“Presumption of Constitutionality”

On Thursday, in American Legion v. American Humanist Association, the Supreme Court held that a Latin cross installed over ninety years ago on public land to commemorate fallen World War I soldiers did not violate the Establishment Clause.    In doing so, Justice Alito, writing for the plurality, shied away from the much-criticized Lemon test and instead opted for “a presumption of constitutionality for longstanding monuments, symbols, and practices” that have religious connotations.

Alito argued this was a better course — memories fade, motivations (illicit or benign) for beginning a practice or building a monument may be lost; and the practice or monument may become, over time, so well-accepted that “[f]amiliarity itself can become a reason for preservation.”   Retaining these public practices and monuments is the conservative route, for “[t]he passage of time gives rise to a strong presumption of constitutionality.”

Justice Kavanaugh in his concurrence stated that the Court had adopted a “history and tradition” test for Establishment Clause cases, and observed that “[t]his Court is  not  the  only  guardian  of  individual  rights  in  America.”  The federal constitution is merely a floor: States and localities, according to Kavanaugh, are free to extend individual rights beyond what the Establishment Clause protects.

Justice Gorsuch, joined by Justice Thomas, agreed with the result, and the historical focus of the plurality opinion, but went further.   “What matters,” he said, isn’t a practice’s age “but its compliance with  ageless  principles . . . . [A] practice  consistent  with  our  nation’s  traditions  is  just  as  permissible whether undertaken today or 94 years ago.”

It’s impossible to read this opinion and not think of the late Justice Scalia’s guarantee that District of Columbia v. Heller cast no doubt on the constitutionality of “longstanding,” “presumptively lawful regulatory measures.”    Indeed, Justice Alito uses some of same terminology in this opinion.   If something like nine decades is sufficient to give a strong presumption of constitutionality to government-sponsored religious practices, what about firearm regulations that are about as old, or much, much older – as, for example, prohibitions on carrying concealed weapons; the licensing and registration of firearms; or prohibitions on taking firearms to places of public amusement or assembly?

When Justice Kavanaugh confronts a firearm regulation that is old, but perhaps not as old as 1791, does he err on the side of upholding the regulation, comforted by the fact that, as he says “[o]ther  federal,  state,  and  local  government  entities  generally  possess authority to safeguard individual rights above and beyond  the  rights  secured  by  the  U.  S.  Constitution”?

And what are the ageless principles of the Second Amendment?  Self-defense is one, as everyone agrees.   But so is balancing firearm ownership and use with public safety, as the long history of regulation shows.   If Justice Gorsuch confronts a challenge to a prohibition on firearms in airplanes (regulations that are far less than 94 years old) does the “ageless principle[]” of keeping firearms out of congested areas qualify to uphold the regulation?