link removed]) )

SB: The great example of that problem of willful or unconsciously biased ([link removed]) interpretation is that the Court in Bruen wanted to say that the law has to be the law that would be acceptable in 1789, because great constitutional principles don't change. But we have to understand, in applying those principles, that the technology of guns has changed a lot. So we can recognize that there are lots of differences in guns.

The Court says, yeah, we accept that guns are more dangerous; that's just technology. But we don't accept that somehow the Framers would change their minds about guns because of those technological changes. So it's a very selective view of what changes they're willing to acknowledge and which not.

And all judges are subject to the risk that they will put their preferences ahead of a strict interpretation of the law, that their preferences will shape their interpretation, and ideally judges create rules that limit that. They create rules that require explicit factual support, and they try and create concepts that will hold them back from just imposing their will.

But if a judge really just wants to impose their will, which I sort of think is the attitude of the conservative or the Republican side of the Supreme Court, they just use the rules as however is necessary ([link removed]) to get the outcomes that they want.

And this particular rule, the historical test is just perfect for that, because it's just simply not falsifiable. Your view of history, my view of history, unless you say something absurd, like “the Framers rode fighter planes, so we know they like heavy artillery,” you can't be falsified. If you read that Bruen case, they point to all sorts of laws and they say, well, look at this law and look at that law, and that law said this and that law said that, so therefore today.... And they get their conclusion.

JJ: I'm in advance reading my email, “OK, these laws were made at a time when women weren't really people, when people of color weren't really people. And somehow we’re to say that, still, the laws that were made at that time about citizens are still the same things that we should look to the letter of them to abide by.”

SB: It's a kind of religious approach to history and the Constitution. The underlying rationale for saying it should be as the Framers said is that they were somehow given special insights, special wisdom, and they were able to not only solve all the major problems of their own day, but somehow write a document that would always be the right answer for all the conditions of the future.

And that's obviously absurd as a matter of fact. They were just a bunch of fellas, often quite imperfect, as we should be willing to admit, who made a document that was full of imperfections that we're still paying for today. The acceptance of slavery, the idea that 500,000 people in a small state should have the same Senate weight as 20 million people from a big state.

I mean, these are bad ideas. They have become bad ideas as times have changed, and a sensible society will recognize that we have to adapt the core concepts of liberty and divided government and federalism for a very different era, and we have to be open. It's not easy, but we have to be open to the discussion of how that document has to change and how the interpretation has to change, or application has to change, to face these modern dilemmas.

That is not ever going to be easy, and it's always going to be controversial, but at least it's making an effort to adapt to reality. The problem with the historical analysis and the sort of worship of the holy Framers is that it offers us nothing today to deal with the problems we have to deal with today. And it allows a sort of group of high priests to tell us, by reading the entrails or burning a sheep on the altar, what the law should be, because they have access to the mind of those saintly, dear departed Framers.

JJ: I want to ask you, do you still face resistance to the very idea of thinking about gun violence in terms of public health? I know that public health is your thing, and I know about the Dickey Amendment ([link removed]) ; we're supposed to not research gun violence as a question of public health; it's not supposed to be in that category. Talk a little bit about that question, of even talking about gun violence as a public health issue, and do you think that thinking has shifted on that?
Temple University's Scott Burris

Scott Burris: "Trying to call gun violence a public health matter is perceived on the other side as just another trick to get the guns out of our hands."

SB: There is occasionally a political fight. In fact it's an ongoing political fight over what we should call a public health issue, because of the belief that if you call it a public health issue, that makes us more likely to be willing to do something about it.

The fact is, you don't have to call it a public health issue, you just have to say it's a behavior or a set of behaviors and objects that are responsible for [48,000] deaths ([link removed]) a year—half ([link removed]) of them suicides—and that society needs, if it can, to reduce the number of deaths, the same way that we try to reduce the deaths from cars.

In fact, since the Heller ([link removed]) case, since it became out of the question to talk about banning firearms entirely, I think it makes a lot of sense to treat guns like cars. People love their cars, and cars do a lot of good, but they also do a lot of damage. They damage the environment, they get involved in crashes, they run people over, they blow up, whatever cars do.

And we are all perfectly happy with the idea that the government should try and regulate cars and their use to reduce traffic deaths. And, in fact, until the last couple of years, when probably cell phones have tilted things up, we've had a steady, really a triumphant decline ([link removed]) in car-related deaths over 25, 30 years, over 50 years, really, since Ralph Nader in the early '70s.

Guns are the same. There's no question now of taking them away, getting them out of society. People like their guns; they enjoy their guns. Some people get benefits from guns. That shouldn't be something we're so hysterical about anymore after Heller; we should be turning our attention to the question of how we make them safer, how we make sure that people who are dangerous to themselves or others can't easily get at them.

I mean, we cut traffic deaths in half, more than half, through regulation. Wouldn't it be great to have a world in which we had cut gun deaths by that amount, that we had 25,000 a year? It'd be nice not to think of that as a political question.

But the trouble with the situation now is that trying to call gun violence a public health matter is perceived on the other side as just another trick to get the guns out of our hands. The whole paranoia about the jack-booted thugs from government coming to take away your guns, or the woke liberals trying to take away your guns, the whole working people up to such an extent, into a fantasy world of polarized gun zero sum game really gets in the way.

I mean, nobody who's working in public health has any illusions that guns are going away, and are not at all trying to take away people's guns in some broad sense. What they're trying to do is, as we did in auto safety, do everything we can at every stage—from the design of the weapon, through the storage of the weapon, through the use of the weapon, through the ability to get access to the weapon, to the ammunition in the weapon, to where the weapon can be carried—to reduce the death toll. And that ought to be a cooperative effort, informed by research, and without this incredible court interference, such that there's no room left in the legislature to deal with guns.

JJ: All right then. We've been speaking with Scott Burris. He's professor at Temple Law School and Temple School of Public Health. He's also director of the Center for Public Health Law Research. You can find his piece for Regulatory Review, “One Year On, Bruen Really Is as Bad as It Reads,” ([link removed].) online at TheRegReview.org ([link removed]) . Scott Burris, thank you so much for joining us this week on CounterSpin.

SB: Thank you very much.
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