Jurisprudence

Barrett and Gorsuch Have to Choose Between Originalism and Expanding Gun Rights

To stick to purported originalist principles, or not.
Photo by Jonathan Ernst-Pool/Getty Images

The decision this week of the Supreme Court to hear its first major Second Amendment case in more than a decade is momentous in many ways. Scholars and jurists have been clamoring for years for the court to clarify its landmark, but opaque 2008 decision, District of Columbia v. Heller. The core holding in Heller has not been much disputed in the intervening years. According to Heller, the Second Amendment protects the right of individuals to have a functional handgun in the home for reasons of self-protection. What has not been clear in the 13 years since the decision was rendered is how far outside of the home Heller’s individual rights view of the Amendment extends. In the case now before it, New York State Rifle and Pistol Association v. Corlett, the court will have to offer a concrete answer to this question. What is the scope of the Second Amendment right to bear arms outside of the home? The case will also force two of the court’s newest justices to choose between Heller’s precedent of extending gun rights and the purported originalist methodology put forth in the ruling.

Justices Neil Gorsuch and Amy Coney Barrett have each staked out strong originalist views. Both jurists insist that their approach is not reflective of ideology, but instead a rigorous methodology. Moreover, both justices have argued that when their preferred methodology yields conclusions that are not politically congenial to them, they are willing to accept outcomes that may support liberal policy preferences they personally oppose. In the case of the Second Amendment, both justices are about to be tested. More than a decade of rigorous research by scholars working in a variety of sub-fields have demonstrated that key elements of the Heller decision were premised on flawed historical claims. Heller’s many errors have been thoroughly debunked and discredited, time and again. Any effort to expand Heller’s scope in Corlett will require the court’s current originalists to ignore this impressive body of scholarship and abandon their pledge to apply their own methodology in a neutral fashion.

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Heller argued that its conception of the right to keep and bear arms rested on a pre-existing English right to have arms and carry them in public. Unfortunately, new work by English historians Tim Harris, Priya Satia, and Lois Schwoerer—three of the most distinguished scholars of British history teaching on this side of the Atlantic—undercut this claim. To support its view Heller relied almost exclusively on the work of a single libertarian scholar, Joyce Lee Malcolm, the NRA’s Patrick Henry Professor, who now teaches at the Antonin Scalia School of Law. Contrary to Malcolm’s ahistorical libertarian view of British history, Harris, Satia, and Schwoerer build on a strong scholarly consensus about the meaning of the English Declaration of Rights. Indeed, at a conference in England cohosted by the Duke Center for Firearms Law and Pembroke College Oxford, leading English historians in attendance were astounded to learn that the Supreme Court had accepted Malcolm’s vision of the past and its views of gun toting Englishmen as gospel truth. Malcolm’s account is beyond idiosyncratic, it rests on claims that few serious English historians would credit as plausible. There simply was no free-standing right of English subjects to travel armed in public under English law. Outside of a narrow list of well recognized legal exceptions to this general prohibition, mostly situations where individuals were expected to assist in preserving the King’s Peace by participating in community-based forms of law enforcement, such as the posse commitatus, traveling armed was a crime under common law. The Statute of Northampton, enacted during the reign of the English monarch Edward III, expressly prohibited traveling armed in “fairs, markets or elsewhere.” Traveling armed was by its very nature a challenge to the King’s authority and an affray, a common law crime against the peace of the realm. More importantly, several states enacted their own versions of this ancient law limiting armed travel in public around the time the United States formed as a nation.

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Another major problem with Heller that will now confront Gorsuch and Barrett was that it relied heavily on a small body of legal cases from the slave owning South and ignored the rest of America’s legal history. In part, Heller’s historical blind spot reflected the paucity of scholarship about the history of gun regulation, an omission that has been rectified in the decade since the case was decided. The expansive libertarian vision of gun rights that Heller found in parts of the antebellum slave South did not encompass other parts of the new nation. Outside of the Slave south a tradition more favorable to gun regulation emerged and took hold. This new American legal theory limited armed travel to individuals who had a good cause to arm. Traditional English common law relied entirely on community-based law enforcement to address such threats, but the new American model recognized that there would be some situations in which individuals had to have a right to armed self-defense.

In contrast to modern gun rights ideology, the new American approach was not libertarian, but an adaptation of the of the Founding generation’s idea of well-regulated liberty. This new American approach to self-defense law and the right to bear arms first took hold in Massachusetts. The state’s distinguished jurist, Peter Oxenbridge Thacher, one of the new republic’s most esteemed authorities on criminal law, made this observation about his own state’s limits on public carry. “In our own Commonwealth,” he wrote authoritatively, “no person may go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to apprehend an assault or violence to his person, family, or property.” Gun rights advocates have dismissed Thacher’s unambiguous account of the law in his own state, because his statement was issued in grand jury charge, an event that they erroneously claim was merely ceremonial and hence has no legal significance. In fact, grand jury charges, particularly in New England, were solemn public occasions that offered leading judges an opportunity to explain the meaning of the law to citizens. Grand jury charges were sometimes published, and this one was reprinted in the popular press of the day, a fact that only underscores its importance. In short, Thacher’s exposition of the law was exactly the type of source that originalists ought to value most: an explanation of the law by an esteemed legal authority crafted to be comprehensible to an audience of ordinary citizens at a key moment in American legal history. Yet, modern gun rights advocates, including their allies on the bench, have preferred the views of slave owning judges in the South over the clear statement of one of pre-civil war America’s leading experts on criminal law. It is surely one of the oddest features of Justice Scalia’s version of originalism that he thought these Southern slave owning judges who wrote decades after the adoption of the Second Amendment provided a better guide to its meaning than the members of First Congress who penned its words. Indeed, in his somewhat testy majority opinion in Heller, Scalia dismissed Justice John Paul Stevens’ dissent for its heavy reliance on sources drawn from the First Congress.

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In another of Heller’s odd intellectual moves, Scalia read the Second Amendment backwards, and in the process effectively erased the text’s preamble. To justify this unusual reading strategy, an interpretive approach that Stevens reminded his colleagues on the bench had never been done in the court’s history, Scalia cited legal treatises written decades after the adoption of the Second Amendment. Once again, to obtain his preferred result Scalia rummaged among sources written a half a century after the adoption of the Second Amendment to find evidence of the text’s original meaning. Such a move only makes sense if one believes that nothing significant happened in American legal history between the adoption of the Second Amendment and the Civil War, a view most historians would find bizarre and erroneous. Curiously, Justice Scalia did not turn to a legal source more readily available that was written at the same time as the Second Amendment. John Jay, the first Chief Justice of the Supreme Court and co-author of The Federalist, had ruled on this issue in 1790s. Jay wrote: “A preamble cannot annul enacting clauses; but when it evinces the intention of the legislature and the design of the act, it enables us, in cases of two constructions, to adopt the one most consonant to their intention and design.” In essence, when two possible readings of a constitutional text are possible, the preamble ought to serve as the tie breaker. Scalia disregarded this Founding era rule and applied a different rule that gained prominence decades later so that he could advance his gun rights vision.

Justices Gorsuch and Barrett have staked their reputations on their commitment to apply originalist methods in a neutral manner and let the evidence dictate the outcome. Will they follow through on that promise in Corlett? Research and scholarship published in the decade after Heller will force them to put their earlier promises to the test. It now seems clear that if they apply originalism in a neutral fashion they will have to choose between Heller’s methodology and Heller’s conclusions.


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