Last week, the Court heard oral argument in New York State Rifle & Pistol Association v. Bruen. The case will decide whether an individual’s right to possess a firearm extends outside the home and is the first major Second Amendment case to reach the Court since 2010. Although Bruen could impact gun rights nationwide, legal practitioners’ near-universal adoption of originalism in the case is notable in its own right.
Bruen reaches the Court in the wake of Heller, where Justice Antonin Scalia penned what he referred to as his “magnum opus.” The opinion was a new high water mark for originalism at the Court: a majority of Justices examined the text and history of the Second Amendment to determine its original public meaning instead of crafting the pragmatic balancing tests that had previously been the norm.
Although Justice Stephen Breyer authored a dissent in Heller that would have adopted a balancing test to evaluate firearm laws, his fellow living constitutionalist, Justice John Paul Stevens, took a different approach. Justice Stevens engaged with the majority opinion on its own turf—arguing that the historical evidence did not support an individual right to firearm possession.
Although Stevens failed to carry the day in Heller, his use of the originalist methodology reflected a growing recognition among non-originalist judges that originalism as an interpretive method was here to stay, and judges needed an answer. In the ensuing decade, the Court saw a net gain of originalist judges, an ostensibly textualist approach to expand civil rights, and the now famous proclamation from Justice Elena Kagan that “we are all originalists.”
Given the changed landscape, it is not surprising that many legal scholars are asking the Court to look to text, history, and tradition to define gun rights in America. But what’s remarkable is that almost no one is arguing otherwise. Sure, groups that support stricter gun laws are making policy arguments for their positions in the public square, but the constitutional fights are on originalist grounds.
This fact is perhaps best manifested by the oral argument in Bruen itself. Both briefs argued for and against the New York law on historical evidence from the time of the founding. At argument, the Justices focused the bulk of their questions on the historical record as represented by both sides. Even Justice Breyer mostly limited his questioning to the historical record, asking whether the Court’s Second Amendment precedent really got its history right. Justice Sonia Sotomayor pushed back on petitioner’ attorney Paul Clement’s argument, saying that “the history and tradition suggests that states get a lot of deference on this,” and Justice Samuel Alito took issue with what he perceived to be material omissions from quotations the State of New York employed in its brief. Notably absent from the argument was any suggestion that text, history, or tradition were irrelevant.
Regardless of the result in Bruen, it is worth reflecting that this alone should be celebrated as a success by those who have championed the originalist movement for decades. In one of his many memorable lines on the Court, Justice Scalia chastised judicial interpretation untethered from text by saying that “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” His relentless pursuit of tethering constitutional interpretation to fixed semantic meaning has borne substantial returns.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at email@example.com.