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Lawrence Rosenthal: Litigating Original Meaning from Heller to Bruen
Michael Ramsey

Lawrence Rosenthal (Chapman University, Dale E. Fowler School of Law) has posted Nonoriginalist Laws in an Originalist World: Litigating Original Meaning from Heller to Bruen (American University Law Review, Vol. 73, No. 2, forthcoming 2023) (67 pages) on SSRN.  Here is the abstract:

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the Second Amendment, in District of Columbia v. Heller. Last Term, the Court, in New York State Rifle & Pistol Association v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need.

There is a great deal to criticize in the Court’s treatment of the original meaning of the Second Amendment in the line of cases beginning with Heller and culminating in Bruen. That is the focus of Part I. Part I observes that by the time of Bruen, the Court had taken to ignoring the Second Amendment’s preamble altogether; a position difficult to reconcile with the view taken of preambles in both the framing era and Heller itself. The Court had managed to both acknowledge and then ignore the demonstrable ambiguity in the meaning of the Second Amendment right to “bear arms.” These errors seriously distorted the Court’s purportedly originalist analysis.

Part I is a relatively conventional example of the type of legal scholarship that dissects Supreme Court opinions. Part II takes a less familiar turn by focusing on the lawyering of those who defended the laws at issue in these cases. After undertaking to show that the Supreme Court’s decisions should not be regarded as autonomous, but instead as reflecting to a considerable extent the arguments pressed on it,

Part II demonstrates that the Court’s errors mirror serious litigating errors by the attorneys defending the laws at issue in these cases. These flawed litigating strategies reflect, Part II shows, an incomplete grasp of the conceptual underpinnings of originalism as a method of constitutional interpretation. Lawyers defending statutes or other legal regimes without clear framing-era antecedents must develop a more sophisticated understanding of originalist constitutional interpretation.

Part III offers a guide for avoiding the kind of errors reflected in the thus-far unavailing efforts to defend challenged firearms regulation from Second Amendment attack, in both Second Amendment litigation and other areas of constitutional law.

And here is the conclusion, with which I entirely agree:

Originalism, especially in the view of its advocates, is a deeply theorized approach to constitutional interpretation. Those who litigate in any court dominated by originalists—or obligated to adhere to originalist precedent—must frame their arguments in a manner consistent with originalist theory. Originalist theory, in turn, requires more than cherry-picking a handful of historical precedents that seem roughly analogous to a contemporary regulation under constitutional attack.

Perhaps the attitudinal model is so powerful that even litigating strategies solidly rooted in originalist theory cannot prevail when they seek outcomes inconsistent with the policy or political preferences of the current majority of the Supreme Court. Nevertheless, unless lawyers develop litigating strategies rooted in originalist theory when litigating before an originalist Court, we may never know whether it is the lawyering or the attitudinal model that explains the Court’s outcomes. We ought to find out.