Last week, the Supreme Court heard oral arguments in New York State Rifle & Pistol Association Inc. v. Bruen, the case that will decide the future of concealed carry in the United States. Following those arguments, it has become crystal clear that the conservative wing of the Supreme Court is once again determined to apply originalism in a selective fashion to achieve its preferred political outcomes. The court appears to be perfectly happy to trot out originalist rhetoric when it serves its interests and abandon it entirely when the historical record does not support its political goals.
Over the past decade, multiple scholars, writing on both sides of the Atlantic, have uncovered a voluminous historical record of gun regulation largely invisible to the court that decided the landmark decision on gun rights, District of Columbia v. Heller, because the sources were not then easily available to legal researchers. That historical record not only demonstrates that arms have been closely regulated when carried in dense and populous areas for more than 700 years, and it showed that New York’s own law was part of a constitutional transformation in gun regulation during the era of the 14th Amendment that swept across the nation. Having cast their lot with history in Heller, the court’s purported originalists now wish to cast aside that history to further the cause of gun rights. The court’s originalists are on the verge of embracing a radical living constitutional vision of the Second Amendment that would have made the activist judges of the Warren Court era blanch.
Multiple justices in the oral argument in Bruen confessed their discomfort with treating the Second Amendment differently than the way modern courts treat other rights. Of course, anyone who takes the time to study legal history would realize that we do not now and never have treated all rights the same. Requiring a permit to march, or to undertake a building project on your own property, is not tyranny. All rights—including inalienable rights, a legal term that itself derives from English property law—have always been subject to regulation. Just because you owned a tannery, did not mean you got to dump lye into the stream a mile from your neighbor. The same principle has always applied to guns.
Given that Heller tied the Second Amendment to individual self-defense, one would think that a proper understanding of that complex history ought to have informed the court’s oral arguments, but sadly it did not. Under English common law, the use of deadly force was permitted in the home, but strictly limited outside of the home. So, from its very inception, the right of self-defense was related to geography and social space in a unique way. Outside of the home, one had a duty to retreat, not stand your ground under common law. In short, the scope of the right was fundamentally shaped by where the right was exercised. The strength of the right diminished as one moved farther away from the home and into more populous areas. Thus, the Statute of Northampton (1328), a law that was extensively discussed in the Bruen oral argument, singled out sensitive places such as courts and populous areas such as fairs and markets as locations that one could not travel armed unless one was acting to preserve the peace. The conservative justices seemed to confuse the two concepts, subsuming populous areas into sensitive ones. A federal courthouse is a sensitive place; Grand Central Station is a populous one.
Justice Amy Coney Barrett’s musings that Times Square on New Year’s Eve might be an appropriate place to regulate guns is instructive in this regard. At the time that the Second Amendment was adopted, the entire population of Manhattan was less than a third of the number of individuals found in Times Square on any given day of the year other than New Year’s Eve. As it turns out, the use of guns on New Year’s and other holidays was prohibited in early New York because it posed a threat to innocent bystanders. In the case of guns, liberty is a zero-sum game. Increasing gun owners’ rights will inevitably constrict the rights of others, a fact that the court’s originalist judges seem happy to ignore.
The Statute of Northampton and its American analogs were not just regulations of sensitive places or times. These types of laws sought to demilitarize places of commerce and civic life because the presence of arms undermined civil society, the peace, and freedom itself. As the insurrection on Jan. 6 made clear, limiting the ability to travel armed in public enhances the liberty of all Americans, even if it may temporarily diminish the liberty of some gun owners. The court’s conservative justices’ concern about self-defense has blinded them to the rights of ordinary Americans to enjoy the peace and participate in public life. The generations that wrote the Second Amendment and the 14th did not suffer from the same type of constitutional myopia. The so-called originalists now on the court and their ever-expanding vision of the Second Amendment threaten to swallow what remains of the First Amendment.
During Reconstruction and the era of the 14th Amendment, states and localities drew on this ancient tradition of protecting the public sphere by passing a variety of laws limiting where guns were allowed. Oklahoma’s law is illuminating in this respect:
It shall be unlawful for any person, except a peace officer, to carry into any church or religious assembly, any school room or other place where persons are assembled for public worship, for amusement, or for educational or scientific purposes, or into any circus, show or public exhibition of any kind, or into any ball room, or to any party or social gathering, or to any election, or to any place where intoxicating liquors are sold, or to any political convention, or to any other public assembly, any of the weapons designated in sections one and two of this article.
New York’s permit law was modeled on laws enacted during Reconstruction. Under any serious originalist analysis, this fact alone would render them presumptively lawful under the Heller/McDonald history, text, and tradition mode of analysis. Dozens of similar laws were passed in towns and cities across America. At the time they were passed, these laws were all understood to be consistent with the Second Amendment. Moreover, recent historical research has demonstrated that these laws were vigorously enforced and applied in a racially neutral manner until the era of Jim Crow, when Southern racists used them to dismantle Reconstruction, often at the barrel of a gun. The notion that these laws are now suddenly unconstitutional because today’s justices find that they are hard to reconcile with their modern ideas about rights makes a mockery of originalism; it does not vindicate it. This is little more than right-wing living constitutionalism for guns.
The oral argument in Bruen demonstrates that the conservative wing of the court is not sincerely interested in history, text, and tradition if the evidence cuts against them. What they are intent on doing is vindicating gun rights, rewarding the base of the Republican Party, and recasting the scope of the Second Amendment so that it resembles other modern rights transformed by the Warren Court and left-leaning champions of a living constitution. In his opening remarks, Paul Clement correctly noted that the current scope of Second Amendment rights does not match the robustness of modern First Amendment rights or criminal procedure rights. But the operative word here is modern. The original understandings of the First Amendment and criminal procedure rights, both in the founding era and the period of Reconstruction, were anemic by contemporary standards. There is nothing inherently wrong with Republicans and their Federalist Society–groomed justices supersizing the Second Amendment. The left got its supersized rights in the 1960s, so now it is the right’s turn. The one thing such an approach is not consistent with is the right’s claim that originalism is principled, neutral, and intellectually rigorous.