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11/13/2021

Saul Cornell on Originalism and the Concealed Carry Case [Updated with Comment from Professor Cornell]
Michael Ramsey

At Slate, Saul Cornell (Fordham - History): The Supreme Court’s Latest Gun Case Made a Mockery of Originalism.  From the introduction:

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.

...

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.

And from the conclusion:

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 ... 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 [counsel for the claimants] 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 [the Court] 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.

I agree that the fact that some rights have expanded beyond their original scope doesn't mean originalists should support expanding Second Amendment rights in the same way.  On the specific question of Bruen, the "sensitive places" argument seems to be beside the point.  I would want to know whether there is a history of licensing  (or comprehensive bans) for concealed carry.

UPDATE:  Saul Cornell comments:

The evidence strongly supports New York. Between 1812-1876 over 50 statutes were passed banning concealed carry in America.  By the time New York's discretionary permit law passed, dozens of localities had adopted this model and multiple constitutional commentators acknowledged that it was consistent with the Second Amendment. In my U.C. Davis Law Review article, I calculate that almost half of California was living under a discretionary permit scheme by the dawn of the 20th century.  So if the Court strikes down the New York law and claims that ruling is consistent with Heller's history, text, and tradition approach, it will seriously weaken originalism, at least applied by the Supreme Court. Obviously, academics can not be held liable for the sins of judges. But the claim that originalism is a neutral methodology and that judges can apply it fairly and rigorously will be harmed.   It actually puts me in a bind. If the originalist judges uphold the law it will force me to recant part of my critique of originalism. If they strike the law down, I will be vindicated, but a system that has resulted in New York having much lower gun violence rates than Texas or other permissive carry states would be wiped from the books.