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'.

06/23/2016

Ilya Somin on Originalism, Regulatory Takings and Murr v. Wisconsin
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Thoughts on the California amicus brief in Murr v. Wisconsin – an important takings case currently before the Supreme Court.  It begins:

In April, the state of Nevada filed an amicus brief that I coauthored on behalf of Nevada itself and eight other state governments in Murr v. Wisconsin, a major property rights case currently before the Supreme Court. The case addresses an important question about when property owners are entitled to compensation under the Takings Clause of the Fifth Amendment: whether a regulation that might otherwise be a taking might cease to be one merely because the owner of the affected lot also happens to own other property contiguous to it. Our brief is an unusual example of state governments standing up for property rights in the Supreme Court.

Recently, a group of nine other states, led by California, filed an amicus brief supporting the other side in the case, and in part responding to ours (pp. 23-26). While I am grateful to California for focusing on our arguments, I think their attempted rebuttal does more to highlight the weaknesses in Wisconsin’s position than to bolster it.

On the originalism aspects:

California contends that, because the original understanding of the Fifth Amendment did not contemplate compensation for regulatory takings, the Framers did not have “any view regarding the definition of the relevant property parcels” in such cases. Therefore, [its brief] suggest[s] that the text and original meaning imposes no constraints on state manipulation of parcel boundaries in order to avoid paying compensation. This argument ignores the actual text of the Fifth Amendment, which simply states that “just compensation” must be paid whenever private property is “taken” by the government, without making any distinction between different types of takings. It also ignores the scholarship we cite in our brief indicating that regulatory takings were in fact contemplated by the Founding Fathers, and by early court decisions, as part of the then-dominant “natural law” understanding of property rights (4-5). Whatever was true when the Fifth Amendment was first enacted in 1791, regulatory takings were a well-understood and widely accepted concept by the time it became applicable to the states as a result of the adoption of the Fourteenth Amendment in 1868. And most regulatory takings (including the one in this case) are initiated by state and local governments.

California also completely ignores the extensive early case law we cited indicating that takings compensation should follow parcel boundaries (6-9). Even if regulatory takings were not specifically contemplated at the time of the Founding, that does not mean the Supreme Court should just disregard the original understanding of the importance of individual parcels in American takings law.

The originalist foundation of regulatory takings doctrine is an important topic; among other things, the supposed lack of such foundation has been used by critics like Cass Sunstein to accuse Justices Scalia, Thomas and others of inconsistency in their pursuit of originalism.  It would be great if this case were to offer an opportunity for the Court (or at least some Justices) to set out an originalist defense (which was, one must admit, sadly lacking in the key modern case Lucas v. South Carolina Coastal Council).

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.  

The Interactive Constitution on the Declare War and Commander-in-Chief Powers
Michael Ramsey

The Interactive Constitution is an interesting project of the National Constitution Center, described here:

In the Interactive Constitution, scholars from across the legal and philosophical spectrum interact with each other to explore the meaning of each provision of the Constitution. Here’s how the Interactive process works: Scholars are selected with guidance from leaders of the American Constitution Society and the Federalist Society—two prominent constitutional law organizations that represent different viewpoints on the Constitution. Leaders of each organization recommend scholars to write about each provision of the Constitution. The pairs of scholars find common ground, writing a joint statement of what they agree upon about that provision’s history and meaning. Then the scholars write individual statements describing their divergent views on that part of the Constitution.

The Interactive Constitution is a three year project. So far, we have completed Interactive materials for the first 15 Amendments of the Constitution. During the course of the next two years, we will complete Interactive materials all of the provisions of the Constitution. In the meanwhile, yet-to-be completed provisions of the Constitution are annotated with materials from Annenberg Classroom.

In a recently posted part of the project, Stephen Vladeck and I write on the declare war clause and the commander-in-chief clause.  We don't end up disagreeing on much, especially on the declare war clause.  Perhaps the editors should have picked someone more pro-executive than I am.  I do try to explain the strongly pro-executive view, even though I don't accept it.  And I have a somewhat more expansive idea of what military actions the President can take short of war, as outlined in this article. On the commander-in-chief power, I argue that the President has a narrow set of exclusive powers, basically in line with this article.  This is more than Professor Vladeck wants to acknowledge, but still less than the strong pro-executive position.

In any event, the project is an excellent one, even if our exchange is less contentious than some might hope.

06/21/2016

New Book: "The Bill of Rights: The Fight to Secure America's Liberties" by Carol Berkin
Michael Ramsey

Recently published, by Carol Berkin (Baruch College, History): The Bill of Rights: The Fight to Secure America's Liberties (Simon & Schuster 2016).  Here is the book description from Amazon:

“Narrative, celebratory history at its purest” (Publishers Weekly)—the real story of how the Bill of Rights came to be: a vivid account of political strategy, big egos, and the partisan interests that set the terms of the ongoing contest between the federal government and the states.

Those who argue that the Bill of Rights reflects the founding fathers’ “original intent” are wrong. The Bill of Rights was actually a brilliant political act executed by James Madison to preserve the Constitution, the federal government, and the latter’s authority over the states. In the skilled hands of award-winning historian Carol Berkin, the story of the founders’ fight over the Bill of Rights comes alive in a drama full of partisanship, clashing egos, and cunning manipulation.

In 1789, the nation faced a great divide around a question still unanswered today: should broad power and authority reside in the federal government or should it reside in state governments? The Bill of Rights, from protecting religious freedom to the people’s right to bear arms, was a political ploy first and a matter of principle second. The truth of how and why Madison came to devise this plan, the debates it caused in the Congress, and its ultimate success is more engrossing than any of the myths that shroud our national beginnings.

The debate over the Bill of Rights still continues through many Supreme Court decisions. By pulling back the curtain on the short-sighted and self-interested intentions of the founding fathers, Berkin reveals the anxiety many felt that the new federal government might not survive—and shows that the true “original intent” of the Bill of Rights was simply to oppose the Antifederalists who hoped to diminish the government’s powers. This book is “a highly readable American history lesson that provides a deeper understanding of the Bill of Rights, the fears that generated it, and the miracle of the amendments” (Kirkus Reviews).

At the L.A. Review of Books, Stephen Rohde has a positive review: A Stronger Constitution: Carol Berkin’s “The Bill of Rights”.  From the introduction:

In The Bill of Rights: The Fight to Secure America’s Liberties, Carol Berkin, the presidential professor of History at Baruch College and a member of the history faculty of the Graduate Center of CUNY, Emerita, combines prodigious research and an engaging writing style to provide a fresh look at the fierce political battles over amending the brand new Constitution to add express protections for individual rights. In a relatively brief but erudite account of this pivotal period in American history, Berkin has mastered key source materials to present a nicely paced story laced with lively wit and sure-footed assessments of her important subject.

Berkin considers the Declaration of Independence and the Bill of Rights “the two greatest written legacies of the Revolutionary generation.” She insists that the “men who produced the Bill of Rights were neither demigods nor visionaries. They were mere mortals, some brilliant, some quite ordinary, most of them wealthier and better educated than their neighbors.” Berkin’s most powerful insight is to place readers in the very specific circumstances the Founders faced. For them there was no guarantee that the new government they were building would last. Instead of viewing the Bill of Rights as just a lofty statement of high-minded principles, Berkin demonstrates through contemporaneous letters and speeches how these 10 amendments helped quell widespread opposition to the new Constitution and ensure popular support for the new and more energetic federal system of government.

(Via Legal History Blog).

Note: Professor Berkin is also the author of A Brilliant Solution: Inventing the American Constitution (Mariner Books 2003).

06/20/2016

Call for Papers: Originalism Works-in-Progress Conference, February 2017
Michael Ramsey

[Editor's note: the following announcement is posted on behalf of me, my colleagues Michael Rappaport and Steven Smith, and the USD Center for the Study of Constitutional Originalism.]

On February 17-18, 2017, the Center for the Study of Constitutional Originalism at the University of San Diego Law School will hold its Eighth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference.  The conference will include approximately 6 or 7 unpublished papers on originalism, with commentary from invited scholars, and then questions from the other participants at the conference.

We invite all interested scholars to submit a work-in-progress for the Eighth Annual Conference.  A work in progress is a draft paper in article or book chapter form that is not yet published as of the conference date.  An originalism paper is defined broadly to be any paper that argues for or against originalism as a matter of theory, or applies originalism to some aspect of the Constitution.

Submissions should take the form of a one to three page abstract (and, if you like, an initial draft).  The Originalism Center will select an appropriate range of papers to be presented at the conference.  Submissions can be sent to us now, if possible, but in any event by the end of August.  We will ask that the selected papers be circulated to conference participants in late January, 2017.  The Center will cover travel expenses, lodging, and meals for paper authors and commentators.  The Call for Papers page is here.  

In addition to paper authors and commentators, we would like to invite all scholars who do work on originalism to attend and participate in the conference by reading the papers and joining in the discussion.  The Center would be happy to pay for the principal meals for those attending the entire conference but not giving a paper or serving as a commentator.  

We hope you will be able to join us in San Diego.  Also, feel free to forward this invitation to anyone you believe would be interested.  If you have any questions, do not hesitate to contact any of us. 

06/19/2016

New Book: The Emergence of One American Nation, by Donald Fraser
Michael Ramsey

Recently published: Donald J. Fraser, The Emergence of One American Nation: The Revolution, the Founders, and the Constitution (Fraser & Associates, 2016).  Here is the book description from Amazon: 

Divisiveness is the hallmark of American politics today. Red state versus blue; liberal versus conservative; secular versus religious; the list goes on. Sometimes it seems we are no longer one nation, but in fact we are. Division and argument have always been a part of the American scene, no more so than at our founding.

In the Emergence of One American Nation, Donald J. Fraser explores the difficulties that the founding generation confronted in molding the United States into one nation. At the heart of that endeavor was the effort to create and ratify a new Constitution for the country, one to replace the failed Articles of Confederation. Fraser not only explains the American leaders’ process of constitution making, but places it clearly in the context of the separation from Great Britian, the drafting of the Declaration of Independence, and fighting the Revolutionary War. 

Fraser’s work not only tells of the events that led to the creation of one American nation, but also includes engaging portraits of the individuals who helped bring about the revolution and the new political order under the Constitution, including Franklin, Washington, Adams, Jefferson, Madison, Hamilton, and a host of lesser known but interesting characters.

06/18/2016

Evan Bernick on the Role of the Judiciary
Michael Ramsey

At Huffington Post, Even Bernick: The Constitution’s Keystone: Why Our Independent Judiciary Was No ‘Afterthought’ (responding to this New York Times Op-Ed by Barry McDonald [Pepperdine]: Eight Justices Are Enough).  Professor McDonald argues in part: 

The Supreme Court today is both political and powerful in ways that would be unrecognizable to the framers of the Constitution. They penned a mere five sentences creating a “supreme Court” and defining its jurisdiction. The judicial branch was something of an afterthought for them, because they believed that in a democracy the elected branches would be responsible for governing the country.

Judicial review, in its modern sense, did not exist. As the framers envisioned it, the justices appointed to the Supreme Court would mainly interpret and apply federal law when necessary to resolve disputes involving the rights of individuals. And though the framers’ views on the court’s role in interpreting and enforcing the Constitution are the subject of debate, it seems most likely that when disputes required determining whether a federal law comported with the Constitution, the court’s interpretation was supposed to bind only the parties in the particular case — not the legislative and executive branches generally.

Bernick responds:

McDonald proceeds from false premises about the Constitution’s substantive mission and the constitutional role of the judiciary, and he arrives at conclusions that are incompatible with judges’ constitutional duty.

Professor McDonald’s analysis is driven by what I have referred to as the “myth of majoritarianism”—the belief that the Constitution’s primary substantive mission is the facilitation of majority rule. Gallons of scholarly ink have been spilt in the course of efforts to reconcile the Constitution’s purportedly majoritarian character with the existence of an independent judiciary, staffed by unelected judges who are empowered to give authoritative expositions of law that bind elected officials. The myth of majoritarianism is responsible for an enduring academic obsession with the“countermajoritarian difficulty” that judicial review supposedly poses in a majoritarian democracy.

Although it has many adherents, the myth of majoritarianism is both false and pernicious. The Constitution authorizes and circumscribes government power in order to protect individual rights from the minoritarian tyranny of the few and the majoritarian tyranny of the many. No more does the government created by “We the People” have the authority to deprive individuals of the “blessings of liberty” that (according to the Preamble) the Constitution was “ordain[ed] and establish[ed]” to “secure,” than does the Declaration of Independence, by stating that governments derive their “just powers” from the “consent of the governed,” confer legitimacy upon governments that systematically violate “unalienable rights.” The Constitution’s mission of rights-protection is evident in both its explicit protections for individual rights and its structural limits on democratic decision-making, which create numerous chokepoints through which legislation must pass and which serve to prevent any government entity from attacking individual rights unopposed.

Once we understand the function of the Constitution’s architecture, we can appreciate how an independent judiciary serves as its keystone.

Earlier, Lyle Denniston had some similar thoughts at Constitution Daily: Constitution Check: Was the Supreme Court only an afterthought for the Founders?  He argues:

[The Court's power] is generally understood to mean the power to decide what the Constitution means and to enforce it against the actions of Congress and the Executive Branch.  It is true that this authority was questioned during the constitutional ratification period, but it is also true that those directly involved in writing and promoting the basic document did not share that skepticism.  They believed that an independent system of courts was vital to human liberty, and the rights guaranteed by the Constitution.   To them, it was hardly an afterthought.

Historians generally accept that Alexander Hamilton’s essay No. 78, in the Federalist Papers, was a true reflection of what the founding generation believed about the judiciary.  And it was less than a generation later – a mere 15 years – that Chief Justice John Marshall famously declared that “it is emphatically the province and duty of the judicial department to say what the law is.”  That was what Marbury v. Madison stood for in 1803, and stands for today.

In every generation, it seems, revisionist ideas come back into vogue in the nation’s public discourse about the Constitution, and not uncommonly the suggestion arises that the Supreme Court is far too powerful and needs to be put back into the limited place that, supposedly, the founding generation wanted it to have.

This is sometimes offered as “originalist” thinking about what the Constitution truly meant in the 18th Century.  True, there were “anti-Federalists” who fretted back then about the power that the new Supreme Court would have, as Hamilton recognized and as he sought to answer in Federalist 78.  Hamilton’s view[s], surely, were closer to the prevailing sentiment at the time than were those who simply did not want the new Constitution even to be ratified.   They did not get their wish.

It seems to me, though, that there is a big difference between the Court playing the active role that Hamilton envisioned and what the modern Court does.

06/17/2016

Fact-Sensitivity of the Constitutional Referent
Chris Green

Apropos of Mike Ramsey's post below and Will Baude's request that I call my office, I think I want to take Mike Dorf's side here.  It is possible for everyone at the time of the Founding to agree about a constitutional outcome, but nonetheless to be wrong.  Everyone at the time the Constitution was drafted (at least, everyone who mattered when the interim rules of Art. I, sec. 2, cl. 3 were drafted) thought that it was constitutional to give more representatives to Maryland than to North Carolina. But that conclusion depended on the incorrect-but-apparently-universal belief among the relevant Founders that Maryland's free-population-plus-three-fifths-of-its-enslaved-population was larger than North Carolina's (see here at 1623). The constitutional rule is "according to their respective numbers," and that applies to the actual facts, even if all of the relevant Framers got those facts wrong. Similarly, as Mike Dorf explains, if "bear" in the context of the Second Amendment means "bear in the home or in public, subject to governmental restrictions as to manner," then it might be permissible to regulate the manner of public arms-bearing  (e.g., by requiring open carrying), even if it would not be permissible to ban public arms-bearing altogether. Whether concealed-carry bans are constitutional might depend on whether they are paired with open-carry bans. If they were not paired with open-carry bans at the Founding, then the Founders' partly-fact-dependent conclusion would not be binding on us today, because it was not actually baked into the Constitution itself.

"Semantic originalism" is a term which I think Ronald Dworkin invented in his reply to Scalia's Tanner Lectures to make a point which I think works better if put in terms with a longer philosophical pedigree. I use "original textually-expressed sense," building on a tradition in the philosophy of language going back to Gottlob Frege (and beyond; a very influential seventeenth century logic textbook by Arnauld and his colleagues made the same distinction) to make the same point (at least, a point which I think is the same as Dworkin's!).  It's not absolutely clear quite what Dworkin meant by the term, but he distinguished between "semantic originalism" and "original expectations originalism"; I take Dorf's "First Order Originalism" to be likewise anchored solely in original expectations (Fregean referent, Carnapian extension, and Millian denotation, as I would put it), rather than higher-order notions like meaning (Fregean sense, Carnapian intension, or Millian connotation, as I would put it). 

As I see 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. Building cars changes the referent of "car," but not its sense. Banning open carry might likewise change the referent of the category "the right of the people to keep and bear arms," while leaving the binding sense expressed by those words (as originalists rightly insist) unchanged.

Michael Dorf on Originalism and Concealed Carry (with my Comments)
Michael Ramsey

Michael Dorf at Dorf on Law: Second Thoughts About the Ninth Circuit's Second Amendment First-Order Originalism. It begins:

Late last week, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit rejected a Second Amendment challenge to a California law that requires one to demonstrate "good cause" to county officials in order to obtain a license to carry a concealed firearm. The ruling,Peruta v. County of San Diego, is notable in part for what it does not decide. The plaintiffs argued that the SCOTUS rulings in District of Columbia v. Heller and McDonald v. City of Chicago protect an individual right to possess firearms for self-defense that applies outside as well as inside the home, and that in combination with another California law generally forbidding open-carry of firearms, the good-cause requirement operates as a de facto ban on public-carry for anyone who cannot show a special reason for a concealed-carry permit.

The en banc opinion by Judge Fletcher does not exactly reject that argument but concludes that it is not presented because the plaintiffs did not challenge the law restricting open-carry. [ . . . ] The court then concludes that there is no right to carry a concealed firearm.

Professor Dorf then discusses Judge Fletcher’s historical methodology:

The opinion carefully parses sources dating back to the end of the thirteenth century to show that there has never been a right to carry a concealed firearm: not in England; not in colonial America; not at the Founding; not in the period leading up to the adoption of the Fourteenth Amendment; and not since. With respect to the state of the law when the Fourteenth Amendment was adopted, the court concludes that "an overwhelming majority of the states to address the question — indeed, after 1849, all of the states to do so — understood the right to bear arms, under both the Second Amendment and their state constitutions, as not including a right to carry concealed weapons in public."

Judge Fletcher is not by any means a thoroughgoing originalist, but Heller and McDonald purport to find the individual right to possess firearms in the home in the historical understandings of the Second and Fourteenth Amendments, so Judge Fletcher turns the tables on the proponents of gun rights: If history is the basis for finding a right to firearm possession in the home, then it is also the basis for rejecting a right to carry a concealed firearm in public.

The post moves to discuss first-order originalism and its place in Second Amendment interpretations:

But do Heller and McDonald really command what we might call first-order originalism in all Second Amendment cases? By first-order originalism I mean an approach that seeks to answer every question about the scope of the Second Amendment (or the Fourteenth, when state and local laws are at issue) by a historical test.

There is some support for first-order originalism in Heller itself. For example, in discussing permissible limits on the right to possess firearms, the Heller opinion states:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

[I]f the longstanding-ness of limits on firearms possession by felons or on bringing firearms into sensitive places like government buildings validates those limits, then one can sensibly argue that the longstanding-ness of prohibitions on concealed carrying of firearms validates a permit requirement to carry a concealed firearm.

And yet there is something wrong with first-order originalism even for a right that is justified in originalist terms. [ . . . ] The question is not to be resolved by looking to history as a first-order matter. Rather, history establishes the scope of the right as a semantic matter: the Second Amendment covers weapons "in common use," but in giving content to "common use" courts should ask what weapons are in common use today, not what weapons were in common use in 1791 or 1868.

I think Heller and McDonald were wrongly decided. Moreover, I'm not an originalist of any sort. However, I do think that if one is going to be an originalist, semantic originalism makes a lot more sense than first-order originalism. Many questions will be unanswerable by first-order originalism, because they only arise in modern circumstances. Moreover, fashioning sensible doctrine requires the courts to make the law cohere, which is not always possible using a strictly historical test.

My thoughts: I'm not at all following this distinction between "semantic originalism" and "first order originalism" (plus I have a hard time not thinking of "first order" originalism as a Star Wars reference).   It seems to me that the straightforward question is whether the right to "keep and bear Arms" is "infringed" by concealed carry restrictions.  And since concealed carry restrictions were known in the founding era, we can assess that question by asking what the founding era thought of concealed carry restrictions.  That's basically the way Judge Fletcher framed the issue.  Whether he got the right answer or not is a different matter, but David Kopel thinks he did, and I would not argue with Professor Kopel on this issue.  

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.  I'd be surprised if many actual originalists disagree with this analysis, whatever Professor Dorf thinks they should think.