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06/24/2016

Evan Bernick on Concealed Carry and Originalism
Michael Ramsey

At Huffington Post, Evan Bernick has an outstanding and insightful addition to the conversation on Peruta v. San Diego, originalism, and concealed carry: Against Narrow and Hidebound Originalism: On Peruta v. San Diego and the Right to Armed Self-Defense.  An excerpt:

Conservative and libertarian originalists might be inclined to praise the majority’s methodology, even if they regret the outcome. This inclination should be resisted. In only pursuing the question whether concealed-weapons bans were thought to be unconstitutional hundreds of years ago, the Peruta court undermined the rule of law and compromised the rights of ordinary Americans who seek to defend themselves and their families. The court also revealed that originalism of a certain variety—an originalism tethered to the original expected applications of constitutional concepts—is incapable of keeping government officials within constitutional limits today.

...  Indeed, for reasons explained by Professor Christopher Green in a thoughtful recent post on the Originalism Blog, it is possible for everyone at the time of the ratification of a particular constitutional provision to agree about how that provision ought to apply in a particular instance but nonetheless be wrong. [Ed.: see also here from Mike Rappaport].

Fidelity to the law of the land necessarily entails departing in appropriate cases from the beliefs and expectations of those who came before us. As Green puts it, “the sense originally expressed by the text of the Constitution is what the phrase ‘this Constitution’ in Article VI makes binding, not the original reference or collection of things referred to by the Constitution.” We must add to and subtract from the collection of referents (things of a certain kind) that the Framers associated with particular concepts as needed when either the facts change or our knowledge of particular concepts develops.

And as applied to Peruta

The Ninth Circuit’s opinion in Peruta discloses the perils of relying upon original expected applications in evaluating the constitutionality of government conduct. During the time periods surveyed by the majority, courts consistently affirmed the right of citizens to carry firearms in public openly for protection. Thus, the carrying of firearms in public for self-defense was regulated but not prohibited. But because California law prohibits openly carrying firearms, San Diego and Yolo Counties’ requirement of a particularized reason for granting an application for a concealed-carry license effectively prohibits most law-abiding citizens from carrying firearms for self-defense outside the home. In focusing narrowly on the question whether concealed-weapons bans were thought unconstitutional in the past and failing to consider whether that conclusion was dependent on a social fact that is no longer present in California—namely, the existence of a legal regime that allows people to openly carry firearms—the majority missed the forest for the trees.

And in conclusion on originalism:

The enduring appeal and influence of originalism is attributable in substantial part to its promised capacity to maintain the rule of law. But the rule of law, understood as a legal regime in which the limits of government power are set by fixed, publicly-known principles of reason rather than the mere will of men, is incompatible with an interpretive approach that grounds legal authority in the subjective beliefs or expectations of any person or group of people. The rational principles in our law can only be given effect by the federal judiciary by means of objective constitutional interpretation. Objectivity in constitutional interpretation consists in disciplined, logic-guided, context-sensitive inquiry into the meaning of the Constitution’s language. Defining constitutional concepts like “the right of the people to keep and bear Arms” entails not only careful study of historical facts about word usage and linguistic practice but a firm grasp of the political philosophy that the Constitution is designed to implement as well as the function that each of its provisions plays in implementing that philosophy. (Though judges may not appeal to that political philosophy in contravention of the Constitution’s text.) It also requires us to draw upon any knowledge that we have subsequently acquired about particular concepts and their referents.

There's a lot I agree with here (and reading the whole post is important to get the full scope of the argument) -- but there are also some things I don't.  As to Peruta, if the rule at the founding was that open carry was allowed and concealed carry was not, the implication should be that a state can ban concealed carry but if it does, it can't ban open carry.  That's consistent (I think) with what the majority said in Peruta, although it implies something about California's gun laws that a lot of people who like Peruta aren't going to like.

On the broader point, I agree with Bernick (and Chris Green) that the controlling law is the text (given its original meaning), not what the framers thought the text would accomplish.  However, perhaps in disagreement with them, I think what the framers thought the text would accomplish is highly relevant to determining what the text's original meaning was.  To my mind, a conclusion contrary to what the framers thought the text meant should be disfavored (thought not precluded); it would require strong contrary evidence and probably some sort of unusual circumstances.  (As an aside, I don't think this issue is directly implicated by Peruta; the key issue in Peruta, I would say, is whether the court should have considered the concealed carry rule in isolation or in conjunction with the rest of California's gun laws -- which is something of a technicality).

I think there is a danger in dismissing too quickly what the framers thought about their text.  It's too easy to substitute what we think the text means (to us) for what we think the text meant in the founding era.  And I find particularly worrying the admonition that originalism "requires us to draw upon any knowledge that we have subsequently acquired about particular concepts and their referents."  That seems to me an invitation to substitute our wisdom (such as it is) for the framers'.