[The conservative Supreme Courts favorite judicial philosophy
requires a very, very firm grasp of history — one that none of the
justices seem to possess.]
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THE SUPREME COURT’S FAUX ‘ORIGINALISM’  
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Joshua Zeitz
June 26, 2022
Politico
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_ The conservative Supreme Court's favorite judicial philosophy
requires a very, very firm grasp of history — one that none of the
justices seem to possess. _

In its recent gun control decision, just like in its recent abortion
decision, the Supreme Court’s majority showed just how
intellectually fragile the originalist project really is. , Al
Drago/Getty Images

 

“Originalism has been the reigning constitutional theory of legal
conservatives since the election of Ronald Reagan,” a contributor to
the National Review
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recently, with glowing approval. The theory, which views jurisprudence
as frozen in time, flatly rejects the idea of the Constitution as a a
living and evolving document and instead demands that we interpret its
provisions exactly as the framers intended.

This week, what was once a fringe intellectual concept, confined to
conservative legal circles, achieved its ultimate ascendance. In a
decision that purports to rely on deep historic knowledge of the
founding generation’s views on gun control, the conservative
majority on the Supreme Court knocked down a New York State law
limiting the concealed carry of firearms. Drafted by Justice Clarence
Thomas, the decision applies a strict originalist frame to conclude
that “[o]nly if a firearm regulation is consistent with this
Nation’s historical tradition may a court conclude that the
individual’s conduct falls outside the Second Amendment’s
unqualified command.’”

Thomas’ decision, endorsed by his five Republican-appointed
colleagues, builds on the court’s earlier, originalist decision
in _District of Columbia v. Heller_, which located in the Second
Amendment an _individual_ constitutional right to own firearms.

There’s just one problem. Both decisions get the history wrong.

There is ample reason to disagree with originalism as a legal
philosophy. Should a 21st century society really interpret its
Constitution by the standards of 1787 — an era before the
introduction of semi-automatic weaponry, steam power, penicillin,
automobiles, trains, electric lights and indoor plumbing? In some
ways, though, that’s a pointless debate at the moment. With
originalists holding six of the Supreme Court’s nine seats, we’re
all living in an originalist world.

The _functional_ problem with originalism is that it requires a
very, very firm grasp of history — a grasp that none of the nine
justices, and certainly few of their 20-something law clerks, freshly
minted from J.D. programs, possess.

It’s difficult to become an expert in American political, legal or
social history. It’s quite easy, though, to cherry-pick historical
examples that prop up an end in search of a rationale — which is
precisely what the Supreme Court majority did this week, twice.

In its recent gun control decision, just like in its recent abortion
decision, the Supreme Court’s majority showed just how
intellectually fragile the originalist project really is.

“A WELL REGULATED MILITIA, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall not
be infringed.”

Many Americans find the Second Amendment poorly constructed and
confusing. Historians do not. In the 18th century, when Congress
passed and the states ratified the amendment, political consensus held
that rights and obligations were two sides of the same coin. “The
rights of persons that are commanded to be observed by the municipal
law are of two sorts,” wrote Sir William Blackstone, the eminence
grise of Anglo-American legal scholarship. “First, such as are due
from every citizen, which are usually called civic duties; and second,
such as belong to him, which is the more popular acceptance of rights
… reciprocally, the rights as well as the duties of each other.”

As it pertained to gun ownership, the right to bear arms was
inextricably connected to the citizen’s _obligation_ to serve in a
militia and to protect the community from enemies domestic and
foreign.

The concept of a “well-regulated” community — one in which order
prevailed, and one which male citizens had a duty to uphold — was
not a rhetorical quirk specific to the Second Amendment. It was a
pervasive term. The founding generation shared a widespread belief
that there was a tension between “natural liberty and those
principles of equal security established in a well-regulated
society.” In this context, most Americans in the 1790s would have
found the Second Amendment crystal clear. The federal government could
not prevent citizens from dispatching their obligation to protect
their communities, namely, by maintaining armed militias.

The Pennsylvania state constitution, adopted in 1776, and often cited
incoherently by opponents of gun control, was perfectly clear on this
point when it affirmed that “the people have a right to bear arms
for the defense of themselves and the state.” Notably, this
provision did not appear alongside sections establishing individual
rights to free expression and religion. There was a distinction,
observed Albert Gallatin, who later served as Pennsylvania congressman
and U.S. Treasury secretary, between “a declaration of the rights of
the people at large or considered as individuals.” And on this
point, the Pennsylvania constitution was unambiguous. “The freemen
of this commonwealth and their sons shall be trained and armed for its
defence under such regulations, restrictions, and exceptions as the
general assembly shall by law direct.”

Scribble Scrabble, the pen name of an influential polemicist in
Massachusetts (it was common for prominent men to write
pseudonymously), echoed this prevailing logic when he held that the
Massachusetts “Bill of Rights secures to the people the use of arms
in common defense.” As for the _individual_ right to bear arms, it
existed, Scribble Scrabble maintained, it “being a natural right,
and not surrendered by the constitution” — unless and until the
“legislature shall think fit to interdict.” Meaning, under the
terms of the commonwealth’s new constitution, the _right_ to bear
arms joined with militia service was constitutionally guaranteed; the
right to bear arms in an individual capacity was a natural and common
law right that the legislature _could_ proscribe.

In the case of the Second Amendment, Congress sought to assuage the
concerns of antifederalists who feared the rise of a large standing
army that might stamp out Americans’ liberties, much as the British
army had done in the 1760s and 1770s. The amendment provided that
Congress could never deprive people the right to own firearms in the
dispatch of their obligation to fulfill militia service. The right to
own a gun for individual self-protection was a different — a matter
of common law that, as Scribble Scrabble noted, could be expanded,
modified or taken away by legislation.

The distinction between collective rights and obligations to bear
arms, and individual rights to gun ownership, was widely understood.
In Virginia, Thomas Jefferson attempted to include a specific
individual right to bear arms in the state constitution, to complement
the existing provision safeguarding militias. His effort failed.
Similar efforts failed in other states.

One might argue that early state constitutions were distinct from the
federal Constitution approved by convention in 1787. But these early
state documents deeply informed the federal effort in Philadelphia.
The discussion around their adoption lends an understanding of how
Americans thought about rights in the late 18th century.

But to appreciate how the founding generation thought about firearm
regulation, we can look at what they _did_, and not just what they
said. James Madison, the author of the Bill of Rights, twice
introduced state legislation in Virginia that would impose penalties
on any individual who “bear[s] a gun out of his inclosed ground,
unless whilst performing military duty.”

You read that right. The author of the Second Amendment drafted
statewide legislation that was effectively a forerunner to the New
York state law that the Supreme Court just struck down. The bill,
which was really aimed at regulating deer hunting, did not pass. But
it clearly demonstrated that Madison viewed individual gun ownership
as well within the state’s regulatory prerogative.

In the Early Republic, local and state authorities frequently
confiscated guns from persons they deemed a menace to public safety,
or simply disloyal. Pennsylvania denied any individual who
“refuse[d] or neglect[ed] to take the oath or affirmation” of
allegiance to the commonwealth the right to keep firearms in his
“house or elsewhere.” Massachusetts imposed the same restriction
on “such Persons as are notoriously disaffected to the Cause of
America, or who refuse to associate to defend by Arms the United
States Colonies.” Otherwise put: no loyalty, no militia service; no
militia service, no gun.

States in the Early Republic commonly regulated the concealed carry of
guns. In Ohio, “whoever shall carry a weapon or weapons, concealed
on or about his person, such as a pistol, bowie knife, dirk, or any
other dangerous weapon, shall be deemed guilty.”

They also commonly regulated gunpowder, as well, limiting the amount
of ammunition an individual could keep and store at one time. Why?
Because it was dangerous. Whole towns could catch fire and burn to the
ground. The logic of originalism would suggest that states therefore
have a right to regulate magazine sizes.

By originalism’s own, tenuous standards, the right of states to
constrict individual gun ownership is as American as apple pie. But
the Fourteenth Amendment poses its own challenges.

THE BILL OF RIGHTS ORIGINALLY PROSCRIBED what Congress could do.
States, on the other hand, were free to limit the freedom of speech,
assembly, religion and firearm ownership — the right to due process
— the right to a jury trial. And they frequently did.

The Fourteenth Amendment changed this equation. Ratified in 1868, it
established that “No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States;
nor shall any state deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”

It would take decades before the Supreme Court used the Fourteenth
Amendment to “incorporate” the Bill of Rights and thereby extend
its provisions to the states. But that was the unmistakable
trajectory.

The Republican Congress that wrote and passed the Fourteenth Amendment
did so in reaction to a very specific set of circumstances. In the
aftermath of the Civil War, former Confederate states passed a wave of
“Black Codes” that attempted to restore slavery in all but name.
State-level black codes impressed Black children into labor,
restricted former slaves’ right to assembly and speech, and,
notably, barred them from owning firearms. The amendment’s framers
clearly intended to extend the protections afforded by the Bill of
Rights to the states. These protections included the right to bear
arms, as conservative originalists — including Justice Thomas, in
his decision — consistently argue.

Again, it’s one thing to cherry-pick historical examples. It’s
another to know one’s history.

Jonathan Bingham, the amendment’s principal author, was very clear.
The new provision was intended to require equal treatment under the
law. States could not afford _some_ people the right to free
expression or assembly (or gun ownership), but not others, strictly on
the basis of race. The idea wasn’t that citizens had a right to
individual gun ownership. It was that states could not discriminate on
the basis of race.

Moreover, Republicans in 1868 were deeply invested in the maintenance
of “Negro militias,” formed by Reconstruction state governments,
that protected those same state governments from violent overthrow by
Klansmen and other while paramilitary units allied with the Democratic
Party. As in 1787, during Reconstruction, the constitutional framers
viewed gun rights through the prism of collective, communal
obligation.

The Ulysses S. Grant administration reacted with great concern when
Klansmen in South Carolina attempted to disarm Black militias whose
guns had been furnished _by_ the Republican-led state government.
Notably, in their enforcement efforts, the attorney general and U.S.
attorney for South Carolina rested their argument on the right and
obligation of citizens — Black citizens — to fulfill militia
service and thereby safeguard their local communities and state. The
question at hand, they argued, was an organized attempt to “rob the
people of their arms, and to prevent them from keeping and bearing
arms furnished to them by the State Government. Is not that a
conspiracy to defeat the rights of the citizens, secured by the
Constitution of the United States, and guaranteed by the fourteenth
amendment?”

NONE OF THIS IS TO SAY that citizens should or should not be
permitted to own guns. That’s another question.

But by its own, shaky logic, there is simply no compelling,
originalist argument for a constitutional right to _individual_ gun
ownership. Framers of the Bill of Rights firmly held that the right to
own guns existed solely in concert with the obligation to fulfill
militia service and preserve a well-regulated peace.

That doesn’t mean that states _cannot_ allow citizens to own and
carry guns, openly or concealed. If the state of Texas wants to go
that route, its legislature can (and has) passed positive laws to that
effect. But there is no historical basis for a constitutional standard
that denies New York or New Jersey the ability to restrict individual
gun ownership.

The court also relied extensively on history to prop up its decision
overturning women’s constitutional right to terminate a pregnancy,
arguing that “the overwhelming consensus of state laws in effect in
1868
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when the Fourteenth Amendment was ratified, criminalized abortion.
This is too clever by half. By the majority’s originalist standard,
we should be guided by the prevailing laws and traditions in place
when the Constitution was adopted. In the late 18th century, when
Congress drafted the Bill of Rights, common law held that abortion was
not criminal until the moment of “quickening” — the moment when
a woman first felt a fetus move or kick. She alone could attest to the
facts. In English and colonial courts, if a woman testified that her
fetus had not been quick, she was held harmless of charges. Well into
the 19th century, ads for patent abortion medicines ran prominently in
newspapers and journals. States began outlawing abortion only in the
mid and late 19th century, largely in response to efforts by (male)
doctors to de-legitimize midwives and other paraprofessionals. By
originalist logic, those laws were unconstitutional and should not be
a basis for later interpretation. My point is not that abortion is
constitutionally protected because it was a common law right in 1787.
Rather, the court’s majority is cherry-picking its history, grasping
for any historical example that props up the end it hopes to achieve.

Curiously, in the space of 24 hours, the court’s majority moved the
goal posts — 1790s for guns, 1850s or so, for abortion — in
determining what historical standard should inform the boundaries of
constitutional exegesis.

The broader problem is that originalism essentially requires judges
and their law clerks to earn a Ph.D. in American (and probably, as
well, early modern English) history. A legal theory constructed on
historical foundations doesn’t work if jurists aren’t well-versed
in history.

Otherwise, originalism becomes an unserious game of cherry-picking
examples — a political outcome in search of a supporting argument.

_JOSHUA ZEITZ, a Politico Magazine contributing editor, is the
author of Building the Great Society: Inside Lyndon Johnson's White
House
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will be released on Jan. 30. Follow him @joshuamzeitz
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* Supreme Court
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* originalism
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* Conservatives
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* U.S. history
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* Second Amendment
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