Efforts to map modern notions of “dangerousness” and other concepts onto 1791 fared poorly. Matthew Wright, Rahimi’s lawyer, told the justices they could only look to sources from the founding era and “immediately” after it, but he could not explain how to bridge the vast gulf between that era—when women and racial minorities were not equal citizens in law or society, domestic violence was tolerated, and the guns people carried were muskets rather than AR-15s—and our own. A related problem confronts attempts to locate constitutional meaning in distant history. Many practices in America’s history and traditions are repugnant. When judges focus their constitutional inquiry on sources from the era in which the relevant amendment was written, they need to either embrace the bigotry of the past or cherry-pick cases that suit the present. The former approach is untenable morally, the latter methodologically. History, for example, shows that founding-era governments disarmed enslaved people and Native Americans and that Redeemer-era governments disarmed Black citizens. For different reasons, both Prelogar and Wright said that those histories weren’t relevant. Prelogar claimed that these laws reflected an obsolete conception of the “political community.” Yet some of the laws she cited in the government’s briefs were similarly predicated on an outdated understanding of the “political community.”
Wright’s reasoning was worse still. He said that “awful” and “terrible” laws should be excluded from the history-and-tradition inquiry, and that “we should not give credence to a suggestion by a legislator in 1870 in the South.” But American history is replete with “awful” laws, as well as laws that are not neatly “awful” or “good.” If the history-and-tradition test cannot consider history and traditions in their full complexity, it won’t be able to look at much. And if we should not give credence to the views of racist Southern legislators from 1870, it’s unclear why we should give credence to the views of equally virulent framers from 1791. Bruen’s history-and-tradition test is supposed to curb ad hoc judicial discretion, but it has the effect of supercharging it. Judges embrace a high level of generality to uphold laws they like, then switch to a narrower construction of generality to strike down laws they don’t. They deem some history to be the bedrock of constitutional meaning and other history to be entirely irrelevant, based on their policy preferences rather than principled standards. “I’m a little troubled,” Justice Jackson told Wright, “by having a history-and-traditions-test that also requires some sort of culling of the history so that only certain people’s history counts.”