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06/22/2016

Originalism and the Second Amendment
Mike Rappaport

I thought I would weigh in on the dispute between Mike Ramsey and Chris Green on originalist theory and the Second Amendment. Ramsey writes:

"Suppose that it's right that concealed carry restrictions were common in the founding era and no one thought they infringed any constitutional right. Is Professor Dorf suggesting that they nonetheless could be unconstitutional today? I can't imagine how, as an originalist matter, that could be so. Perhaps if the text of the constitutional restriction were wholly incompatible with the founding era belief, we would say that people in the founding era had made an error. But here the language is at best ambiguous on the right to concealed carry (even if one thinks "bear[ing] Arms" means carrying them in public). If the language can be read in a way that comports with the consensus founding-era understanding of it, that seems pretty conclusive to me."

In response, Chris Green argues that if the Second Amendment had a certain meaning, it would not necessarily bind us if the people at the time applied it in an incorrect way. The meaning would be binding, not the application.

Understood in this way, I don't think Mike and Chris are necessarily disagreeing. I interpret Chris as arguing that only the meaning of the language is binding as such. And I interpret Mike as saying, that might be true, but the consensus in favor of one interpretation of the language is such strong evidence, that nothing could realistically outweigh it. And therefore the meaning of the Second Amendment language could theoretically be different than the consensus, but it is extremely unlikely to be so.

Chris, however, points out one way the consensus at the time of the Framing allowing prohibitions on concealed carry could be overridden (or shown not to be dispositive). If it turned out that prohibitions on concealed carry were never paired with prohibitions on open carry, then we would not know that such concealed carry prohibitions were constitutional when combined with open carry prohibitions. The concealed carry prohibitions might have been allowed only because people were allowed to open carry. That is, the Second Amendment might allow certain restrictions on the manner of exercising one's rights, if they allowed people alternative ways of exercising that right. (Compare the time, place and manner test of the First Amendment.)

I agree with Chris here, assuming the contingencies he specifies actually held. This shows that it is always important to keep in mind the distinction between the meaning of a provision and the evidence in favor of a meaning. Sometimes the evidence can look conclusive, but under certain circumstances, it might not be.

MIKE RAMSEY ADDS:  My initial thoughts may have been stated imprecisely.  I don't disagree with anything Mike Rappaport or Chris Green say on this point, though we may have different emphases.