New York State Rifle & Pistol Association, Inc. v. Bruen, marks the next evolution in U.S. gun laws as the judiciary continues to define the limits state actors can place on law-abiding citizens. Underlying the case’s merits is the revival of a lingering struggle among Originalists. Namely, the level of generality Justices and judges should seek when trying to adjudicate whether any gun law violates the Second Amendment.
At oral argument, Justice Barrett suggested that Bruen relies on the level of generality with which the Justices consider the Second Amendment. Toying with her inquiry further, one might ask—did the Framers believe (or intend) that the Second Amendment would prohibit regulation of arms for self-defense in general? The answer is probably no, so should courts let the government dictate how arms are carried outside the home with broad discretion? Perhaps, the framing of the question should be whether objectively reasonable and educated citizens in the eighteenth century would understand the Second Amendment to guarantee the right to carry arms for self-defense outside of the home. Probably yes, given how broad this understanding is, so courts must limit how the government infringes on this right. The point here is that there are myriad ways to pose the same question and achieve one’s desired outcome. As Judge Easterbrook aptly examines, “[m]ovements in the level of constitutional generality may be used to justify almost any outcome.” Judge Bork goes even further, claiming that when judges ascend the ladder of generality, they “create[] a concept without limits, thus ensuring erratic judicial enforcement.” Not only can constitutional generality justify almost any outcome, but it can also guarantee any outcome.
While problems of constitutional generality are not unique to any one specific interpretive methodology, they have proven to be particularly tricky for theories that premise themselves on concepts like judicial restraint and constraint. Enter, Originalism. Originalism is more relevant now than ever before, and (in this author’s opinion) recent Supreme Court appointments prove this. Now, more than ever, attorneys must master Originalist arguments to advocate properly for their clients in the courtroom.
Once considered a conservative’s vehicle for propelling forward a political agenda, Originalism is now an increasingly popular method of constitutional interpretation by liberal legal minds. In fact, the Supreme Court’s newest addition, Justice Ketanji Brown Jackson, has already demonstrated how important it is for left-leaning jurists to embrace Originalist arguments. Not only is it important for liberal judges to familiarize themselves with Originalism, this knowledge is vital to bolster one’s odds at ever receiving a nomination to the nation’s highest court.
Originalism’s growing adoption and expansion began with the transition from “Old Originalism” to “New Originalism.” Or, as James Fleming describes it, “the movement from a focus on intention of the Framers to original public meaning . . . [as well as] the articulation of and emphasis on the distinction between interpretation and construction.” With this transition to original public meaning has come the opportunity to manipulate history and tradition in a way that produces desirable results, regardless of one’s political views on a subject. In this way, New Originalism has the flexibility and staying power to ensure its formidability as an interpretive method for decades to come.