In Bruen, Justice Thomas observed that the Second Amendment, like the First Amendment, should be interpreted with an originalist standard. Thomas wrote that with the freedom of speech, "to carry that burden, the government must generally point to historical evidence about the reach of the First Amendment's protections." Really? That was news to me. Throughout the entire twentieth century, the Supreme Court erected an elaborate and intricate free speech jurisprudence. There are tiers of scrutiny, balancing tests, categorical tests, and more. But very little of the free speech caselaw could be called originalist. Sure, in some cases, the Court talks about history. But this jurisprudence was manufactured from the ground up.
Nowadays, the Court seems to eschew this sort of free-floating judging. Even when the Court develops new doctrine, it tries to ground those principles in history. But Counterman v. Colorado felt like a throwback to a different era. This case considered what the proper mens rea was in a true-threats case. Justice Kagan wrote the majority opinion, which was joined by Chief Justice Roberts and Justices Alito, Kavanaugh, and Jackson. Should it be purposeful, knowing, or recklessness? The majority chose a recklessness standard. Why recklessness? Justice Kagan explained:
Among those standards, recklessness offers the right path forward.
