Constitutional Methods at a Crossroads: Natural Law, the Second Amendment, and a "Classical" Concurrence

Introduction

Justice Oliver Wendell Holmes famously quipped that the Constitution “does not enact Mr. Herbert Spencer’s Social Statics.”1 But might it enact St. Thomas Aquinas’s Summa Theologica? That is not far from the suggestion of Third Circuit Judge Paul Matey in his recent concurrence in Range v. Attorney General.2 In that case, the en banc Third Circuit invalidated the federal prohibition on firearms for those with felony convictions, as applied to one plaintiff.3 In many respects, Range looks like a typical Second Amendment decision after New York State Rifle & Pistol Ass’n v. Bruen:4 The Third Circuit fractured around how to interpret historical evidence, what principles to draw from history, and how narrowly or broadly to define those principles.5 But Judge Matey’s concurrence stands out for its adoption of a “classical legal” approach to the Second Amendment based in natural law, which explicitly draws on Professor Adrian Vermeule’s idea of common good constitutionalism (and has garnered Vermeule’s approval).6 Judge Matey goes beyond his colleagues’ focus on history to examine what he calls classical legal principles, gleaned from the ancient Roman statesman and philosopher Cicero, Roman law, and the writings of Aquinas.7 This is an effort to ascertain the natural law principles that he understands as both preexisting and disciplining our constitutional law. Notably, he conducts this inquiry before analyzing the historical tradition that his colleagues focus on under Bruen, purporting to test history against natural law principles.8

Judge Matey’s concurrence might seem like an odd curiosity at this point. And it is indeed an outlier among Second Amendment decisions. But it is worthy of serious consideration. The concurrence represents the first foothold for a natural law approach to the Second Amendment in the federal courts of appeals, and one of the first examples of what a common good constitutionalism might look like in judicial practice. 

A growing movement—greatly spurred by the work of Vermeule but also advanced by others—seeks to supplant or supplement originalism with more explicitly morally oriented approaches to constitutional law, involving concepts of natural law and the common good. This development has already prompted numerous originalist responses, often defensive and skeptical, amid a “time of intellectual tumult” among conservatives. Additionally, some have specifically sought to ground Second Amendment doctrine in natural law, spurred by the Supreme Court’s remark in District of Columbia v. Heller9 that the Second Amendment codified a preexisting right and by the Court’s recent turn to tradition. 10 As a piece of movement jurisprudence, Judge Matey’s Range concurrence engages with both of these efforts. A close examination of the concurrence offers a valuable opportunity to take stock of shifting methodological currents, as intramural debates in conservative legal scholarship find their way into the federal courts; to probe the place of natural law in Second Amendment doctrine, as courts continue to puzzle out application of the Supreme Court’s recent precedents; and to evaluate a common-good, natural law method of adjudication in practice. This Essay aims to do just that.

There is a great deal to say about the emergence or reemergence of natural law reasoning in constitutional law generally, and in relation to the Second Amendment particularly. But broader theoretical questions about those approaches are largely beyond the scope of this short Essay. Instead, because Judge Matey’s concurrence represents a first glimpse of what such an approach might look like in practice, my aim here is to produce a pragmatic evaluation of the method in action, while bracketing larger theoretical discussions. Admittedly, deep theoretical questions about the basis for a classical-legal approach to constitutional rights cannot entirely be put to the side. But focusing on the method as practiced in an actual case, while temporarily cabining those larger questions, can provide useful insight in ways that back-and-forth on the field of constitutional first principles cannot. My object of inquiry is not the natural law belief in certain “principles of objective natural morality,” per se.11 Nor do I address here the basic idea, which also travels under the name of natural law, that “what the law is depends in some way on what the law should be.” My focus is a particular method of adjudication that uses natural law principles derived from sources of the distant past as specific limits on regulatory authority in the present.

In doing so, I want to make three points: First, contrary to how Judge Matey presents the natural law method in his concurrence, it represents a departure from—not a faithful application of—the Supreme Court’s recent Second Amendment decisions.12 Tensions between the judicial role on a court bound to apply Supreme Court precedent and a desire to further an emergent natural law movement mean that Judge Matey’s concurrence tries to shoehorn the method into existing doctrine—but this effort fails as a doctrinal matter. Second, as practiced in Range, the natural law method has serious problems of application. It is beset by underexplained selectivity, by unjustified historical assumptions and elision of historical context, and by errors in reading historical sources.13 These problems, I suggest, are not simply correctible mistakes that call for better application of the method; rather, they are symptomatic of a method ill-suited to constitutional adjudication by courts. Third and finally, the Range concurrence’s method is strikingly underdeterminative, and its failure to provide answers in close constitutional cases risks leading to unconstrained decision by ipse dixit.14 The concurrence suggests that a natural law or classical-legal method of adjudication may be a recipe more for idiosyncratic judgment than for reasoned decision-making.

Ultimately, then, I conclude that the natural law approach to the Second Amendment hazarded in Range is both unwarranted as an attempt to apply Supreme Court precedent and undesirable as a normative matter. But regardless, it is illuminating as a case study in common good constitutionalism’s attempt to move from “off the wall to on the wall.”

I.   Natural Law Principles and Current Second Amendment Doctrine

Discontent with originalism has been brewing in conservative legal scholarship, alongside the method’s “ongoing elaboration . . . under the practical pressures of implementation on an apex court.” Most influentially, Vermeule has advanced an attack on originalism—characterized by at least one enthusiast as “a beneficial exercise in Overton window-shifting”—with a theory of common good constitutionalism grounded in concepts of natural law and the “classical legal tradition.”15 Vermeule’s work has already generated numerous critiques, creating “a veritable cottage industry in jurisprudence as well as constitutional and political theory.” In particular, Vermeule’s polemical positioning vis-à-vis originalism has led both to spirited defenses of the method and to various attempts to reconcile it with common good constitutionalism.16 Into this fray enters the Range concurrence. In it, Judge Matey agrees with the majority’s conclusion, but writes separately to explain “why that conclusion follows classical principles respecting [ ] natural rights.”17 This Part aims to demonstrate and emphasize something the concurrence tends to obscure: Judge Matey’s natural law inquiry is a significant departure from, not a mere application of, the Supreme Court’s recent Second Amendment decisions.

The Second Amendment is a particularly fertile doctrinal context for current methodological disputes to play out in courts. It represents an area of constitutional doctrine still being formulated and relatively unconstrained by modern precedent. Bruen’s history-and-tradition method might mark a paradigmatic achievement of originalism to some (including Justices who joined the opinion),18 but its novel, underexplained history-and-tradition test has been claimed for varying interpretive approaches. So, it is perhaps unsurprising that a Second Amendment case would offer opportunities for a natural law or common-good approach to filter into the courts. Still, such an approach is not so easily grafted onto the Supreme Court’s recent Second Amendment jurisprudence. Simply put, it is distinct from the history-based approach the Supreme Court mandated in Bruen and United States v. Rahimi,19 which bound the Third Circuit in Range. And so, Judge Matey’s natural law concurrence necessarily wavers between role-based adherence to binding precedent and movement-based appeals to natural law and the classical legal tradition.

These methodological tensions show near the start of the concurrence. On the one hand, the concurrence purports to apply Bruen and Rahimi, accepting that the scope of the Second Amendment right is determined by the nation’s history of firearms regulation.20 At the same time, the concurrence vigorously criticizes historical inquiry “[a]bsent exploration of the natural principles that support our legal tradition,” since this would “overlook those ‘certain primary truths, or first principles, upon which all subsequent reasonings must depend.’”21 For Judge Matey, as he has also claimed elsewhere, “an appropriate historical inquiry cannot be conducted while blind to the ‘reason and spirit’ of the law, which provided for its validity and natural purpose.”22 But reliance on mere history without inquiry into “natural principles” is exactly what Bruen demands. Even if not explicitly, it is the Bruen method that is criticized here as misguided, incomplete, or “blind.”

Caught between wanting to apply Supreme Court doctrine faithfully and to transform it polemically, Judge Matey attempts to square this circle. He presents his natural law approach as seamlessly in line with Supreme Court doctrine, stating: “I write separately to explain why that conclusion [that the challenged law violates the Second Amendment] follows classical principles respecting the natural rights that inform ‘our regulatory tradition.’ Doing so demonstrates the ‘reason and spirit’ of the law, or the ‘principles underlying the Second Amendment.’”23 Weaving Rahimi and Blackstone citations together, Judge Matey implies that his natural law approach is simply following Rahimi’s instruction to look to traditional principles.24 The concurrence makes a similar maneuver soon after: 

Surveying history helps us understand the reasons relied on to regulate the right, ensuring a “[c]ontinuity of [p]rinciples” faithful to our inherited tradition. We look, in other words, for “markers or indicators that the later doctrine is essentially continuous with the earlier one and grows out of it, rather than representing a break with the past that mutilates or fundamentally transforms the core and essence of the doctrine.”25

To be clear, the opinion here quotes from a nineteenth-century work of Christian theology and from Vermeule’s Common Good Constitutionalism as if they straightforwardly explicated the method of Bruen and Rahimi. This sleight of hand does not succeed. Those sources are discussing highly particular conceptions of tradition and doctrinal development, not the manner in which the contemporary Supreme Court has required modern firearms regulations to resemble historical laws. Indeed, Judge Matey appears to recognize this on some level, as he justifies his methodology again in a voluminous footnote arguing that he is “follow[ing] the well-established practice of consulting classical authorities discussing natural law to inform the determination of written rights.”26 If the concurrence’s foray into Cicero and Aquinas were so clearly a routine application of Rahimi, there would be no need for this additional explanation.

Judge Matey’s approach veers astray from Supreme Court precedent because what Rahimi meant by examining the “principles underlying the Second Amendment”27 is quite clearly looking at historical regulation at a higher level of generality—not looking beyond history to the first principles of political or moral philosophy. Bruen established a historical-analogical approach to Second Amendment adjudication, in which modern laws must be “consistent with the Nation’s historical tradition of firearm regulation.”28 Rahimi then clarified that consistency with historical tradition is to be evaluated at the level of principle—that is, at a relatively high level of generality.29

Rahimi upheld the federal law disarming those subject to certain domestic violence restraining orders based on the principle that “individuals who pose a credible threat to the physical safety of others” may be disarmed.30 The Court arrived at this principle by extrapolating from the features of historical laws, since Bruen requires the scope of the Second Amendment to be discerned from the nation’s regulatory tradition.31 The majority considered evidence of historical positive law, and then—because we are not limited to the precise regulations of the past—distilled from the historical evidence a general principle governing the kinds of laws our Constitution has been “understood to permit.”32 And when summarizing its analogical approach, the Court articulated its reliance on principles in opposition to more fine-grained comparisons to past laws—making clear that its use of the term “principles” was meant to address level-of-generality concerns.33 In short, Rahimi’s turn to principles was not a turn to moral-philosophical principles gleaned from a classical tradition, and the focus of the Second Amendment inquiry under governing Supreme Court precedent remains the history of American regulation.

Importantly, Judge Matey’s Range concurrence departs from Rahimi not only in the body of authority it consults, but in the logical sequence of its reasoning. The Rahimi majority built its way up to principles, starting from the particulars of historical laws.34 Judge Matey’s Range concurrence does the opposite, divining principles first and then interpreting history so as to align with them.35 That brings with it the risk that the concurrence will not follow history, per Bruen,but may distort it to fit the procrustean bed of natural law.

One example may suffice. The concurrence interprets the Statute of Northampton (and the related tradition of affray laws) as “follow[ing] the path of the classical law,”36 by prohibiting causing public terror without restricting the natural right to self-defense:

But the Statute did not displace the right of using arms for self-defense and continued the understanding that an individual “may not onely use force and armes” but also “assemble his friends and neighbors to keep his house against those that come to rob, or kill him, or to offer him violence.” Use of force to oppose unlawful force is “by construction excepted out of this [Statute]” because the laws permit the taking up of arms against armed persons. As a result, individuals with the “intent to defend themselves against their adversaries, are not within the meaning of this Statute, because they do nothing in terrorem populi.”37

Here, although the Statute’s text does not actually contain a self-defense exception, the concurrence reads the law as containing one implicitly, based on discussions in legal treatises by Sir Edward Coke and Serjeant William Hawkins. But it seriously misreads those sources. The relevant portion of Coke’s Institutes states that “any may assemble his friends and neighbours, to keep his house against those that come to rob, or kill him, or to offer him violence in it, and is by construction excepted out of this act.” It is this defense of the home, not Judge Matey’s “[u]se of force to oppose unlawful force,”38 that is exempted from the law’s reach. Indeed, Coke immediately reinforces this with a reference to the castle doctrine: “[F]or a mans house is his castle . . . and in this sense it is truly said, Armaque in armatos sumere jura sinunt.”39 Again, the text is not describing a general self-defense exception, but a locational limit on affrays, which do not apply to the use of force to defend the home. If there were any doubt, the text continues: “But he cannot assemble force, though he be extreamly threatned, to goe with him to church, or market, or any other place, but that is prohibited by this act.”

The concurrence’s reliance on Hawkins appears similarly problematic. The full sentence that the concurrence quotes in part (with a key unquoted portion in the first italics) states: “And from the same Ground it also follows, that persons armed with privy coats of mail, to the intent to defend themselves against their adversaries, are not within the meaning of this statute, because they do nothing in terrorem populi.” A specific exception for a certain kind of armor is far from excepting all arms carrying for self-defense purposes. The concurrence’s claim that this strand of laws did not reach arms carrying for self-defense is simply not supported by the sources it cites.

It is possible that this is an error unrelated to the concurrence’s classical-legal method. But given the concurrence’s prior commitment to natural law principles, against which it reads historical sources, and given its insistence that the Statute of Northampton “followed the path of the classical law,”40 one wonders whether it is the concurrence’s method that causes it to misread Coke and Hawkins in this way. The opinion may be driven to adopt an interpretation unwarranted by the evidence because it fits better with its understanding of natural law.

It is true that there is scholarly debate over how exactly to understand Bruen’s methodology—whether as standard originalism, living traditionalism, a novel form of originalism by analogy, or a general-law approach to originalism. But however the method is characterized, the Court in Bruen was working from the building blocks of historical evidence, performing the kind of bare historical analysis that Judge Matey criticizes as insufficient. The Court was trying to ascertain what our country’s law has been, not to consult the history of Western thought and evaluate modern laws against moral-philosophical principles. Nor does the Rahimi opinion’s reference to principles license the kind of analysis Judge Matey undertakes in Range. To be sure, how past generations thought about natural law might serve as helpful context for better understanding historical evidence in specific circumstances. But the mere fact that ideas about natural law were prevalent or influential in the past does not justify tethering historical inquiry to a court’s own natural law reasoning.

In short, the Range concurrence appears closer to a call to alter Second Amendment doctrine than a faithful application of Bruen and Rahimi. By presenting the opinion as simply applying Rahimi, Judge Matey largely evades thorny questions about the exact nature of his methodology and why it is justified—both as a general matter and as an appropriate approach for a court bound to apply current Supreme Court doctrine. Judge Matey—and anyone else seeking to import a natural law or classical-legal-tradition analysis into Second Amendment doctrine—should explain why that methodological change is justified, rather than proceeding as though it is already the law.

While Judge Matey’s presentation of his natural law method as already part of the Bruen-Rahimi analysis is unpersuasive, it is an instructive case study in shifting constitutional methodologies. It shows that a discontent with the ostensibly neutral method of originalism has started to find its way into courts, while demonstrating a very particular strategy of movement jurisprudence. Given the heavy gravitational pull and continued stature of originalism (not to mention the binding authority of precedent), the concurrence purports to find its new method already hidden within Bruen and Rahimi, rather than presenting it as a challenge to the status quo. If this concurrence is any indication, what began as a polemical attack on originalism may enter into judicial doctrine less combatively, in originalist-hybrid forms. Finally, the Range concurrence also suggests that the Supreme Court’s underexplained turn to “tradition” in various doctrinal contexts, even if it can be understood within an originalist frame, creates a unique opportunity for this kind of methodological mischief.41 That is, the history-and-tradition approach is a malleable doctrinal vessel that is especially suited to (and perhaps symptomatic of) a moment of conservative methodological division.

II.   The Natural Law Method in Action

But let us put aside whether Judge Matey’s natural law approach is warranted under current doctrine and evaluate it as an alternative or supplement to Bruen and Rahimi. There are important fundamental objections to the method, raising broader questions of constitutional theory than this Essay aims to tackle. Succinctly, though, I am skeptical of the idea that our Constitution binds us to the political-philosophical worldview or intellectual habitus of the Founders, or to the specific moral precepts of Aquinas.42 That is, it does not require us to believe in (or pretend to believe in) natural law, or adhere to any one account of the precise content of that natural law. Leaving those objections for another day, though, here I will accept the premises of Judge Matey’s method for the sake of argument—that natural law principles deduced from what he terms the classical tradition should dictate our interpretation of constitutional rights. Even accepting that idea in theory, I want to point out some problems with putting this method into judicial practice. In Range, application of the method shows a selective approach to sources, neglect of historical context, and errors in working with the foreign materials of a distant past. These criticisms may sound familiar. Indeed, the method appears to replicate, multiply, and intensify characteristic problems of Bruen’s history-and-tradition method.

Perhaps the first thing to notice about the concurrence’s classical-legal inquiry is the selection of sources Judge Matey consults. In four paragraphs, the concurrence surveys a passage from a forensic defense speech by Cicero, a few pieces of Roman law, and some philosophical writings by St. Thomas Aquinas.43 For purposes of the opinion, these disparate data points constitute the classical tradition. But there is little to no discussion of why these are paradigmatic (and sufficient) sources to consult. Cicero and Aquinas are influential figures in the history of philosophy, to be sure. But why should they be the last word on the content or scope of natural rights?44 Why do fragments of Roman law have the weight of natural law, as opposed to the mere historical value of English common law later in Judge Matey’s analysis?45 In short, absent some justification for treating these several sources as comprehensive or representative, it is hard for the concurrence to avoid an appearance of selectivity and partiality. The natural law approach, in widening the body of relevant historical sources to a nebulously defined “classical tradition,” seems to exacerbate the risk that judges might look over a crowd and pick out their friends.

For example, although not directly implicated by the law at issue in Range, sensitive-place restrictions appear not to fare well under the concurrence’s reading of the classical tradition. Judge Matey suggests that laws regulating “the places where possession [of firearms] is permitted can ‘eviscerate the general right to publicly carry arms for self-defense,’” because they “uniformly apply to everyone,” as opposed to targeting “individualized conduct” that threatens the community.46 But how would the analysis change if we put Cicero alongside other historical tidbits from the ancient Mediterranean? Blackstone himself memorializes a famed ancient law of Solon under which “every Athenian was finable who walked about the city in armour.”47 Or consider a traditional story that the ancient historian Diodorus Siculus relays, separately, of two famed Sicilian lawgivers. The story goes that Charondas established a law that no one should enter the public assembly (ekklesia) bearing a weapon, under penalty of death, and that Diocles established the same law for the marketplace (agora). After carrying weapons in the countryside (Charondas to defend against robbers, and Diocles to defend against enemies), they then rushed unthinkingly into those spaces. When someone pointed out that they had violated their own laws, by carrying a weapon into the public assembly and marketplace, the lawgivers pledged to uphold the laws and killed themselves on the spot with those weapons. Those classical laws certainly seemed to “uniformly apply to everyone.”

To be clear, I do not support combing through fragments of ancient history to define the outer bounds of our representative governments’ authority to regulate firearms under our Constitution. But if we are going to consult the “classical tradition” for these purposes, that tradition may very well provide support for more robust gun safety regulation and more restrictions on public carry than a selective survey of sources would suggest.

From this angle, the selectivity problem is one of accuracy—Judge Matey might be getting tradition wrong or exaggerating certain aspects of it. But there is another selectivity problem based on how his tour of tradition ends with Aquinas. Why not consult more recent or even contemporary thinkers, instead of cutting tradition off in the medieval period? The concurrence’s historically limited natural law inquiry runs the risk of accepting past inequalities unthinkingly, masking questionable moral reasoning in the present as mere reportage of established truths. Although this problem may be more likely to surface in areas outside the Second Amendment, taking as our guide centuries-old ideas of what is “natural” is generally risky. There is, after all, a pernicious tendency to justify contingent social arrangements and forms of subordination by appeals to nature. So, for example, Aristotle regarded some persons as slaves by nature and women as inferior to men by nature. And Aquinas condemned “copulation with an undue sex, male with male, or female with female” as contrary to nature. Indeed, some have long argued that the “basic problem” with natural law is that it appears to be “always just a projection onto ‘nature’ of whatever the moral prejudices of the time (or the author) have been.” Relying on a natural law or classical-legal tradition that is locked in the past risks entrenching past inequalities and prejudices. In other words, the selectivity problem can be an equality problem.

Even granting the concurrence’s selection of sources, though, there is another problem: taking them out of context. This problem is perhaps most evident with Cicero, whose writing is plucked from a radically different ancient world as though it speaks directly and unproblematically to our conceptions of rights and regulatory authority, as well as our concerns with dangerous weapons and arms bearing. This resembles a criticism lodged at originalism and Bruen’s history-and-tradition method. For example, as Professor Brian DeLay has explained with reference to Bruen, historical arguments in Second Amendment litigation often insist on a “myth of continuity” that “confidently projects our modern experience with guns and gun violence onto the late eighteenth century.” And more generally, Professor Jonathan Gienapp and Professor Jud Campbell have recently emphasized that the Founding Era had significantly different conceptions of rights and of fundamental law from those commonly assumed in originalist adjudication today. Such problems are only magnified when pulling quotations from the ancient world, where we cannot assume that our concepts of rights, of law, or even of a state—not to mention of arms bearing—easily translate.

The lack of attention to context also affects the concurrence’s use of Cicero in a more specific way. The concurrence relies on a passage from Cicero’s Pro Milone without providing any information about the source.48 The Pro Milone is a highly rhetorical forensic speech (not actually delivered in the form preserved for us in writing) that has been called, for example, “a model of special pleading” and “a magnificent rhetorical set piece.” In it, Cicero defends the leader of a political faction (named Milo), who ordered his rival (and an opponent of Cicero) killed after a public confrontation between their armed gangs—part of the rampant civil strife and political violence of the late Roman Republic. It may also bear mentioning that Cicero’s efforts, including any invocation of self-defense, were unsuccessful—Milo was convicted. Essentially, the Range concurrence attempts to draw lessons about the place of dangerous weapons in civil society from a politically and rhetorically motivated speech in defense of a violent agitator arising from a time of internal political violence and civil war.

The relevance of that historical context to the concurrence depends on exactly how and why it is consulting Cicero. Is the analysis primarily historical, seeking to understand Cicero on his own terms, how a premodern Roman state regulated or did not regulate swords, daggers, and the like over two thousand years ago, or how the Romans of a particular period conceptualized the place of weapons and armed violence in a properly running state? The citations of Roman law alongside Cicero seem to suggest yes—that the concurrence actually is interested in how ancient Romans regulated and conceptualized the presence of weapons in the public sphere. In that case, a lack of attention to historical difference and context are significant problems for this method.

But perhaps the concurrence’s analysis is more philosophical than historical, mining sources of whatever period and from whatever context for insights into a concept of natural law assumed to be transhistorical. Perhaps all it seeks in the historical record is a series of classical passages from which to mine timeless truths. If that is the case, though, then we are being guided not by past tradition but by a particular moral-political philosophy in the present. And it is unclear why these sources from the ancient Mediterranean should have such a privileged place in disclosing “true” natural law. Either path presents problems, and this ambiguity makes it difficult to pin down the concurrence’s analysis, which moves between claims about the reality of historical law and practice and claims about ideal moral truths. 

In any event, we can put aside, too, the decontextualization and joining together of historical evidence spanning some 1300 years. Even approaching these sources on the concurrence’s terms, it turns out that working with such an array of sources in the context of litigation—with its demand for answers to narrowly framed contemporary legal questions—leads predictably to errors. First, the concurrence misrepresents the Lex Cornelia de Sicariis et Veneficiis, a Romanlaw from the reign of the dictator Sulla around 81 BCE—whose content we can only infer and attempt to reconstruct from various sources, including compilations from hundreds of years later.49 Citing one such later source, Justinian’s Institutes, the concurrence claims that the law, while prohibiting carrying weapons for the purpose of homicide, “stated that carrying weapons was lawful.”50 But the cited source does not make that statement. According to the Institutes, the law simply prohibited carrying weapons for a particular purpose, without speaking to the public carrying of weapons more broadly. The law addressed homicide in part by punishing those “who carry weapons for the purpose of homicide.” True, this particular law did not punish carrying weapons simpliciter. But the law did not affirmatively state that carrying weapons is lawful. And of course, even that would not evidence a tradition of seeing prohibiting weapons as beyond a state’s or ruler’s authority.

The concurrence also stretches its historical sources by conflating self-defense with arms bearing. Judge Matey summarizes his natural law and historical inquiry by concluding as follows: 

At least two distinct principles run continuous throughout history from Cicero to Founding-era America. First, the right to bear arms is not a license to physically harm another. Second, an individual cannot exercise that right to rebel against a just government ordered for the common good. Penalty for acting adverse to either principle often amounted to disarmament.51

The concurrence thus tries to assimilate Cicero and Roman law into a “continuous” story of the “right to bear arms.” But the Roman sources do not discuss such a right. Even granting the highly questionable assumption of a transhistorical conception of rights, the Roman sources simply are not discussing a right to keep and bear arms. Rather, they are discussing a right to self-defense. In the Pro Milone, Cicero writes:

There does exist therefore, gentlemen, a law which is a law not of the statute-book, but of nature; a law which we possess not by instruction, tradition, or reading, but which we have caught, imbibed, and sucked in at Nature’s own breast; a law which comes to us not by education but by constitution, not by training but by intuition—the law, I mean, that should our life have fallen into any snare, into the violence and the weapons of robbers or foes, every method of winning a way to safety would be morally justifiable.

Cicero here makes a philosophical argument that self-defense through violent force is rightful in particular circumstances, grounding that argument in an appeal to “Nature.” He does not suggest that there is a natural right to go about in public armed with dangerous weapons, let alone that the state could or should not prohibit certain forms of arms possession or carrying. Cicero does lead up to his assertion with a rhetorical question concerning weapons: “What is the meaning of the bodyguards that attend us and the swords that we carry? We should certainly not be permitted to have them, were we never to be permitted to use them.” That is, he reasons that if the law permits going armed, it should logically permit using arms in some circumstances. But the right that Cicero roots in nature is a right to self-defense, not a right to keep or carry certain weapons. Similarly, the Roman Digest as quoted by the concurrence states, “[W]hatever a person does for his bodily security he can be held to have done rightfully.”52 Again, what is at issue here is the use of force in self-defense, not a right to possess particular weapons or carry them in public.

One might think, along with Heller, that a right to self-defense is closely related to and ultimately served by the Second Amendment right, but they are conceptually distinct rights. A right to keep and bear arms for the purpose of self-defense does imply and assume a right to self-defense, but the opposite is not necessarily the case. One could easily believe in a natural right of self-defense but think that it does not extend to possessing or carrying certain dangerous weapons outside of highly regulated contexts—or indeed take any number of positions on the scope of any right to arms. A recognition that self-defense can justify or excuse homicide is not the recognition of a right to keep and bear arms.

At most, what the concurrence’s Roman sources show is that allowance for the use of force in self-defense has precedent in ancient philosophy and in Roman law. But even on this issue, it is unclear what to take from Cicero and the Digest. Cicero extravagantly claims that “every method” of self-defense is justified. (Recall that Cicero was specifically defending a homicide in the Pro Milone that was not exactly a proportional response to an imminent deadly threat.) Similarly, the concurrence quotes the Digest as saying that “whatever” one does in self-defense is “rightful[ ].”53 But the concurrence surely cannot accept that. Lawful self-defense must respect a variety of “[l]imitations . . . recognized in common law since before our nation’s founding.” So, the concurrence is not taking the Roman sources strictly at their word. But by what method or standard are we deciding which aspects of the sources to adopt and which to ignore? Overall, it appears that the concurrence not only fails to justify its selection of historical sources but also underexplains what lessons to draw from them. 

Taking the Range concurrence as an example, then, the natural law or classical-tradition method appears to amount to a highly partial construction of tradition, with ample judicial discretion to select pieces of historical and literary-philosophical evidence. And all the while, the method exacerbates problems with judges attempting to make foreign historical materials answer questions defined by present-day concepts and concerns, overlooking historical context and running the risk of misreading historical sources along the way.

The point here is not that judges simply need to perform this method better. Rather, these issues are symptomatic of the method. Consulting a centuries-long “classical tradition”54 in order to answer legal questions framed by contemporary concepts and understandings, amid the constraints and incentives of adversarial litigation, is likely to result in an uneven and underexplained selection of sources, plucked out of context and distorted to fit our present preoccupations. That is not a recipe for reasoned, constrained, or accountable decision-making by someone exercising judicial review in a democracy. Even if the concurrence’s approach to interpreting the Second Amendment were theoretically justified—again, a question bracketed here—it does not appear to be a workable or desirable method of rights adjudication in practice.

III.   The Underdeterminacy Problem

Finally, even granting the natural law method and its application in Range, it is striking how little it accomplishes for the decision. The analysis of Cicero, Roman law, and Aquinas leads the concurrence to conclude as follows: “Taken together, these principles instruct that the natural right of self-preservation does not extend to bearing arms in a manner that undermines the common good.”55 That is quite broad. This conclusion does not resolve the actual Second Amendment question in Range, or many other contested questions in Second Amendment litigation. Indeed, a final problem with the concurrence, and with its method more generally, is that a classical-tradition inquiry is likely to produce highly general principles that do not help to resolve close constitutional cases. And insisting that they do merely leads to unexplained decision by ipse dixit. In theory, this problem may be linked to the selectivity problem described above: The more one selects among sources, perhaps the more specific principles one can construct, whereas a broader array of sources is more likely to converge only on highly general principles. In fact, though, the underdeterminacy problem seems inherent in natural law reasoning generally. When trying to distill objective moral truths, it’s simply difficult to get beyond highly abstract principles.

Consider the following claims: (1) Legislatures can ban assault weapons because they pose a risk of public terror and mass murder so out of proportion to their utility for lawful purposes that their possession undermines the common good; and (2) Legislatures cannot ban assault weapons because such a ban would take arms from ordinary law-abiding citizens who have not threatened the common good. The concurrence’s natural law principle is too general to help choose between these claims. Or, more to the point, consider a claim about 18 U.S.C. § 922(g)(1), the law challenged in Range: It is constitutional in all applications because those who have committed sufficiently serious crimes have shown a propensity to disregard the common good and cannot be trusted not to bear arms in a manner that undermines it. Again, there is nothing in the concurrence’s general principle itself that necessarily leads us to reject that claim and accept the Third Circuit’s contrary conclusion.

What actually determines Judge Matey’s conclusions in Range is perhaps not lessons derived from any classical tradition. Rather, it is his reading of the historical evidence and, familiarly, his choice of level of generality in analyzing that evidence. He appeals to natural law on occasion in analyzing the history but fails to explain how his natural law principles actually help. To take one example, he analyzes proposed language for the Second Amendment from the Pennsylvania state ratifying convention, which would have specified, “no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.”56 This would seem to be significant evidence for a Founding Era understanding of a right to bear arms that permits disarming for the commission of crimes. But the concurrence reads the source differently: “The natural reading of these proposals is that ‘crimes committed’ concern acts posing a ‘real danger of public injury.’”57 And although the concurrence cites then-Judge Barrett’s dissent in a Seventh Circuit decision for support, it also adds that it chooses this reading because it “accords with the natural law principle against taking innocent life that informs American firearm regulations.”58 The concurrence does not explain, however, why this broad principle could not equally support what is, pace Judge Matey, the more natural reading of the Pennsylvania proposal: that one could be disarmed because of crimes committed or because of a danger of public injury. The Second Circuit, in upholding the same law invalidated in Range, ably explained why this interpretation is the most straightforward reading of the proposal, which “clearly proposes permitting disarmament in the disjunctive,” using the word “‘or’ . . . how it is usually employed—to present two alternative bases for permissible firearm restrictions.” Why would it not accord with the natural law principle against taking innocent life to rely on criminal conduct as a relevant factor in prophylactically disarming people so as to avoid firearm misuse? The general principle the concurrence invokes can do little, if any, work here.

Because such natural law principles are too general to adequately resolve the specific legal questions that arise in a case like Range, the method risks reducing to decision by ipse dixit. The concurrence jumps from broad, malleable principles to narrower rules without clear explanation or justification, and with no account for why the same principles do not lead to opposite, yet equally plausible, results. The Range concurrence indicates, then, that a natural law approach to the adjudication of the Second Amendment right (and likely other rights) will do little to help resolve difficult or close cases. And without some other method or doctrinal framework to decide cases, relying solely on natural law or classical-legal principles as if they do provide the answers can lead to arbitrary, underexplained—and therefore unaccountable—decision-making.

Conclusion

To many observers, Bruen and its history-and-tradition method have their fair share of problems. The natural law approach as practiced in Judge Matey’s Range concurrence would seem to multiply and intensify them. It introduces even greater problems of selectivity, arbitrariness, and unpredictability; even greater problems of misunderstanding historical sources through contemporary frames and assumed myths of transhistorical continuity; and even greater problems of democratic legitimacy. Others might disagree. But those who champion something like the Range concurrence’s use of Aquinas and ancient sources should at least be clear that this is not merely applying Rahimi’s focus on “principles.” A natural law or classical-legal approach to Second Amendment adjudication would represent a significant shift in current constitutional doctrine and it requires justification on its own terms. 

The Range concurrence does not provide that satisfactory justification. What it does provide, though, is a fascinating document of our current constitutional moment. Just as originalism has become dominant on the Supreme Court, conservative constitutional thought has seen a splintering of methods and theories. This has largely been a matter of scholarly discourse, but the Range concurrence shows this tumult starting to find its way into federal courts. The concurrence also demonstrates some ambivalence about how to channel these movement shifts into judicial opinion, at least in the lower federal courts, ultimately seeking to harmonize a common good constitutionalism with originalist doctrine. In doing so, the opinion takes advantage of the vagueness of the history-and-tradition method, treating it as a license for consulting an array of historical-philosophical sources without precise justification or methodological guideposts. In short, the Range concurrence shows conservative constitutional methods at a crossroads.

This Essay sounds a note of caution about one way out of that crossroads—a common good or classical-legal method by which courts adjudicate rights disputes by reference to natural law principles gleaned from what is deemed the classical tradition. If Bruen was already a step away from a reasoned, democratically accountable doctrine for courts facing Second Amendment disputes, the natural law approach on offer in Judge Matey’s Range concurrence would take us only further down an ill-advised path.

* * *

Erik Pugh Fredericksen is a Constitutional Law Fellow at Everytown for Gun Safety. This Essay reflects only his personal views.

• Justice Holmes looms large over the topic of natural law. He played a significant role in the positivist revolution that largely displaced natural law reasoning. See Stuart Banner, The Decline of Natural Law 1–2, 2 n.1 (2021) (describing how natural law reasoning “almost completely disappeared from the legal system in the late 19th and early 20th centuries”); id. at 174 (describing Justice Holmes as “the most famous of the early critics of natural law”). Justice Holmes’s vision in his Lochner dissent of a constitution that, amid conditions of pluralism, defers to the political process on certain substantive value questions is (to put it mildly) relevant to debates over common good constitutionalism. See, e.g., Adrian Vermeule, Common Good Constitutionalism 66–67 (2022) (criticizing Holmes’s Lochner dissent).
• 124 F.4th 218 (3d Cir. 2024) (en banc).
• Id. at 222.
• 142 S. Ct. 2111 (2022).
• Compare Range, 124 F.4th at 229–32, withid. at 246–51 (Phipps, J., concurring), id. at 256–73 (Krause, J., concurring), id. at 286–89 (Roth, J., concurring), and id. at 292–94 (Schwartz, J., dissenting).
• Range, 124 F.4th at 232–37, 241–45 (Matey, J., concurring).
• See id. at 236–37.
• See, e.g., id. at 244 (adopting a non-literal interpretation of a proposed 1787 Pennsylvania amendment, in “accord[ ] with [a] natural law principle”); id. at 245 (rejecting an interpretation of historical evidence because it, “most importantly, disregards [ ] natural law principles”).
• 554 U.S. 570 (2008).
• For a historical account of how nineteenth-century American courts variously invoked natural law reasoning in adjudicating the right to keep and bear arms, see Professor Jud Campbell’s article Natural Rights, Positive Rights, and the Right to Keep and Bear Arms.

  Somewhat differently, Professor Darrell Miller has offered a “thought experiment” that applies common good constitutionalism to the Second Amendment, suggesting that it could shift constitutional analysis to focusing on “the public provision of safety, broadly understood according to the terms of the classical tradition.”

• Vermeule, supra note 1, at 8.
• See infra Part I.
• See infra Part II.
• See infra Part III.
• See generally Vermeule, supra note 1.
• Cf. id. at 1–2 (“[A]ll attempts to combine originalism with the classical view of law are ultimately incoherent, an attempt to mix oil and water.”).
• Range, 124 F.4th at 232 (Matey, J., concurring).
• See,e.g., United States v. Rahimi, 144 S. Ct. 1889, 1907–09 (2024) (Gorsuch, J., concurring); id. at 1924–25 (Barrett, J., concurring).
• 144 S. Ct. 1889 (2024).
• See Range, 124 F.4th at 232–33 (Matey, J., concurring) (citing Bruen, 142 S. Ct. at 2127, 2131–33; Rahimi, 144 S. Ct. at 1897–98).
• Id. at 234–35 (quoting The Federalist No. 31, at 193 (Alexander Hamilton) (Clinton Rossiter ed., 1961)).
• Id. at 235 (citation omitted) (quoting 1 William Blackstone, Commentaries *61).
• Id. at 232 (citations omitted) (first quoting Rahimi, 144 S. Ct. at 1898; then quoting 1 Blackstone, supra note 22, at *61; then quoting Rahimi, 144 S. Ct. at 1898).
• Judge Matey is notthe only one to see an opening for natural law reasoning in Rahimi’s invocation of traditional principles.
• Range, 124 F.4th at 233 (alterations in original) (citations omitted) (first citing Bruen, 142 S. Ct. at 2131–33; then citing Rahimi, 144 S. Ct. at 1898; then quoting John Henry Newman, An Essay on the Development of Christian Doctrine 178 (Longmans, Green & Co. 1909) (1845); then quoting Vermeule, supra note 1, at 123).
• Id. at 234 n.4.
• Rahimi, 144 S. Ct. at 1898.
• Bruen, 142 S. Ct. at 2130.
• Rahimi, 144 S. Ct. at 1898.
• Id.
• Id. at 1896 (citing Bruen, 142 S. Ct. at 2130).
• Id. at 1898.
• Seeid. (“The law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’” (quoting Bruen, 142 S. Ct. at 2133)); see also Rahimi, 144 S. Ct. at 1904 (Sotomayor, J., concurring) (understanding Rahimi’s methodological clarification as concerning how the “historical inquiry” is “calibrated”); id. at 1925–26 (Barrett, J., concurring) (characterizing Rahimi as addressing a “level-of-generality” problem and noting that “[h]istorical regulations reveal a principle, not a mold”).
• See id. at 1898–1901. Professor Cass Sunstein’s article on analogical reasoning, cited approvingly by Bruen, see 142 S. Ct.at 2132, describes that method as “a version of ‘bottom-up’ thinking” in which “[i]deas are developed from the details, rather than imposed on them from above.”
• See supra note 8.
• Range, 124 F.4th at 238 (Matey, J., concurring).
• Id. (alterations in original) (citations omitted) (first quoting Edward Coke, The Third Part of the Institutes of the Laws of England 161–62 (London, M. Flesher 1644); then quoting 2 William Hawkins, A Treatise of the Pleas of the Crown ch. 63, § 9, at 22 (7th ed. 1795)).
• Id.
• Coke, supra note 37 at 161 (emphasis added). The Latin phrase, drawn from Ovid, means roughly, “the laws allow taking up arms against those who are armed.”
• Range, 124 F.4th at 238 (Matey, J., concurring).
• Cf. Rahimi, 144 S. Ct. at 1925 (Barrett, J., concurring) (expressing concern about reliance on “‘tradition’ unmoored from original meaning” (quoting Vidal v. Elster, 144 S. Ct. 1507, 1531 (2024) (Barrett, J., concurring in part))).
• Cf. Paul B. Matey, “Indispensably Obligatory”: Natural Law and the American Legal Tradition, 46 Harv. J. L. & Pub. Pol’y 967, 980 (2023) (“If judges are to carry on their work faithfully, they must embrace the ‘canons of moral reasoning that guided the Founders themselves when they had set about to frame a new government.’” (quoting Hadley Arkes, Beyond the Constitution 23 (1990)).
• See Range, 124 F.4th at 236–37 (Matey, J., concurring).
• Others have offered similar critiques of Vermeule’s common good constitutionalism, including that its “peculiar” account of the common good overlooks “[t]he actual natural law tradition on which the framers of the Constitution relied.”
• SeeRange, 124 F.4th at 237–41 (Matey, J., concurring) (analyzing English legal history).
• Id. at 235–36 (quoting Bruen, 142 S. Ct. at 2134).
• 4 William Blackstone, Commentaries *149 (emphasis added).
• Range, 124 F.4th at 236 (Matey, J., concurring).
• On the importance of appreciating that our access to laws like the Lex Cornelia is heavily mediated through later sources, see, for example, Jill Harries, Law and Crime in the Roman World 24–25 (2007).
• Range, 124 F.4th at 236 (Matey, J., concurring) (citing J. Inst. 4.18.5 (J.B. Moyle trans., 5th ed. 1913)).
• Id. at 244–45.
• Id. at 236 (quotation marks omitted) (quoting Dig. 1.1.3 (Florentinus, Institutes 1)).
• Id. (emphasis added) (quotation marks omitted) (quoting Dig. 1.1.3 (Florentinus, Institutes 1)).
• Id. at 242.
• Range, 124 F.4th at 237 (Matey, J., concurring).
• Id. at 244 (emphasis in original) (quoting The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents (Dec. 18, 1787), reprinted in 2 The Documentary History of the Ratification of the Constitution 618, 623–24 (Merrill Jensen ed., 1976)).
• Id. (quoting Kanter v. Barr, 919 F.3d 437, 456 (7th Cir. 2019) (Barrett, J., dissenting)).
• Id.