What Gun Regulations Will the Supreme Court Allow? Part Two: Originalism and the Second Amendment

This is Part Two in a two-part series of columns by Professor Dorf. Part One appeared here on Justia’s Verdict on December 26, 2012. –Ed.

In the wake of the Newtown, Connecticut, massacre, politicians and pundits have been wondering whether serious restrictions on firearms possession would be permitted by the Supreme Court. After all, in a pair of rulings—District of Columbia v. Heller in 2008, and McDonald v. City of Chicago in 2010—a 5-4 majority of the Court found that the Second Amendment guarantees a right of private possession of firearms for self-defense. As I discussed in my column last week, however, the Court also indicated that it would construe the Second Amendment to permit most longstanding gun regulations that fall short of prohibitions.

Exactly how far short of outright prohibition must a regulation fall in order to satisfy the emerging Second Amendment limit? Any answer to that question is necessarily speculative, because Heller and McDonald left so many issues open. At the very least, though, it appears that much will depend on how the Court goes about filling in the blank spaces in the Amendment. That methodological question, in turn, implicates a long-running debate about what it means for judges to follow the original understanding of a constitutional provision.

The Shift From Original Intent to Original Meaning

For generations, judges, Justices, and scholars have argued about how best to construe the Constitution. We can divide the answers into broad families of approaches. Two of the best-known such families are living constitutionalism—the idea that our understanding of the Constitution changes over time as circumstances and values evolve—and originalism—the idea that the Constitution’s meaning remains fixed, so that a provision adopted in 1791 (as the Second Amendment was) has the same meaning in 2013 that it had then.

But living constitutionalism and originalism are broad umbrellas. No two practitioners of either approach agree on all of their details. Indeed, over the last few decades, an important division has emergedamongoriginalists.

So-called “old” originalists construe the Constitution in accordance with original intent. Does the Eighth Amendment’s Cruel and Unusual Punishments Clause permit capital punishment? An old originalist asks whether the framers intended it to forbid the death penalty. Does the Commerce Clause permit Congress to require people to purchase health insurance? An old originalist asks whether the framers intended to authorize mandates.

Old originalism retains considerable force among politicians, some judges, and the general public, but these days, most scholars who call themselves originalists reject it, because critics of old originalism have successfully argued that it is flawed in various ways, including these two: (1) because constitutional change is usually the product of contentious political disagreement, it will often be impossible to locate a determinate intent that was shared by all, or even a majority, of the people who were responsible for adopting any given provision; and (2) the framers and ratifiers of the Constitution enacted language, not whatever intentions or expectations they may have had for that language, so even when a generally-shared intent can be identified, basic principles of legality point away from giving effect to that intent, apart from the meaning of the language.

Accordingly, “new” originalists argue that a modern interpreter should give effect to the original meaning of the words that the framers and ratifiers adopted, but disregard their additional intentions and expectations. To give an example that figures importantly in the academic debate, the framers and ratifiers of the Fourteenth Amendment may well have intended and expected that it would permit de jure racially-segregated schools, but the task of the modern interpreter is to ask simply what the relevant words—here, “equal protection of the laws”—meant in 1868. Thus, new originalists typically argue that Brown v. Board of Education was rightly decided, even if the framers and ratifiers approved of racial segregation, because their intentions and expectations are not part of the meaning of the words “equal protection.”

Most constitutional scholars (myself included) believe that new originalism avoids some of the worst pitfalls of old originalism, but it is not clear that new originalism differs in any substantial way from living constitutionalism. Indeed, Yale Law Professor Jack Balkin recently wrote a book with the arresting title of Living Originalism,in which he argues that new originalism is a form of living constitutionalism.

As I explained at length in a Harvard Law Review essay reviewing Living Originalism, I disagree with Balkin on some important points, but not on the central one: new originalism leaves modern readers of the Constitution with nearly the same amount of room to maneuver as do more conventional versions of living constitutionalism.

For Balkin, for me, and for others who accept the idea of a living Constitution, that is a virtue of new originalism. But many of today’s new originalists are former old originalists who believe that originalism’s chief advantage over living constitutionalism is originalism’s supposed capacity for constraining judges. For them, the charge that new originalism is simply living constitutionalism under a different name must be deeply unsettling.

Justice Scalia’s Living Second Amendment

Justice Antonin Scalia is Exhibit A of this kind of cognitive dissonance. In Justice Scalia’s academic writing and many of his opinions, he embraces new originalism. As a self-described “textualist” in both statutory and constitutional matters, Justice Scalia favors the original meaning of the text over whatever evidence exists regarding the subjective intentions or expectations of the text’s enactors.

Yet in his rhetoric, Justice Scalia also continues to talk as though his brand of originalism were much more determinate than living constitutionalism, rather than itself a form of living constitutionalism. For example, in a recent, highly-publicized speech at Princeton, he said that the Constitution “isn’t a living document. It’s dead, dead, dead, dead.”

Future Second Amendment cases may test the commitment of Justice Scalia and his fellow conservative Justices to the concept of a dead Constitution. In the Heller and McDonald cases, they relied on what they said was the original meaning of the term “keep and bear arms” to find that laws completely banning home possession of firearms are unconstitutional. As cities, states, and perhaps even Congress enact additional firearms regulations in the wake of the Newtown killings, the Court will have to decide how far government may go in limiting firearms before running afoul of the Second Amendment. The answer may depend on what kind of originalism the Court’s majority embraces.

Under a view of the historical record that I discussed in my last column, even very substantial regulation is consistent with a private right to keep and bear arms, so long as the government permits home possession of firearms. Thus, an old originalist might say that because public carriage prohibitions were permissible when the Second Amendment was adopted, they are permissible today.

By contrast, a new originalist might argue that the meaning of “keep and bear arms” is something like possess arms adequate for self-defense, and that in modern urban areas, guns may be more needed for self-defense in public than in the home. Thus, a new originalist would disregard the evidence that the framers and ratifiers of the Second Amendment intended and expected that public carriage could be banned in favor of his best application of the Amendment’s meaning to contemporary circumstances. And in so doing, he would be demonstrating just how closely new originalism resembles living constitutionalism.

Justice Scalia may say that the Constitution is dead, dead, dead, dead. But in preaching and often practicing new originalism, he shows that even in his own hands, it is alive, alive, alive, alive.