Marc Spindelman (Ohio State University – Michael E. Moritz College of Law) has posted Kavanaugh, Rahimi, and the Effort to Legitimate Originalism (173 U. Pa. L. Rev. Online 103 (2025)) (30 pages) on SSRN. Here is the abstract:
United States v. Rahimi, declaring the Second Amendment’s meaning at an important conjunction with positive-law sex equality domestic violence rights, has been celebrated in some quarters for its reliance on American “common sense” to condition and check the Supreme Court’s originalist project. Rahimi, however, also shows some of the Court’s conservatives tightening the grip of their originalist commitments while vying for the primacy of their preferred originalist brands. Perhaps the most significant of these efforts is in Justice Brett Kavanaugh’s Rahimi concurrence. Kavanaugh’s concurrence offers an extended bid for the primacy of history-and-tradition originalism, which the concurrence maintains stands in a distinguished legal lineage with Justice Antonin Scalia’s originalist decisions, winding back to the founding era. Burnishing history-and-tradition originalism’s legal authority like this, the concurrence practically sidelines alternative originalist forms of constitutional interpretation as lacking similar legal supports. Kavanaugh's concurrence simultaneously spotlights two targets for next-generation history-and-tradition work. One is focused on modern heightened standards of judicial review and another on breathing hitherto unknown life into the Fourteenth Amendment’s Privileges or Immunities Clause. As a symbol, Rahimi is thus less a simple gift for victims and survivors of domestic abuse or other political causes that might benefit from its commonsense originalism than it is an originalist Trojan Horse. With time, Rahimi’s originalist ambitions—not its modesty—may define the case and its legal meaning while placing new pressures on the ruling that expose the shortcomings of its defenses of history-and-tradition originalism.
(Via Family Law Prof Blog.)
Posted at 6:08 AM