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12/16/2022

Stephen Halbrook on the Second Amendment after Bruen [Updated]
Michael Ramsey

At Volokh Conspiracy, Stephen Halbrook (Independent Institute) is guest blogging on gun rights cases after the Supreme Court's Bruen decision.  Here are the posts so far:

America's Rifle -- The AR-15 is protected by the Second Amendment

 "Plain Text" -- When the Second Amendment's plain text covers conduct, it is presumptively protected. 

Did the Fourteenth Amendment Alter the Meaning of the Second Amendment? -- 1791, not 1868, is the key date for determining the original understanding of the Second Amendment 

Should Courts Appoint Historians as Experts in Second Amendment Cases? Courts, not “experts,” should say what the law is 

On the 1791 vs. 1868 issue (which is the one I'm most interested in):

When proposing the Fourteenth Amendment to Congress in 1866, Senator Jacob Howard referred to "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press; … the right to keep and bear arms…." He averred that "the great object" of the amendment was "to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." The design was not to change the nature of the rights, but to prevent the states from violating them.

The Second Amendment was ratified in 1791, and the Fourteenth Amendment was ratified in 1868. The Supreme Court stated in D.C. v. Heller (2008) and repeated this year in N.Y. York State Rifle & Pistol Ass'n v. Bruen: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them." So do we look for that understanding in 1791 or in 1868?

The simple answer would be that the substantive nature of the right is defined by reference to its origins in 1791, while the understanding that it's a fundamental right intended to be applied to the states would be found in 1868. But litigation-driven, preconceived outcomes are at work, few firearm restrictions existed at the Founding but more were adopted in the decades after the Fourteenth Amendment, and the incentive thus exists for opponents of the right to keep and bear arms to root for 1868 as the crucial date in order to find historical analogues to current restrictive laws.

...

The object [of the Fourteenth Amendment] was thus to extend the right to all citizens, not to change the nature of the right. As McDonald explained, Bill of Rights guarantees incorporated under the Fourteenth Amendment are enforced against the states "according to the same standards that protect those personal rights against federal encroachment." Just as the meaning of the rights to free speech and against unreasonable search and seizure are found in the understanding of 1791, so is the meaning of the right to keep and bear arms. The Supreme Court has never found that the primary meaning of any provision of the Bill of Rights is to be determined by how it was understood in 1868.

...

The sources cited [to the contrary]—a pre-Heller book by Prof. Akhil Amar and a pre-Bruen essay by Prof. Kurt Lash—fail to make a convincing case that the meaning of the Bill of Rights changed in 1868. First, its guarantees against federal violation have always been applicable since its ratification in 1791, and it would be incongruous to have a different Bill of Rights applicable to the states. Second, Supreme Court precedent has always looked to the 1791 understanding as the crucial period for the meaning of the guarantees, and a contrary rule invented for the Second Amendment has no basis in those precedents. Third, advocates of the 1868 theory rely on the privileges-or-immunities clause of the Fourteenth Amendment, but the Court has never relied on that clause for incorporation. And fourth, there is no indication that anyone at the time thought that this is what the Fourteenth Amendment would accomplish, and there is nothing in the text of the Amendment to support it, either.

From an originalist perspective, I think fourth point is the one that really matters (if true).

UPDATE:  A further post:

Analogical Reasoning and the Second Amendment

From the introduction:

In Bruen, the Supreme Court held that "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." To justify a regulation, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." And that depends on whether there is a relevantly-similar historical analogue.

In assessing a modern restriction, "this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge." A green truck is not relevantly similar to a green hat if the subject is things you can wear. I would add that an antebellum ban on carrying a Bowie knife concealed is not relevantly similar to a current ban on possession of a rifle or magazine. As Bruen instructs, we look at "how and why the [modern and historical] regulations burden a law-abiding citizen's right to armed self-defense." Under that test, a modern requirement to register all guns would not be analogous to a historical requirement that a militiaman must exhibit his musket at muster.

And from later on:

In his Bruen dissent, Justice Breyer asked, "will the Court's approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?" He quotes Saul Cornell describing "law office history" as "a results oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion." Cornell is further cited for arguing that Heller was wrongly decided. Indeed, Cornell joined in an amicus curiae brief in Heller claiming that "the private keeping of firearms was manifestly not the right that the framers of the Bill of Rights guaranteed in 1789."

But Professor Cornell engages in what I call "history office law," which means that some historians make claims about legal history to reach preordained conclusions that betray their ignorance of statutory interpretation. A 1795 Massachusetts law made it an offense to "ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth." Cornell would cross out everything after "go armed," as if doing so "offensively" and in a manner that created "fear or terror" to others were not elements of the crime. Such distortions are routine on the part of anti-Second Amendment historians.

So Justice Breyer is correct that some judges and others may write "to produce a preordained conclusion," but his alternative of "interest balancing" through means-ends scrutiny is far worse, because it actually encourages that tendency. ...