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Mark W. Smith on the Second Amendment and the 1791/1868 Debate
Michael Ramsey

Mark W. Smith (Ave Maria School of Law) has posted “Not all History is Created Equal”: In the Post-Bruen World, the Critical Period for Historical Analogues is when the Second Amendment was Ratified in 1791, and not 1868 (61 pages) on SSRN.  Here is the abstract:

In June of 2022, the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, which was a major victory for the constitutional right to keep and bear arms. Opponents of the Second Amendment have sought to seize upon a short passage by Justice Thomas, author of the Bruen opinion, to argue in the lower courts that an originalist interpretation requires courts to look at the meaning of the Second Amendment (and thus, logically, all provisions of the Bill of Rights) when the Fourteenth Amendment was ratified in 1868, not in 1791 when the Bill of Rights was ratified.

But 1791 vs. 1868 is not an open question. Bruen found that the text of the Second Amendment plainly covers the right to carry arms in public. It also held that “to the extent later history contradicts what the text says, the text controls.” The Bruen Court adopted the view of then-Judge Kavanaugh in a D.C. Circuit Second Amendment case that “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.” In discussing Heller, the Bruen Court observed that Heller’s interest in mid-to-late 19th century commentary was secondary, and was considered only for the purpose of confirming rather than contradicting the Founding era understanding.

The Supreme Court has held that provisions of the Bill of Rights have only a single meaning, whether applied against the federal government or against the states. That meaning is fixed at the time of adoption; that is, in 1791. In numerous cases involving all of the amendments in the Bill of Rights that have been incorporated, the relevant time period has been held to be the Founding period. None has looked primarily to the post-Civil War period to determine the scope of a provision within the Bill of Rights. And for good reason. The Reconstruction period is unusual in American history, because the North was occupying the South with military force and the South was trying to disarm the newly freed blacks. Such actions during that period are therefore not representative of either the Founding period or of the American historical tradition as a whole. To the extent mid-to-late 19th century interpretations have been discussed in cases, it was never because the understandings of the ratifiers of the Fourteenth Amendment were found to prevail over those of the Founders in 1791. Instead, discussions of that 19th century history are treated as confirmation of the 1791 understanding.

The insistence by some scholars and advocates that 1868 should control is only of importance if they believe they can show that the 1868 understanding of the Second Amendment was different from the 1791 understanding. But if the 1868 understanding is different from that of 1791, it must be rejected because it is inconsistent with the text and the original meaning that is fixed at the time of adoption in 1791, based on the understandings of those who ratified the Second Amendment.

Not only has the Court never looked to 1868 as the primary period for determining the meaning of provisions of the Bill of Rights, its opinions generally do not even mention that period. Litigants in post-Bruen litigation have so far not pointed to a single Supreme Court case in which the Supreme Court has looked to the time of ratification of the Fourteenth Amendment as the principal period for determining the scope or meaning of a provision of the Bill of Rights.

Adoption of 1868 as the proper focus for determining the meaning of the Second Amendment would mean that the Supreme Court was utterly wrong in looking to the Founding period in Heller, Caetano, and Bruen. It would also revolutionize the Supreme Court’s entire Bill of Rights jurisprudence, which has uniformly looked to the Founding period when history needs to be consulted. The Second Amendment is not a “second class right,” so if the year of ratification of the Fourteenth Amendment were to be used to determine its meaning, then 1868 would also have to be used to ascertain the meaning of the other incorporated provisions of the Bill of Rights.

Any argument seeking to focus on the late 19th century for the purpose of interpreting the Second Amendment should be soundly rejected. The critical time period for courts to search for historical analogues to modern-day gun control laws is the Founding period (1791), and not 1868.

I agree this is a critically important question for originalism -- but I'm not sure what I think about it.  It may depend on why one thinks the Second Amendment (and other Bill of Rights rights) are incorporated into the Fourteenth Amendment.  See also this article by Mike Rappaport:  Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, But the Fourteenth Amendment May; and this article by Kurt Lash: Re-Speaking the Bill of Rights: A New Doctrine of Incorporation.