The Futility of Originalist Analysis in Second Amendment Cases

By Eric Segall (Cross-posted @ Second Thoughts)

In his dissent to the Supreme Court’s dismissal of New York State Rifle & Pistol Association v. City of New York on grounds of mootness, Justice Alito wrote the following about the merits of the case: “neither the City, the courts below, nor any of the many amici supporting the City have shown that municipalities during the founding era prevented gun owners from taking their guns outside city limits for practice.” After arguing that the plaintiffs should have won on originalist grounds, Alito then discussed the city’s justifications for its law (now repealed), finding that those purposes were constitutionally insufficient. In this post, I want to focus on Alito’s originalist comments.
First, it must be said that Justice Alito is no originalist (he spent most of his discussion of the merits on non-originalist concerns). Alito has expressly teased other Justices for caring about what the founding fathers who lived so long ago might or might not have thought about modern problems. In an important case raising the issue whether the police conducted a Fourth Amendment “search” by tracking a car through GPS technology, Justice Scalia rhetorically asked whether the founding fathers would have thought that a constable hiding in the suspect’s “carriage” was a search. The answer being, of course, yes. Alito responded sarcastically, “this would have required either a gigantic coach, a very tiny constable, or both -- not to mention a constable with incredible fortitude and patience."
Similarly, at the oral arguments in Brown v. Entertainment Merchants Ass’n, a case where the Court struck down a California law prohibiting the sale of violent video games to minors, Alito quipped, "what Justice Scalia wants to know is what James Madison thought about video games," and if "he enjoyed them,"
In both circumstances, Alito was suggesting that the times then and now are different enough to rule out the importance of silly analogies such as comparing today’s GPS technology to a constable hiding in the back of a carriage or between today’s violent video games and any technology available to the Founding Fathers.
For similar reasons, originalism is a particularly unhelpful way of analyzing Second Amendment issues (assuming for sake of argument the provision does protect an individual right to own guns). This disconnect is important given how important originalism (or at least originalist rhetoric) seems to be to Justices Gorsuch, Kavanaugh, and Thomas.
Take for example the issues raised by New York State Rifle & Pistol Association. The New York state law now in effect (the statute that mooted the case), according to the city’s lawyer at oral arguments, “allows gun owners with premises licenses to transport their guns to rifle ranges and second homes outside the city as long as the only stops they make along the way are ‘reasonably necessary.’” Justice Alito believed that this disclaimer was not enough to save the law’s constitutionality.
What is really at stake in this case is whether New York City (or the state of New York) may regulate the movement of handguns through the city’s crowded boroughs absent a certain set of conditions. There is little or nothing from the world of 1791 that can help us answer this question.
The most common form of originalism today is “public meaning originalism.” This method does not ask judges to inquire into the subjective intentions of the people living in 1791 (or 1868). Rather, judges should try to ascertain the original public meaning of the text. But even if this task could be accomplished with any certainty, the proposed answers would be unhelpful for two reasons. First, like all other constitutional rights, the right to “keep and bear arms” is not absolute and must be balanced against legitimate, strong, or compelling governmental concerns depending on the right at issue. There is nothing in the original public meaning of the Second Amendment that can help judges do that. Most Second Amendment cases today raise issues that the people living in 1791 did not anticipate in a context they could not have imagined. To say there is an objective public meaning of the text as applied to these new issues is nonsense.
More importantly, advocates of public meaning originalism accept that, even if we can decipher that meaning as applied to a current problem, if that original public meaning was based on incorrect facts, or if times have changed substantially, then judges are not bound by it today. In the words of Professor Ilan Wurman, who wrote a book summarizing public meaning originalism, “Originalists recognize that original meaning often requires that the application of the text evolve as modern circumstances evolve.” Similarly, Professor Ilya Somin, a self-identifying originalist, has said that nearly all originalists recognize that originalism “is entirely consistent with updating the application of its fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory.”
The issues implicated by New York residents traveling through the population-dense city with handguns by their sides has no meaningful analogue to the world of 1791. New York has changed substantially (think Times Square), transport has changed dramatically (horses versus cars and buses ), and firearms are much different today. In addition, most people with guns back then were trained to use them because they were much harder to operate than simply pulling a trigger.
If originalist judges are allowed, or according to Professor Somin, required, to take into account changed conditions and new facts when reviewing whether New York State can limit the transport of guns through New York City, then judges will simply have to balance gun rights against gun safety in today’s world under current conditions (which is what Alito did throughout his opinion).
The myriad issues in the lower courts implicating the Second Amendment also suggest the utter bankruptcy of an originalist approach to these cases. As I have written elsewhere, questions such as where people are allowed to possess guns; how many guns one person may own; whether all guns are protected or just some guns; whether states may impose rigorous licensing schemes on gun ownership; and whether automatic weapons may be regulated differently than other guns are all issues that implicate facts that have changed dramatically since the founding. Asking what the Second Amendment’s original public meaning was for these difficult issues does not and will not help judges resolve these questions.
In his concurring opinion in New York State Rifle & Pistol, Justice Kavanaugh hinted that he does not agree with how lower courts have been handing Second Amendment issues. He said that “the Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.” When the Court inevitability hears its next Second Amendment case, it may include some originalist rhetoric in its opinion, but that rhetoric will not be sufficient to resolve the difficult issues raised by the clash of gun rights and community safety. Only a clear-eyed focus on today can lead judges to good resolutions of the hard-balancing acts required by the Second Amendment.