As we have seen before, the American Supreme Court is a bit of a joke, at least in the eyes of a UK lawyer. In fact it's more a cult than a normal court. Of course the US constitution in its present form did not arrive oven-ready 250 years ago. The original constitution outlined federal government structure and powers, but there was then a group of 10 amendments forming what is now referred to as the ‘Bill of Rights’, ratified on December 15th, 1791. So, a mere 15 years later.

The amendments were designed to safeguard citizens’ liberties, such as free speech, due process and that American obsession - bearing arms.

Since then there have been another 17 amendments, the last one being finally ratified in 1991. That 27th Amendment prevents Congress from changing the salary paid to congressmen until after the following election. Proposed by James Madison in 1789, it was forgotten for over 200 years until a college student rediscovered it and led a campaign for its ratification.

That famous second amendment, the right to bear arms actually says: ‘A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” This of course has become an article of faith for the gun lobby, one allowing them to keep arsenals of weapons in their homes. The National Rifle Association says that only by being tooled up with the latest semi-automatic rifles can any individual feel safe on the mean streets of Washington.

But many historians would say that it has nothing to do with this. They would say that it was to preserve a balance of power between the federal government and the individual states. Hence the use of the phrase ‘free State’. America was not a state, but a federation of states. Thus, the amendment protected the right of citizens in individual states to bear arms in order, if it became necessary, as part of a ‘well-regulated militia’, to resist the overweening power of a federal government or a group of other states.

That, one might argue, is the real history of that amendment. And the need for it is long past its sell-by date. But that is not the interpretation of the constitution in that bastion of safety, the United States. The NRA view holds sway, even in the Supreme Court.

But now we have even wilder ideas about how the constitution should be interpreted. With its origins in the Reagan era, the justices have now adopted a novel principle, that of ‘originalism’.

It is an interpretation of the various parts of the constitution based on the date when they came into force. They do not interpret the constitution in the circumstances of a modern (very) changed society. Originalism requires judges to interpret by reference to the conditions existing when the wording was ratified. Trump appointee, Justice Brett Kavanaugh, has explained the assumption behind the theory: “History is far less subjective than policy.” Apparently he wasn’t joking.

But this means that if you want to restrict a constitutional right, you have to find some analogous restriction in American ‘history or tradition’ of the time which would justify that restriction. And so, in the absence of history providing such a restriction, even if current factors would mean that a particular requirement is no longer appropriate, nothing can be done about it apart from actually changing the constitution – very much an uphill task.

‘United States v. Hemani’, a recent case, illustrates the difficulty this creates. A federal law introduced in 1986 makes it a crime for an “unlawful user” of a “controlled substance” to own a gun. The penalty for violating this section of the federal criminal code is a prison term of up to 15 years.

Mr Ali Hemani lived with his parents (of Pakistani origin) in the Dallas area. He had a steady job and, like many Texans, kept a gun at home. He also, a few times a week, used marijuana.

The government decided to prosecute him. They suspected him, without any proof, of having terrorist sympathies and so they were determined to continue with the prosecution. This meant that they were faced with trying to find the “history and tradition” needed to justify the 1986 limitation of Mr Hemani’s second amendment right.

“History and tradition”, of course, refers to 1791 - when the amendment to the constitution was ratified. And so given that marijuana was not a controlled drug, or even really known about in America in 1791, the prosecutors were in a bit of a pickle. They had to try to find analogous restrictions from that period.

The laws they chose as the best fit were the “habitual drunkard” laws from the 18th and 19th centuries. State laws then allowed the town drunks to be taken off the streets and sent to workhouses or jails, where they had no access to firearms. The Supreme Court was not impressed. They held unanimously that “habitual drunkard” laws were not relevant for casual marijuana use.

The old laws only applied to a person who: “ “for any considerable part of his time [was] intoxicated to such a degree as to deprive him of his ordinary reasoning faculties.” And while habitual drunks had to be adjudged incompetent before losing their liberty, the 1986 law contained no requirement of addiction or incapacity.

Justice Gorsuch wanted to know how the founding era defined habitual drunkenness. In fact, just a few days before the framers signed the Constitution, “a farewell party gathered for General Washington at Philadelphia’s City Tavern where 55 guests are said to have ordered 54 bottles of Madeira, 60 bottles of wine, 8 bottles of “Old stock,” 22 bottles of porter, 8 bottles of cider, 12 bottles of beer, and 7 large bowls of punch.“.

John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn’t much of a user of alcohol; he only had three or four glasses of wine a night.. Justice Gorsuch observed that “the American Temperance Society back in the day said eight shots of whiskey a day only made you an occasional drunkard.” The argument transcript at this point indicates “(Laughter.)”

The requirement to look back at ‘History and Tradition’ was finally set out in a case going under the name of ‘Bruen’ in 2022. As one of the judges in this case though has said “Bruen is unworkable. It imposes on judges the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer “contested historical questions,” and “applying those answers to resolve contemporary problems.”

Given those challenges, it is unsurprising that Bruen’s test is vulnerable to inconsistent and arbitrary application: judges draw different conclusions from the same historical evidence and so reach divergent assessments of the same laws.

Perhaps worst of all, Bruen leaves no room to consider “the real and present stakes of the problems facing our society today.”  “Instead, to pass a new firearm regulation, legislatures and their lawyers are forced to trawl through inconclusive and incomplete historical records in search of evidence they can only hope will satisfy this Court.”.

The difficulties Bruen has created are even more obvious when compared to the test it abolished: ‘does the end justify the means’?

Under that framework, “courts considered the strength of the government’s justification for the firearm restriction against the burden that restriction imposed on Second Amendment rights. That scrutiny did not bind governments to previous legislative policy judgments, but neither did it operate as a blank cheque that allowed governments to trample on a constitutional right.”

So will the Justices continue ploughing their way through history books and records proceeding under the fiction that at the end of the road lies objectivity?

The new legal term begins in October, and the court will then have to decide whether the Second Amendment protects a right to own a lightweight semi-automatic AR-15 rifle. This is weapon of choice for about 15 million ordinary Americans and also for most mass murderers.

Obviously such guns did not exist in 1791. But is it nonetheless one of the “arms” the Second Amendment gives individuals the right to keep and bear? Will they in effect say that it is analogous to a musket? If they do, then they will have stretched their own Bruen doctrine to breaking point.

21 July 2026

Paul Buckingham