This week, in New York State Rifle & Pistol Association v. Bruen, the Supreme Court struck down a more-than-century-old state law that restricts the right to carry a concealed handgun in public, ruling that it violated both the Second and the Fourteenth Amendments. Meanwhile, Congress passed a bipartisan agreement on a new federal gun-safety law; the Court’s decision in Bruen seems likely to render much of that law unconstitutional. As is true of the Court’s opinion in the Dobbs case, which overturned Roe v. Wade on the grounds that a right to abortion is not “deeply rooted in this Nation’s history and tradition,” the majority argument in Bruen was strictly originalist and, in that sense, nonsense.
In Bruen, lawyers for the State of New York presented a rich, centuries-long tradition of restrictions that balance two interests: gun ownership and public safety. Clarence Thomas, writing for the majority, dismissed all of it. “The Second Amendment was adopted in 1791; the Fourteenth in 1868,” Thomas wrote. “Historical evidence that long predates either date may not illuminate the scope of the right.” That chronological rule didn’t stop him from dismissing, as well, evidence between those two dates, or after them, that supported New York’s case. For Thomas, the rule of evidence appears to be: if I agree with it, it’s evidence—if I don’t, it’s not.
Originalists are always narrowing the pool of available historical corroboration. What counts? Five sources: The Constitution, James Madison’s notes on the constitutional convention, the records of the ratifying conventions, the Federalist Papers, and Samuel Johnson’s 1755 “Dictionary of the English Language.” That’s basically it. How about a volume titled, “Laws enacted in the third sitting of the eleventh General Assembly of the Commonwealth of Pennsylvania, which commenced at Philadelphia, on the fourth day of September, in the year of our Lord, one thousand seven hundred and eighty-seven”? That is, a book of laws passed at the very time and place the constitutional convention was meeting, Philadelphia, in September 1787, a book that includes this law: “whereas it hath been usual for merchants and traders . . . to keep large quantities of gun-powder in their dwelling houses and shops, to the manifest danger of the inhabitants; Be it therefore enacted . . . that that no person or persons whatsoever . . . shall . . . keep in any house, shop, cellar, store or other place . . . any more or greater quantity than twenty five pounds weight of gun-powder, which shall be kept in the highest story of the house, at any one time; unless it be at least fifty yards from any dwelling house.” That, of course, is a gun-safety law. If the government can limit how much gunpowder you keep in your house or shop, shouldn’t it be able to limit how many guns you keep there, too, or where you carry them? “When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy,” Thomas recommended. This one seems pretty straightforward.
The court’s opinion in Bruen suggests that you can’t beat originalism by following its growing number of strictures on what counts as historical evidence. There is no method to it, nothing but inconsistency and caprice. Robert Bork, one of the early architects of originalism, itself an invention of the nineteen-seventies, strenuously argued, in 1989, that the original intention of the Second Amendment was “to guarantee the right of states to form militia, not for individuals to bear arms.” Only later did originalists come to disagree with this position. And, as Bork also made clear, originalists don’t really care about chronology. “If someone found a letter from George Washington to Martha telling her what he meant by the power to lay taxes was not what other people meant,” Bork wrote in 1990, “that would not change our reading of the Constitution in the slightest.” If Washington didn’t say it at the constitutional convention, or if he said it but Madison didn’t write it down, it doesn’t count.
Originalists have another evidentiary rule, one that seems, at first glance, like a good one. What counts as evidence, if it’s not in that set of five historical sources, has to have been written and enacted by an elected body. But the problem with this rule is that during the eras of American history that originalists say they care about—roughly, 1787 to 1791 and 1865 to 1870—the majority of people living in the United States could neither run for office nor cast a ballot. They could not elect, and they could not enact; the historical analysis employed by the Court to make decisions about the constitutionality of laws concerning everything from guns to abortion relies on a fundamentally anti-democratic historical record. It deliberately excludes, as inadmissible, all constitutional and legal thought authored by women and people of color—a form of distortion that the Yale legal scholar Reva Siegel calls “the politics of constitutional memory.” Everyone living in the United States today has to abide by decisions made by Supreme Court justices, even though most of us, if we’d been alive during the times that originalists look to, would have had no vote and no voice in what laws were passed. The most democratic jurisprudence, then, would go searching for historical evidence that can tell the court what people disenfranchised in the eighteenth and nineteenth centuries—and well into the twentieth—would have wanted, if they’d been able to influence the writing and rewriting of the Constitution.
As far as historical analysis is concerned, there’s no good reason for discounting that kind of evidence. And, as far as democracy is concerned, there’s a very good argument to be made for including in the constitutional record the voices of people who, for centuries, have been left out of it. “When it comes to interpreting the Constitution, not all history is created equal,” Clarence Thomas wrote in Bruen. True. What the disenfranchised would have wanted should matter more, not less.
Tellingly, Bork, in his hypothetical, spoke only of the absurdity of reading a letter from George to Martha Washington. He apparently couldn’t fathom that the courts might consider, as evidence, a letter to George from Martha, or from Harry Washington, a man born in Gambia and later enslaved by the Washingtons at Mount Vernon. What would gun or abortion laws look like if the courts did consider that kind of evidence? In May, 1787, Benjamin Franklin’s sister Jane wrote to him from Boston. He was about to be sequestered for the constitutional convention, and she wanted to wish him luck in advancing a “grate design for the Benifitt of mankind, and your own Nation in Perticular.” Jane Franklin Mecom, born in 1712, had lived through not only the Revolutionary War and the chaotic evacuation of Boston but also the British Army’s occupation of that city, which, in addition to the Boston Massacre, when troops fired on a crowd of townspeople, had involved a lot of soldiers raping women. She had one concern or, really, two. She was worried about guns, and she was worried about capital punishment (or halters, meaning nooses used at the gallows). She hoped that, “with the Asistance of Such a Number of wise men as you are conected with in the Convention,” he could put a stop to such violence. “I had Rather hear of the Sword being beat into Plow-Shares, and the Halters used for Cart Roops, if by that means we may be brought to live Peaceably with won a nother.”
Use evidence from 1787 to 1791. Reason by analogy. Fine. Beat your swords into plowshares. Advice sent by a woman to a delegate to the constitutional convention: Americans, lay down your arms. ♦