Andrew Willinger: The Territories under Text, History, and Tradition
Michael Ramsey
Andrew Willinger (Duke University School of Law, Center for Firearms Law) has posted The Territories under Text, History, and Tradition (Washington University Law Review, Volume 101 (forthcoming)) (57 pages) on SSRN. Here is the abstract:
In two of its major decisions in the 2021-2022 Term, New York State Rifle & Pistol Association v. Bruen and Dobbs v. Jackson Women’s Health Organization, the Court continued solidifying its originalist method of constitutional interpretation by looking increasingly to historical regulatory practice to construe how the Constitution protects individual rights. The Court is focused not only on the original public meaning of constitutional provisions, but also on historical practice as a key to understanding how those who lived at the relevant time thought a constitutional provision might be applied and what laws and regulations were considered consistent with that provision. Bruen and Dobbs both considered laws passed by governments in the Western territories prior to statehood in the nineteenth century, but with polar opposite results. One day the Court suggested that territorial laws and practices were exceptional improvisations wholly irrelevant to the search for a national tradition; the very next day, the Court implied that territorial laws and emerging territorial trends can be valuable tools for constitutional interpretation. This Article searches for a more satisfying and consistent theory of how to utilize territorial history in constitutional cases.
Part I critically analyzes the decision in Bruen and the Court’s determination that territorial public-carry bans could not serve as analogues to support New York’s modern gun-licensing law. Part II explains the history of continental territories, examines Dobbs and other Supreme Court decisions invoking territorial laws and practices, and identifies relevant principles from legal scholarship regarding the Court’s reliance on non-federal sources to interpret provisions of the U.S. Constitution. Part III argues that the Supreme Court’s use of territorial history in Bruen was inconsistent with its past practice, that territorial history is especially likely to reflect federal constitutional meaning because the territories were subject to the federal Bill of Rights long before those rights were incorporated against state governments, and that a text, history, and tradition methodology should accord territorial laws and practices a meaningful role.
This seems right to me as a matter of originalist methodology. I don't see why practice in the territories wouldn't be relevant, assuming it was understood (as I think it was, prior to the Insular Cases) that the Constitution applied to the territories in the same way that it applied elsewhere.