Anyone watching the Supreme Court this past term may have remarked on the frequency with which the justices talk about fossilized tree resin. Consider:
- The court in Trump v. Cook: “We see no reason, however, why our central bank ought to be ‘trapped in amber’ any more than any other aspect of our constitutional scheme.”
- The court in Watson v. Republican National Committee: “Statutes do not ‘tra[p] in amber’ every contemporary practice on the same subject matter.”
- Justice Sonia Sotomayor in Cisco Systems v. Doe I: “There also is no indication that Congress intended to ‘tra[p]’ the [Alien Tort Statute] ‘in amber.’”
- Justice Ketanji Brown Jackson in Wolford v. Lopez: “Such a narrow search results in a ‘law trapped in amber.’”
- Justice Elena Kagan in Trump v. Slaughter: “When, exactly is our law ‘trapped in amber,’ and when is it not?”
- Justice Brett Kavanaugh in Trump v. Barbara: “This Court’s constitutional precedents do not treat the 1791 or 1868 exceptions as a closed set ‘trapped in amber.’”
- Justice Amy Coney Barrett at oral argument in United States v. Hemani: “I agree with you that you don’t need to have just alcohol because that’s all there was at the founding and that would be trapped in amber.”
The expression has become increasingly popular in the lower courts, too. Earlier this week, law professor Richard Re traced the history of the metaphor and its rapid spread over the past two years.
As Re correctly recognizes, though early uses of the phrase evoked a living Constitution – one whose meaning evolves over time – each of the references collected above traces back to a line in the Supreme Court’s originalist decision in United States v. Rahimi, in which the court upheld a federal law that disarms those under a domestic violence restraining order. There, the court used the phrase to clarify that its Second Amendment precedents “were not meant to suggest a law trapped in amber.” The court continued:
[T]he reach of the Second Amendment is not limited only to those arms that were in existence at the founding. Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.
At the time, professor Josh Blackman predicted that the “amber” line would become “the most quoted sentence” in the opinion, and a way for judges to escape the original meaning of the law. I’ll leave the citation counts to more empirically inclined court-watchers, but the evidence Re collects vindicates Blackman’s prediction to this extent: the metaphor has become a flashpoint in the contest over what it means to do originalism.
Properly understood, originalism indeed holds that law is fixed – "trapped in amber,” if you will. But the circumstances to which it applies are not. The problem with the amber metaphor is that courts increasingly use it without distinguishing law from its application.
Originalism and amber
As Barrett explained in her Rahimi concurrence, originalism “is built on two core principles: that the meaning of constitutional text is fixed at the time of its ratification and that the ‘discoverable historical meaning … has legal significance and is authoritative in most circumstances.’” For short, scholars refer to these commitments as the “fixation thesis” and the “constraint principle.”
The fixation thesis means that something gets “trapped in amber” at the time a law is promulgated, and the constraint principle means that judges are bound to adhere to whatever that something is today. Justice Neil Gorsuch made this point in his Rahimi concurrence:
When the people ratified the Second Amendment, they surely understood an arms-bearing citizenry posed some risks. But just as surely they believed that the right protected by the Second Amendment was itself vital to the preservation of life and liberty. We have no authority to question that judgment. As judges charged with respecting the people’s directions in the Constitution—directions that are “trapped in amber”—our only lawful role is to apply them in the cases that come before us.
Nevertheless, we have repeated assurances in purportedly originalist opinions that this or that is not “trapped in amber.”
What, then, does originalism say is trapped in amber? Gorsuch calls it “the people’s directions in the Constitution.” Barrett calls it “meaning” with “legal significance.” We might, for brevity’s sake, call it “law.”
This makes the phrasing in Rahimi infelicitous: “These [originalist] precedents were not meant to suggest a law trapped in amber.” Professor Re translates the line: “the Supreme Court denied that the Second Amendment is ‘a law trapped in amber.’”
The problem is, Second Amendment precedents do “suggest a law trapped in amber.” In District of Columbia v. Heller, for example, the court explained that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”
What is not “trapped in amber” is law’s application in future circumstances. Here is how the court made the point in New York State Rifle & Pistol Ass’n v. Bruen: “Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.” The court goes on, as it did in Rahimi, to note that the Second Amendment protects “modern instruments that facilitate armed self-defense,” even if such instruments did not exist at the time of ratification.
In short, to an originalist, the law is trapped in amber; its application is not. (For a deeper discussion of this distinction, see this column from last year.)
The Second Amendment and amber
Why, then, does Rahimi deny that “law” is “trapped in amber”? It has to do with the way the Second Amendment operates: as a limit on governments’ regulatory authority. And just as it applies to new firearms, it also applies to new assertions of regulatory authority.
Rahimi does not deny that the law created by the Second Amendment is fixed. But the body of firearm law (comprised of statutes, ordinances, and common-law principles) on which it operates is not. Legislatures change that body of law for any number of reasons: political, social, economic, technological. The rules about which types of regulatory measures are permissible and which are not remain constant, but the body of statutes and regulations to which they apply is not. It is the latter body of law that is not “trapped in amber.”
The amber admonition must have seemed particularly important to the Rahimi court because the text of the Second Amendment does not describe all the contours of the right it codifies. That right “is not unlimited,” but the Second Amendment does not state what those limits are. Rather, we must infer them by looking to the “historical tradition of firearm regulation” that coexisted with the right from the start. When one must look to the laws the Second Amendment permits to determine what the Second Amendment permits, there is some risk of mistaking original applications for original law.
But dangers lie in the other direction, too. A judge wishing to escape the narrowness of the original factual conditions to which a law applied may loosen the law itself, rejecting the rule it establishes for broad principles or policies that enable the judge to range far from the original meaning.
The law and amber
Given the unique features of the Second Amendment that gave rise to an originalist court using the “trapped in amber” metaphor, one might expect it to remain trapped in Second Amendment litigation. It has not, as the examples above show.
Only two of the above cases are Second Amendment cases, and it is telling that in both, the court found it necessary to rebuff “trapped in amber” arguments, suggesting that Rahimi has led lower courts and/or litigants to overcorrect. The court’s two Second Amendment decisions this past term resoundingly reaffirm that Second Amendment law remains “trapped” where the people fixed it.
Beyond the Second Amendment, the phrase presents a threat to originalist reasoning if it is not handled with care. In the two majority opinions, it was not “law” which was “trapped in amber.” Rather, it was “our central bank” and “contemporary practice.” These are the things to which the law applies. Nevertheless, in Cisco Systems, Sotomayor denied that “Congress intended to trap the [Alien Tort Statute] in amber.” Her statement could be read to deny that those who enact laws – whether constitutional or statutory – do not fix the laws they enact. This would be antithetical to originalism.
Indeed, Re sees the rise of the phrase as a sign that the court is reconciling itself to living constitutionalism. For the reasons I’ve explained, I don’t agree, but the amber metaphor could subtly work such a change.
In her Slaughter dissent, Kagan asked, “When, exactly is our law ‘trapped in amber,’ and when is it not?” The answer is that it is always “trapped in amber,” unless and until it is lawfully changed. It endures, even as the world around it changes.
