Justifying the History in Bruen
Mike Rappaport
A great deal of attention has been paid to the account of history in Justice Thomas’s opinion in Bruen. What justifies, under an originalist approach, looking at the history (1) leading up to and following the 2nd Amendment’s enactment and (2) leading up to and following the 14th Amendment’s enactment? One way to understand it is that the history in (1) explicates the 2nd Amendment and the history in (2) explicates the 14th Amendment. But it is not clear why both periods need to be discussed. The Court should just figure out which Amendment matters and then explore the history for that Amendment.
But there is a way where Bruen's discussion of the history makes more sense. One way to understand applying the right to bear arms against the states is to view the Privileges or Immunities Clause as protecting the basic rights that citizens have enjoyed in free states in England and in America. This way of viewing the Privileges or Immunities of Citizens of the United States derives from language in Corfield v. Coryell, which significantly influenced the enactors of the 14th Amendment. That language stated:
The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate.
Under this view of the 14th Amendment, those fundamental rights included many common law rights as well as the rights in the Bill of Rights – the latter, not because they are part of the Bill, but because those rights happened to be fundamental.
The right to bear arms would then be a fundamental right. And to understand the content of that right, one would need to examine it for the period it existed. This would require an inquiry into its content in the free government of England, in the American colonies, and in the states from the time of independence until the enactment of the 14th Amendment. One would also want to look at the period shortly after the enactment of the 14th Amendment for insight as to how the right was understood at the time of enactment.
Thus, one can justify much of the scope of Justice Thomas’s historical inquiry by theorizing the right as one of the (unenumerated) fundamental rights that were protected by the 14th Amendment. The problem is that this view of the right being protected does not appear to be the one that the Court has taken in Bruen.