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07/22/2022

John McGinnis on NYSPRA v. Bruen
Michael Ramsey

At Law & Liberty, John McGinnis: Bruen's Originalism.  From the introduction:

The Supreme Court has just finished its most momentous term in over five decades. For the first time in almost a century, a majority of the justices are originalists, at least under a broad definition of the term. And unsurprisingly, originalism emerged as a driving force in constitutional law. At times, it operated beneath the surface of an opinion: Academic work debunking the nonoriginalist concept of “separation of church and state,” for instance, permitted the Court in Carson v. Makin to treat the free exercise clause like any other right without an atextual penumbra emanating from the Establishment Clause. But in New York State Rifle and Pistol Association v. Bruen, originalism was very much on the surface, not only governing the Second Amendment, but perhaps changing the approach to the adjudication of constitutional rights more generally.

Beyond its holding that individuals have a right to bear arms that cannot be denied at the discretion of government officials, the Bruen opinion has at least three important implications for originalist theory. First, it considers carefully how the right to bear arms would have been expected to be applied both before and around the time of its enactment. It thus endorses “expected applications” as a way to give a provision concrete meaning. Second, many, if not most, of these expected applications derive from legal context—both how the Second Amendment reflected previous law and what subsequent law said about how it was to be applied. It thus suggests that this constitutional provision which seems on its face to be written in ordinary language may require a legal gloss to be fully understood. Finally, Bruen stands for the proposition that legal doctrine can be derived from a provision’s original meaning.

And from later on:

It is important to note that Bruen leaves some methodological matters open. First, Justice Amy Coney Barret noted in her concurrence that the Court had not decided on the significance of post-enactment applications or whether the meaning of the Bill of Rights should be decided at the time of their enactment or at the time of the Fourteenth Amendment, which the Court has interpreted to apply these rights to the states. These two lacunae are related. The Court’s consideration of antebellum applications might be understood not merely as post-enactment applications of the Second Amendment as enacted in 1791, but also as pre-enactment applications that contributed to the understanding of the Second Amendment as applied through the Fourteenth Amendment in 1868.  

Second, the methodological moves of Bruen cannot necessarily be imported immediately to the rest of constitutional law. The Supreme Court faces little precedent in its decisions on the Second Amendment and thus its opinions can proceed with greater methodological degrees of freedom, because its methods will not upset the established legal order. Methodological change is much more likely to upset areas of law planted thick with precedents. That disturbance might not upset Justice Thomas, who is willing to overrule any precedent that is clearly erroneous. But no other justices may share that view, let alone a majority of the Court.