{"id":2604,"date":"2022-12-07T09:00:42","date_gmt":"2022-12-07T13:00:42","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=2604"},"modified":"2025-12-22T18:53:22","modified_gmt":"2025-12-22T22:53:22","slug":"attention-originalists-the-second-amendment-was-adopted-in-1791-not-1868-mark-smith","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/attention-originalists-the-second-amendment-was-adopted-in-1791-not-1868-mark-smith\/","title":{"rendered":"Attention Originalists: The Second Amendment was adopted in 1791, not 1868 \u2013 Mark Smith"},"content":{"rendered":"\n
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Attention Originalists: The Second Amendment was adopted in 1791, not 1868<\/h2>\n\n\n\n

Mark Smith*<\/strong><\/p>\n\n\n\n

In June 2022, the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen<\/em>,[1]<\/a> its most significant case interpreting the scope of the Second Amendment since the landmark decision in District of Columbia v. Heller<\/em>.[2]<\/a> In rejecting a two-part interest balancing test, the Supreme Court instead adopted a \u201ctext, history, and tradition\u201d test to determine the Second Amendment\u2019s meaning and scope.[3]<\/a> Bruen<\/em> requires governmental defendants to prove that there are \u201chistorical analogues\u201d to modern restrictions on activity falling within the plain text of the Second Amendment by showing that the reason why those restrictions were imposed and the nature of the burden they entailed are sufficiently similar to the modern restriction in question.[4]<\/a> Bruen<\/em> approvingly quoted Heller<\/em> that \u201cConstitutional rights are enshrined with the scope they were understood to have when the people adopted them<\/em>,\u201d[5]<\/a> and noted that Heller<\/em> looked at mid-to-late nineteenth century evidence only \u201cas mere confirmation of what the Court thought had already been established.\u201d[6]<\/a><\/p>\n\n\n\n

After Bruen<\/em>, government defendants and their amici in Second Amendment lawsuits began arguing that the relevant period for determining original meaning is not 1791, when the Second Amendment became effective, but 1868, when the Fourteenth Amendment was enacted.[7]<\/a> But every Supreme Court case that has examined historical evidence to determine the meaning or scope of the first eight provisions of the Bill of Rights has looked entirely or principally at the Founding period or earlier, not 1868.[8]<\/a><\/p>\n\n\n\n

Here is the Bruen<\/em> passage on which gun control defenders base their argument. After reviewing the historical methodology for courts to deploy, the Court observed:<\/p>\n\n\n\n

Strictly speaking, New York is bound to respect the right to keep and bear arms because of the Fourteenth Amendment, not the Second. See, e.g.<\/em>, Barron ex rel. Tiernan v. Mayor of Baltimore<\/em>, 7 Pet. 243, 250\u2013251 (1833) (Bill of Rights applies only to the Federal Government). Nonetheless, we have made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government. [citations omitted] And we have generally assumed <\/em>that the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.<\/em> See, e.g<\/em>., Crawford v. Washington<\/em>, 541 U.S. 36, 42\u201350 (2004) (Sixth Amendment); Virginia v. Moore<\/em>, 553 U.S. 164, 168\u2013169 (2008) (Fourth Amendment); Nevada Comm\u2019n on Ethics v. Carrigan<\/em>, 564 U.S. 117, 122\u2013125 (2011) (First Amendment).<\/p>\n\n\n\n

We also acknowledge<\/em> that there is an ongoing scholarly<\/em> debate<\/em> on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government). See, e.g.<\/em>, A. Amar, The Bill of Rights: Creation and Reconstruction xiv, 223, 243 (1998); K. Lash, Re-Speaking the Bill of Rights: A New Doctrine of Incorporation (Jan. 15, 2021) (manuscript, at 2), https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=3766917 (\u201cWhen the people adopted the Fourteenth Amendment into existence, they readopted the original Bill of Rights, and did so in a manner that invested those original 1791 texts with new 1868 meanings\u201d).[9]<\/a><\/p>\n\n\n\n

This language has led gun control advocates to argue that the relevant time period is an open question and that the answer is 1868, not 1791. Undoubtedly, that is because there were more gun control laws on the books (think: Southern Black Codes) in 1868 than in 1791, and thus more opportunities to find historical \u201canalogues\u201d to restrict individual rights. For example, at the Founding period, there were no restrictions on the peaceable carrying of arms, other than by slaves, free blacks in certain jurisdictions, and Native Americans.[10]<\/a> \u201cThere have been epochs or phases in the latter part of the nineteenth and early part of the twentieth centuries in which the right to bear arms was impaired or denied to selected groups of people.\u201d[11]<\/a> During Reconstruction and thereafter, a minority of states (mostly Southern) enacted bans on the carrying of small pistols, required pistols to be carried openly and, in the case of Texas, prohibited carrying pistols at all, other than on a journey. Some carry bans were invalidated by the courts.[12]<\/a><\/p>\n\n\n\n

Apart from the Black Codes and Jim Crow laws, Bruen<\/em> itself noted that there was a \u201cslight uptick in gun regulation during the late-19th century\u2014principally in the Western Territories.\u201d[13]<\/a> The Court continued on to discount this gun regulation evidence because \u201cAs we suggested in Heller<\/em>, however, late-19th<\/sup> century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.\u201d[14]<\/a><\/p>\n\n\n\n

But the relevant time period is not an open question. That the Founding period is the correct time to determine the original public meaning of an individual right is not a mere \u201cassumption,\u201d as Justice Thomas stated in his respectful nod to an \u201congoing scholarly debate.\u201d It is an integral and controlling part of the Court\u2019s Bill of Rights jurisprudence. As shown herein, it has been the Court\u2019s universal practice to look to the Founding period and relevant antecedents to determine original public understanding. No Supreme Court case has ever looked to 1868 as the principal period for determining the meaning of an individual right in the Bill of Rights. If periods after 1791 are consulted at all, it is only to confirm that subsequent authorities remained consistent with the public understanding in 1791.<\/p>\n\n\n\n

The Court has held that the meanings of the Constitution and the Bill of Rights are fixed when they were adopted. A provision of the Bill of Rights has only one meaning, whether applied against the federal government or the states. The time period for determining that single meaning, when history must be examined, is 1791. That is true of the three cases cited by Bruen<\/em> in the quote above; it is true of all of the Supreme Court\u2019s Second Amendment cases beginning with Heller<\/em>; and it is true of Supreme Court cases examining other rights provisions of the Bill of Rights. The Court has also declared that if a later interpretation differs from the original meaning when the Bill of Rights was ratified, the later interpretation must yield.<\/p>\n\n\n\n

Even if one examines the ratification period of the Fourteenth Amendment, there is no evidence that the ratifiers thought the existing rights in the Bill of Rights somehow changed in meaning. Rather, the Fourteenth Amendment\u2019s purpose was to include blacks within the protections granted to citizens, and to protect their rights against state encroachments.<\/p>\n\n\n\n

I.               1791 Is the Proper Year for Determining the Original Understanding of the Second Amendment<\/h2>\n\n\n\n

A.    The meaning and scope of each provision in the Bill of Rights is the same whether applied against the states or the federal government<\/h3>\n\n\n\n

The key to understanding why the original public meaning of the Bill of Rights\u2014including the Second Amendment\u2014should be determined by reference to the Founding is found in Bruen<\/em> itself: \u201c[W]e have made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope<\/em> as against the Federal Government.\u201d[15]<\/a> The Court does not apply one meaning when invoked against potential federal infringement and a different meaning when invoked against a potential state or locality infringement.<\/p>\n\n\n\n

This has been a fundamental principle of Bill of Rights jurisprudence for over five decades. That an incorporated right has only a single meaning was made crystal clear in McDonald<\/em>, which quoted Malloy v. Hogan<\/em> as establishing that the Court has:<\/p>\n\n\n\n

abandoned \u201cthe notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,\u201d stating that it would be \u201cincongruous\u201d to apply different standards \u201cdepending on whether the claim was asserted in a state or federal court.\u201d[16]<\/a><\/p>\n\n\n\n

B.     A constitutional provision\u2019s meaning is fixed when adopted<\/h3>\n\n\n\n

Bruen<\/em> explained that the Constitution\u2019s \u201cmeaning is fixed according to the understandings of those who ratified it.\u201d[17]<\/a> Since the Bill of Rights is part of the Constitution and was ratified just three years after the unamended Constitution went into effect, its meaning was fixed then. Noting that the \u201cConstitution can, and must, apply to circumstances<\/em> beyond those the Founders <\/em>specifically anticipated,\u201d[18]<\/a> Bruen <\/em>quoted from United States v. Jones<\/em>,[19]<\/a> which concluded that installation of a tracking device on a vehicle was \u201ca physical intrusion [that] would have been considered a \u2018search\u2019 within the meaning of the Fourth Amendment when it was adopted<\/em>\u201d.[20]<\/a> Circumstances may change, but the central meaning is fixed.<\/p>\n\n\n\n

The conception that the Constitution has a fixed, original meaning goes far back in constitutional jurisprudence. As Justice Thomas noted in his concurrence in McIntyre v. Ohio Elections Comm\u2019n<\/em>:[21]<\/a><\/p>\n\n\n\n

When interpreting the Free Speech and Press Clauses, we must be guided by their original meaning, for \u201c[t]he Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now.<\/em>\u201d South Carolina v. United States<\/em>, 199 U.S. 437, 448 (1905). We have long recognized that the meaning of the Constitution \u201cmust necessarily depend on the words of the constitution [and] the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions<\/em> . . . in the several states.\u201d Rhode Island v. Massachusetts,<\/em> 37 U.S. (12 Pet.) 657, 721 (1838).<\/p>\n\n\n\n

Thus, as long ago as 1838, that was an accepted proposition. It remained an accepted proposition in 1905 and remains so today.<\/p>\n\n\n\n

C.    The Bill of Rights means what it meant when it was adopted<\/h3>\n\n\n\n

The relevant period for ascertaining the single<\/em> meaning of a provision of the Bill of Rights is the ratification of those amendments during the Founding, not when the right was incorporated into the Fourteenth Amendment. Bruen<\/em> recognized that the \u201cSecond Amendment\u2019s historically fixed meaning<\/em>\u201d must date, like the Amendment itself, to 1791, when the Court reaffirmed Heller<\/em>\u2019s finding that the right applies to new circumstances, specifically that the Second Amendment\u2019s \u201creference to \u2018arms\u2019 does not apply \u2018only [to] those arms in existence in the 18th century.<\/em>\u2019\u201d[22]<\/a><\/p>\n\n\n\n

In the passage from Bruen<\/em> quoted above regarding the \u201cassumption\u201d that 1791 is the relevant time period, the Court cited three cases, all of which looked to the time of ratification of specific amendments in 1791 to determine their original public meaning: Crawford v. Washington<\/em>, 541 U.S. 36 (2004) (Sixth Amendment); Virginia v. Moore<\/em>, 553 U.S. 164 (2008) (Fourth Amendment); and Nevada Comm\u2019n on Ethics v. Carrigan<\/em>, 564 U.S. 117 (2011) (First Amendment). These cases all involve applications against the states of incorporated provisions of the Bill of Rights.<\/p>\n\n\n\n

In Crawford<\/em>, a Confrontation Clause case, the Court relied on Founding-era history \u201cto understand [the clause\u2019s] meaning.\u201d[23]<\/a> There is no indication in Crawford<\/em> that when the Sixth Amendment applies through the Fourteenth Amendment to a state, the public understanding of the Sixth Amendment at the time of ratification of the Fourteenth Amendment determines its meaning, or changes the 1791 meaning.<\/p>\n\n\n\n

The second case is Virginia v. Moore,<\/em>[24]<\/a> a Fourth Amendment case, where the protection of that Amendment was asserted against a state\u2019s actions. The Court again looked to the Founding era: \u201cIn determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era<\/em> to determine the norms that the Fourth Amendment was meant to preserve.\u201d[25]<\/a><\/p>\n\n\n\n

The Court stated that it was \u201caware of no historical indication that those who ratified the Fourth Amendment<\/em> understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted.\u201d[26]<\/a> As with Crawford<\/em>, there was no indication in Virginia v. Moore <\/em>that the understanding of the ratifiers of the Fourteenth Amendment was relevant or should even be considered.<\/p>\n\n\n\n

In the third case, Nevada Comm\u2019n on Ethics v. Carrigan<\/em>,[27]<\/a> the issue was whether a provision of the state\u2019s law requiring legislators to recuse themselves from voting on certain measures violated the First Amendment. The Court held that it did not, partially on the basis that such recusal laws existed during the Founding and were not considered to be speech restraints.<\/p>\n\n\n\n

As in Crawford<\/em> and Moore<\/em>, the Court never considered whether the scope of the First Amendment should be determined by the understanding of the ratifiers of the Fourteenth Amendment. Instead, it noted that \u201cLaws punishing libel and obscenity are not thought to violate \u2018the freedom of speech\u2019 to which the First Amendment refers because such laws existed in 1791<\/em> and have been in place ever since.\u201d[28]<\/a><\/p>\n\n\n\n

When Supreme Court cases look at history to determine the intent of ratifiers, they always look to the Founding era as the period of sole or primary relevance.<\/p>\n\n\n\n

D.    All three of the Supreme Court\u2019s substantive interpretations of the Second Amendment assess its meaning and scope by looking at the Founding period<\/h3>\n\n\n\n

There have been two Supreme Court cases\u2014Heller<\/em> and Bruen<\/em>\u2014that engaged in historical analysis and applied the substantive meaning of the Second Amendment; both used the Founding period to determine its scope and meaning.<\/p>\n\n\n\n

Heller<\/em> first analyzed the meaning of the Second Amendment\u2019s text by examining sources that either preceded 1791 or were close enough in time thereafter to ascertain what the language meant to the Founding generation.[29]<\/a><\/p>\n\n\n\n

For example, the Court stated that in interpreting the Second Amendment\u2019s text:<\/p>\n\n\n\n

[W]e are guided by the principle that \u2018[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.\u2019 Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation<\/em>.[30]<\/a><\/p>\n\n\n\n

Heller<\/em> left no doubt that the meaning of the provisions of the Bill of Rights was set in 1791: \u201cConstitutional rights are enshrined with the scope they were understood to have when the people adopted them<\/em>, whether or not future legislatures or (yes) even future judges think that scope too broad.\u201d[31]<\/a><\/p>\n\n\n\n

Caetano<\/em> applied the Second Amendment against Massachusetts.[32]<\/a> Although this per curiam <\/em>opinion did not itself engage in historical analysis, it expressly relied on Heller<\/em>\u2019s language and reasoning, which were rooted in the Founding period. There was no suggestion by the Court that 1868 was the proper date, or that the understanding of the ratifiers of the Fourteenth Amendment was even pertinent, much less controlling.<\/p>\n\n\n\n

Bruen<\/em> confirmed that the period when the Bill of Rights was ratified is the pertinent period. Addressing New York\u2019s historical arguments from medieval times to the end of the nineteenth century, the Court observed that \u201cnot all history is created equal\u201d and then reaffirmed Heller<\/em>\u2019s statement that \u201cConstitutional rights are enshrined with the scope they were understood to have when the people adopted them.\u201d[33]<\/a><\/p>\n\n\n\n

E.     Supreme Court jurisprudence on all other provisions of the Bill of Rights looks to the Founding period, not 1868<\/h3>\n\n\n\n

As Bruen<\/em> explained, the meaning of a constitutional provision is fixed when adopted. That includes the provisions of the Bill of Rights, which have the same meaning when incorporated against the states or the federal government.<\/p>\n\n\n\n

I have not found, and litigants in post-Bruen <\/em>litigation have so far not identified, a single <\/em>Supreme Court case in which the Court looked to the time of the Fourteenth Amendment\u2019s ratification as the principal period for determining the scope or meaning of any provision of the Bill of Rights. [34]<\/a> A multitude of cases, beyond those cited above, discuss the Founding period and earlier as exclusively or primarily relevant.[35]<\/a><\/p>\n\n\n\n

F.     If later understandings contradict the original understanding of the text, the original understanding controls<\/h3>\n\n\n\n

It\u2019s true that Heller<\/em>, McDonald<\/em>, and Bruen<\/em> all considered some amount of 19th<\/sup>-century history. McDonald<\/em> did so not to discern the meaning or scope of the right to keep and bear arms, but rather to determine whether it has historically been considered \u201cfundamental to our scheme of ordered liberty\u201d and \u201cdeeply rooted in this Nation\u2019s history and tradition.\u201d[36]<\/a><\/p>\n\n\n\n

The post-Founding-era history examined by Heller<\/em> and Bruen<\/em> was used by the Court only to confirm, rather than to define or contradict, the Founding-era understanding. Regarding Heller<\/em>, the Bruen<\/em> Court observed:<\/p>\n\n\n\n

[W]e made clear in Gamble<\/em> that Heller<\/em>\u2019s interest in mid- to late-19th-century commentary was secondary. Heller<\/em> considered this evidence \u201conly after surveying what it regarded as a wealth of authority for its reading\u2014including the text of the Second Amendment and state constitutions.\u201d In other words, this 19th-century evidence was \u201ctreated as mere confirmation of what the Court thought had already been established.\u201d[37]<\/a><\/p>\n\n\n\n

The Court warned against giving \u201cpost-enactment history more weight than it can rightly bear,\u201d and reaffirmed Heller<\/em>\u2019s observation that \u201cbecause post-Civil War discussions of the right to keep and bear arms \u2018took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources.\u2019\u201d[38]<\/a> In fact, faced with twentieth-century evidence that did <\/em>contradict the Founding-era evidence, the Bruen <\/em>Court rejected that evidence, stating that the Court will not \u201caddress any of the 20th-century historical evidence brought to bear by respondents or their amici<\/em>. As with their late-19th-century evidence, the 20th-century evidence presented by respondents and their amici<\/em> does not provide insight into the meaning of the Second Amendment when it contradicts earlier evidence.\u201d[39]<\/a><\/p>\n\n\n\n

Justice Barrett, concurring in Bruen<\/em>, also cautioned that \u201ctoday\u2019s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights.\u201d[40]<\/a> If there are no analogues at the Founding, one cannot simply jump to the late 19th century to look for them. Justice Barrett pointedly quoted from Espinoza v. Montana Dept. of Revenue<\/em>,[41]<\/a> which stated that a practice that \u201carose in the second half of the 19th century . . . cannot by itself establish an early American tradition\u201d informing our understanding of the First Amendment.[42]<\/a> If such a practice cannot establish a pertinent American tradition for the First Amendment, it cannot do so for the Second Amendment, either.<\/p>\n\n\n\n

G.    The Court of Appeals\u2019 decisions cited to support 1868 as the determinative year have been abrogated or rely on an obvious misreading of McDonald<\/em><\/h3>\n\n\n\n

The briefs supporting gun control in the Worth<\/em>, Lara<\/em>, and Antonyuk<\/em> cases[43]<\/a> rely on lower court cases that supposedly establish the time of the ratification of the Fourteenth Amendment as the key time period. Of the three submissions, the Lara<\/em> brief has the most extensive argument on the point. The discussion in the Lara<\/em> brief[44]<\/a> cites Gould v. Morgan<\/em>, noting that it was \u201ccriticized on other grounds by Bruen<\/em>\u201d;[45]<\/a> Ezell v. City of Chicago<\/em>, which stated that \u201cMcDonald <\/em>confirms that if the claim concerns a state or local law, the \u2018scope\u2019 question asks how the right was publicly understood when the Fourteenth Amendment was proposed and ratified\u201d;[46]<\/a> United States v. Greeno<\/em>;[47]<\/a> and closes with a \u201csee also\u201d to Drummond v. Robinson Twp.<\/em>;[48]<\/a> and to Binderup v. Att\u2019y Gen.<\/em>[49]<\/a><\/p>\n\n\n\n

But Gould<\/em> was abrogated by Bruen<\/em>. The Seventh Circuit in Ezell<\/em> cites \u201cMcDonald<\/em>, 130 S.Ct. at 3038\u201347\u201d in support of the quoted sentence.[50]<\/a> But there is no such holding in those pages of McDonald<\/em>, and Bruen<\/em> certainly did not read McDonald<\/em> that way. The Seventh Circuit corrected itself shortly after Ezell<\/em>, observing that \u201c1791, the year the Second Amendment was ratified\u2014[is] the critical year for determining the amendment\u2019s historical meaning, according to McDonald v. City of Chicago<\/em>.\u201d[51]<\/a> Greeno<\/em> quoted the mistaken language in Ezell<\/em>,[52]<\/a> as did Binderup.<\/em>[53]<\/a> The Drummond <\/em>case did not hold that 1868 is the proper date.<\/p>\n\n\n\n

II.             The Individual right to Bear Arms in the Second Amendment was Understood the Same Way in 1868 as in 1791<\/h2>\n\n\n\n

The debate about whether 1791 or 1868 is the critical year is significant only if there were important differences in the understandings of the ratifiers between those two time periods. But in the discourse that led to the Fourteenth Amendment, the right to keep and bear arms was represented as its text dictates, consistent with the same meaning as at the Founding.<\/p>\n\n\n\n

Second Amendment concerns were prominent in debates over the Freedmen\u2019s Bureau Act and the Civil Rights Act of 1866. Rep. Thomas Eliot, who sponsored the Freedman\u2019s Bureau Act, noted that in Kentucky \u201c[t]he civil law prohibits the colored man from bearing arms.\u201d[54]<\/a> He also stated that the Act would invalidate a law providing that no freedman \u201cshall be allowed to carry fire-arms\u201d without employer permission and  police approval.[55]<\/a> As enacted, the Freedmen\u2019s Bureau bill guaranteed the right \u201cto have full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right to bear arms.\u201d[56]<\/sup><\/a><\/p>\n\n\n\n

Another senator, Garret Davis, said that the Founders \u201cwere for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.\u201d[57]<\/sup><\/a> Senator Samuel Pomeroy counted among the \u201csafeguards of liberty\u201d \u201cthe right to bear arms for the defense of himself and family and his homestead.\u201d[58]<\/sup><\/a> The amendment was needed, Rep. George W. Julian argued, because Southern courts declared the Civil Rights Act void and some states made it \u201ca misdemeanor for colored men to carry weapons without a license.\u201d[59]<\/sup><\/a><\/p>\n\n\n\n

Indeed, the Freedmen\u2019s Bureau Act explicitly declared:<\/p>\n\n\n\n

[T]he right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms<\/em>, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery.[60]<\/sup><\/a><\/p>\n\n\n\n

Just as the ratifiers of the Second Amendment sought to guarantee a pre-existing right, the ratifiers of the Fourteenth Amendment sought only to extend <\/em>that protection, not change the right.<\/p>\n\n\n\n

III.           The \u201cScholarly Debate\u201d Referenced in Bruen <\/em>Does Not Change the Supreme Court\u2019s Settled Incorporation Jurisprudence<\/h2>\n\n\n\n

Bruen<\/em> noted that \u201cthere is an ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government).\u201d[61]<\/a> But the only two sources cited for the existence of this debate were Kurt Lash, Respeaking the Bill of Rights: A New Doctrine of Incorporation<\/em>, 97 Ind. L.J. 1439 (2022) and Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction xiv, 223, 243 (1998). Both of their positions are flawed.<\/p>\n\n\n\n

A. Professor Lash\u2019s approach is theoretically unsound and unlikely to be adopted<\/h3>\n\n\n\n

Professor Lash believes that if a provision of the Bill of Rights meant something different to the ratifiers of the Fourteenth Amendment than it did to the ratifiers of the Bill of Rights, the 1868 meaning must control.<\/p>\n\n\n\n

Noting that the Supreme Court has definitively and repeatedly held that the rights must mean the same thing against the federal government and the states, Lash inquires: If the meanings must be the same, \u201care the original 1791 meanings carried forward<\/em> into the 1868 amendment, or are the understandings of the people of 1868 carried backward<\/em> into the original Bill of Rights and applied against the federal government by way of \u2018reverse incorporation\u2019?\u201d[62]<\/a><\/p>\n\n\n\n

Lash\u2019s theoretical answer to his own question is that rights as understood in 1868 must be \u201creverse incorporated\u201d into the Bill of Rights. He states that there is only \u201cone Freedom of Speech Clause\u2014the one the people spoke into existence in 1791 but then respoke<\/em> in 1868.\u201d[63]<\/a> He argues that \u201c[w]hen the people adopted the Fourteenth Amendment, they readopted the original Bill of Rights, and did so in a manner that invested those original 1791 texts with new 1868 meanings.\u201d[64]<\/a><\/p>\n\n\n\n

There are several problems with this approach.<\/p>\n\n\n\n

Lash\u2019s analysis is completely contrary to Supreme Court precedents. As noted above, constitutional meanings are fixed when they are ratified. When consulting history to determine the meaning of incorporated provisions of the Bill of Rights, every Supreme Court case has considered the Founding era to be dispositive, even though later evidence is sometimes examined for confirmation.<\/p>\n\n\n\n

There also is no compelling basis for concluding that the 1868 meaning, if different, ought to prevail. That 1868 is later in time does not preclude using the original meaning of the Bill of Rights, and simply applying those original meanings to additional persons and entities\u2014that is, in favor of blacks, and against the states\u2014especially since that is what the debates in 1868, to the extent they mentioned the first eight amendments, seemed to contemplate.<\/p>\n\n\n\n

Next, it is untrue that the ratifiers \u201cspoke into existence\u201d Bill of Rights provisions in 1791, but then \u201crespoke\u201d them in 1868. The Bill of Rights was a confirmation of existing rights, not an original grant of rights. The drafters of the Fourteenth Amendment extended those protections to people who had previously been denied them and guaranteed them against governments that had previously not been limited by them.<\/p>\n\n\n\n

One suspects that the Supreme Court will not want to have the entirety of its Bill of Rights jurisprudence \u201ctransformed\u201d retroactively based upon an unjustified and unprecedented reliance on 1868 as the focus for determining the meaning and scope of the Bill of Rights.<\/p>\n\n\n\n

B.     Professor Amar\u2019s approach contains similar flaws and his concerns have likely been superseded by Heller<\/em><\/h3>\n\n\n\n

Turning to Professor Amar\u2019s book,[65]<\/a> his emphasis on 1866 (not 1868)[66]<\/a> is more subtle and less drastic than that proposed by Lash. He commends Justice Black\u2019s view \u201cthat all<\/em> of the privileges and immunities of citizens recognized in the Bill of Rights\u201d are incorporated through the Fourteenth Amendment.[67]<\/a> But he does not recognize all of the provisions of the Bill of Rights as \u201cprivileges or immunities of citizens,\u201d stating that some are more akin to rights of states, and others are \u201calloyed provisions,\u201d part citizen right and part state right, that may have to undergo \u201crefinement and filtration\u201d before their citizen-right elements can be \u201cabsorbed\u201d by the Fourteenth Amendment.[68]<\/a> Amar\u2019s \u201crefined incorporation\u201d diverges in critical respects from the Court\u2019s current test, as stated in McDonald<\/em>: whether the right \u201cis fundamental to our scheme of ordered liberty, or as we have said in a related context, whether this right is \u2018deeply rooted in this Nation’s history and tradition.\u2019\u201d[69]<\/a><\/p>\n\n\n\n

Next, even though the right to keep and bear arms was a paradigmatic \u201cprivilege\u201d of \u201ccitizens of the United States,\u201d the \u201cright in 1789 and the right in 1868 meant different things,\u201d according to Amar.[70]<\/a> But it is unclear, at best, whether Amar\u2019s distinction between 1868\u2019s relabeling the right as a privilege or immunity of citizens, and 1791\u2019s the \u201cright of the people\u201d in connection with the militia, has any continuing relevance in Second Amendment interpretation. At the time of Amar\u2019s book, the Second Amendment had not been incorporated, and was generally held by lower courts to relate only to militia service. The Court\u2019s opinion in Heller<\/em> carefully recognized the role of the citizen militia in the colonies and early Republic, but it accurately determined that the right was an individual right for self-defense as well, the position for which Amar seems to be contending. Thus, Heller <\/em>may have largely dispelled Amar\u2019s concerns about the nature of the right. Critically, however, these findings in Heller<\/em> did not depend in any way on the understandings of the ratifiers in 1868, but looked to that general time period only as confirmation of the nature of the right as both militia-related and individual, just as it considered some antebellum interpretations as confirmation.<\/p>\n\n\n\n

Conclusion<\/h2>\n\n\n\n

The attempt to make the Fourteenth Amendment\u2019s ratification period the determinative time for ascertaining the Second Amendment\u2019s meaning has no basis in law or logic. The Supreme Court has held that provisions of the Bill of Rights have only a single meaning, whether applied against the federal government or the states. That meaning is fixed at the time of adoption: that is, in 1791.<\/p>\n\n\n\n

All Supreme Court cases that have engaged in historical review of incorporated provisions have looked to 1791 as the determinative period. The Supreme Court has never looked to 1868 for anything more than confirmation of 1791 meaning. Neither litigants nor the scholars mentioned in the Bruen<\/em> Court\u2019s reference to the \u201congoing scholarly debate\u201d have pointed to a single Supreme Court case that found the meaning of a provision of the Bill of Rights based primarily on the 1868 understanding to the exclusion of or in contradiction of the 1791 understanding.<\/p>\n\n\n\n

In short, it can be said with confidence that the Supreme Court has not adopted and will not adopt 1868 as the primary or determinative period for construing the meaning of the Second Amendment or any other provisions of the Bill of Rights. Therefore, lower courts should confine themselves to looking to the Founding Era, not the Reconstruction Era, to define the meaning and scope of the Second Amendment.<\/p>\n\n\n\n

<\/a>* Mark W. Smith is a Visiting Fellow in Pharmaceutical Public Policy and Law in the Department of Pharmacology, University of Oxford; Presidential Scholar and Senior Fellow in Law and Public Policy, The King\u2019s College; Distinguished Scholar and Senior Fellow of Law and Public Policy, Ave Maria School of Law. He also hosts the Four Boxes Diner YouTube Channel, which addresses Second Amendment scholarship, history, and issues. See<\/em> https:\/\/www.youtube.com\/channel\/UCryaem-nXjC27Yci0xTNfhQ. He is the author of multiple books including First They Came for the Gun Owners: The Campaign to Disarm You and Take Your Freedoms<\/em> (Bombardier Books 2019) and #Duped: How the Anti-gun Lobby Exploits the Parkland School Shooting\u2014and How Gun Owners Can Fight Back<\/em> (Post Hill Press 2018). This article is excerpted and adapted from a more detailed one, which can be found on SSRN. It is titled ‘Not All History Is Created Equal’: In the Post-<\/em>Bruen World, the Critical Period for Historical Analogues Is when the Second Amendment Was Ratified in 1791, and not 1868<\/em>, <\/em>and can be found on SSRN here: https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=4248297.<\/p>\n\n\n\n

[1] 142 S. Ct. 2111 (2022).<\/p>\n\n\n\n

[2]<\/a> 554 U.S. 570 (2008).<\/p>\n\n\n\n

[3]<\/a> Bruen<\/em> held that \u201cwhen the Second Amendment\u2019s plain text covers an individual\u2019s conduct, the Constitution presumptively protects that conduct . . . .\u201d To justify a restriction on such conduct, the government has the burden to \u201cdemonstrate that the regulation is consistent with this Nation\u2019s historical tradition of firearm regulation.\u201d Bruen<\/em>, 142 S. Ct. at 1126. Contrary to what some courts have held, the \u201cplain text\u201d means the textual right determined in accordance with accepted principles of constitutional interpretation and Supreme Court precedent. For example, in a case challenging a law involving a ban on \u201cself-manufacture of firearms\u201d and a prohibition on \u201cthe sale of the tools and parts necessary to complete the self-manufacturing process,\u201d a court held that history need not be consulted because \u201c[t]ry as you might, you will not find a discussion of those concerns (or any such \u2018right(s)\u2019) in the \u2018plain text\u2019 of the Second Amendment.\u201d Defense Distributed v. Bonta<\/em>, Case No. 2:22-cv-06200, Doc. 19 at 7 (C.D. Cal. Oct. 21, 2022). But Heller <\/em>held that the right to \u201ckeep\u201d arms refers to \u201cpossessing arms.\u201d Heller<\/em>, 554 U.S. at 583. The right to possess arms necessarily includes the right to acquire them (through purchase, self-manufacture, gift, inheritance, or otherwise) because no one is born with firearms in hand. The unreasonably literal interpretation adopted by the Defense Distributed<\/em> case would require nearly every issue that could arise under the Second Amendment to be discussed and decided in the text of the Amendment itself. That, of course, would obviate the need for any historical inquiry.<\/p>\n\n\n\n

[4]<\/a> 142 S. Ct. 2111, 2130\u201333 (2022).<\/p>\n\n\n\n

[5]<\/a> Bruen<\/em>, 142 S. Ct. at 2136 (emphasis added).<\/p>\n\n\n\n

[6]<\/a> Id<\/em>. at 2137.<\/p>\n\n\n\n

[7]<\/a> See, e.g.<\/em>, Defendant John Harrington\u2019s Memorandum in Support of His Motion for Summary Judgement at 24, Worth v. Harrington (D. Minn. 2022) (No. 0:21-CV-01348); Amicus Letter of Everytown Law at 2, Lara v. Comm\u2019r Pa. State Police (3d Cir. 2022) (No. 21-1832); [Proposed] Amicus Br. of Everytown for Gun Safety in Support of Defendant\u2019s Opposition to Plaintiff\u2019s Motion for a Preliminary Injunction at 7, Antonyuk v. Bruen (N.D.N.Y. 2022) (No. 1:22-cv-00734).<\/p>\n\n\n\n

[8]<\/a> See<\/em> infra<\/em> Parts C, D, and E.<\/p>\n\n\n\n

[9]<\/a> Bruen<\/em>, 142 S. Ct. at 2137\u201338 (emphasis added). Professor Lash\u2019s SSRN article was published as Respeaking the Bill of Rights: A New Doctrine of Incorporation<\/em>, 97 Ind. L.J. 1439 (2022).<\/p>\n\n\n\n

[10]<\/a> See<\/em> Stephen P. Halbrook, The Founders\u2019 Second Amendment chapters 6\u20137 (2008) (analyzing the constitutions and laws of the original states).<\/p>\n\n\n\n

[11]<\/a> Stephen P. Halbrook, The Right to Bear Arms 255 (2021) (analyzing restrictions in the \u201cWild West,\u201d Jim Crow South, and anti-immigrant cities like New York).<\/p>\n\n\n\n

[12]<\/a> Stephen P. Halbrook, The Right to Bear Arms 241\u201347 (2021).<\/p>\n\n\n\n

[13]<\/a> Bruen<\/em>, 142 S. Ct. at 2153\u201354.<\/p>\n\n\n\n

[14]<\/a>  Id.<\/em> at 2154.<\/p>\n\n\n\n

[15]<\/a> Bruen<\/em>, 142 S. Ct. at 2137 (emphasis added).<\/p>\n\n\n\n

[16]<\/a> McDonald v. City of Chicago, 561 U.S. 742, 765 (2010) (quoting Malloy v. Hogan, 378 U.S. 1, 5\u20136 (1964)).<\/p>\n\n\n\n

[17]<\/a> Bruen,<\/em>142 S. Ct. at 2132.<\/p>\n\n\n\n

[18]<\/a> Id.<\/em><\/p>\n\n\n\n

[19]<\/a> 565 U.S. 400, 404\u2013405 (2012).<\/p>\n\n\n\n

[20]<\/a> Id.<\/em> (emphasis added).<\/p>\n\n\n\n

[21]<\/a> 514 U.S. 334, 359 (1995).<\/p>\n\n\n\n

[22]<\/a> Bruen<\/em>, 142 S. Ct. at 2132 (quoting District of Columbia v. Heller, 554 U.S. 570, 582 (2008)) (emphasis added).<\/p>\n\n\n\n

[23]<\/a> Crawford v. Washington, 541 U.S. 36, 43 (2004).<\/p>\n\n\n\n

[24]<\/a> 553 U.S. 164 (2008).<\/p>\n\n\n\n

[25]<\/a> Id.<\/em> at 168 (emphasis added).<\/p>\n\n\n\n

[26]<\/a> Id.<\/em> (emphasis added).<\/p>\n\n\n\n

[27]<\/a> 564 U.S. 117 (2011).<\/p>\n\n\n\n

[28]<\/a> Id.<\/em> at 122 (emphasis added).<\/p>\n\n\n\n

[29]<\/a> District of Columbia v. Heller, 554 U.S. 570, 577\u2013592 (2008).<\/p>\n\n\n\n

[30]<\/a> Id. <\/em>at 576\u201377 (citations omitted) (emphasis added).<\/p>\n\n\n\n

[31]<\/a> See id.<\/em> at 634\u201335 (emphasis added).<\/p>\n\n\n\n

[32]<\/a> Caetano v. Massachusetts, 577 U.S. 411 (2016).<\/p>\n\n\n\n

[33]<\/a> N.Y. State Rifle & Pistol Ass\u2019n, Inc. v. Bruen, 142 S. Ct. 2111, 2136 (2022).<\/p>\n\n\n\n

[34]<\/a> Litigants have cited lower court decisions, and I discuss the errors in those arguments in Part I.G.<\/p>\n\n\n\n

[35]<\/a> See, e.g.<\/em>, Near v. Minnesota, <\/em>283 U.S. 697, 713\u201317 (1931) (First Amendment, freedom of the press); Reynolds v. United States, 98 U.S. 145, 163 (1878) (First Amendment, Free Exercise Clause); Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 565 U.S. 171, 182\u201384 (2012) (First Amendment, Establishment Clause and Free Exercise Clause); Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1894\u2013912 (2021) (First Amendment, Free Exercise Clause) (lengthy concurrence by Justices Alito, Thomas, and Gorsuch); Lynch v. Donnelly, 465 U.S. 668, 673\u201374 (1984) (First Amendment, Establishment Clause); Wyoming v. Houghton, 526 U.S. 295, 299 (1999) (Fourth Amendment); Wilson v. Arkansas, 514 U.S. 927, 931 (1995) (Fourth Amendment); Benton v. Maryland, 395 U.S. 784, 795\u201396 (1969) (Fifth Amendment, Double Jeopardy Clause); Gamble v. United States, 139 S. Ct. 1960, 1965 (2019) (Fifth Amendment, Double Jeopardy Clause); Ramos v. Louisiana, 140 S. Ct. 1390, 1395\u201396 (2020) (Sixth Amendment, Jury Trial Clause); Powell v. Alabama,<\/em> 287 U.S. 45, 60\u201367 (1932) (Sixth Amendment, Right to Counsel Clause); Klopfer v. North Carolina, 386 U.S. 213, 223\u201325 (1967) (Sixth Amendment, right to speedy trial); In re<\/em> Oliver, 333 U.S. 257, 266\u2013268 (1948) (Sixth Amendment, right to public trial); Duncan v. Louisiana, 391 U.S. 145, 151\u201354 (1968) (Sixth Amendment, right to jury trial in state cases); Washington v. Texas, 388 U.S. 14, 20, 23 (1967) (Sixth Amendment, Compulsory Process Clause); Timbs v. Indiana, 139 S. Ct. 682, 687\u201399 (2019) (Eighth Amendment, Excessive Fines Clause) (post-Civil War history discussed only to show the right\u2019s fundamental importance).<\/p>\n\n\n\n

[36]<\/a> McDonald v. City of Chicago, 561 U.S. 742, 767 (2010).<\/p>\n\n\n\n

[37]<\/a> Bruen<\/em>, 142 S. Ct. at 2137 (quoting Gamble v. United States,<\/em> 139 S. Ct. 1960, 1975\u201376 (2019)).<\/p>\n\n\n\n

[38]<\/a> Id.<\/em> at 2136\u201337 (quoting District of Columbia v. Heller, 554 U.S. 570, 614 (2008)).<\/p>\n\n\n\n

[39]<\/a> Id.<\/em> at 2154 n.28.<\/p>\n\n\n\n

[40]<\/a> Id.<\/em> at 2163 (Barrett, J., concurring).<\/p>\n\n\n\n

[41]<\/a> 140 S. Ct. 2246, 2258\u20132259 (2020).<\/p>\n\n\n\n

[42]<\/a> Bruen<\/em>, 142 S. Ct. at 2163 (Barrett, J., concurring).<\/p>\n\n\n\n

[43]<\/a> See supra<\/em> note 7.<\/p>\n\n\n\n

[44]<\/a> Amicus Letter of Everytown Law at 2, Lara v. Comm\u2019r Pa. State Police (3d Cir. 2022) (No. 21-1832).<\/p>\n\n\n\n

[45]<\/a> 907 F.3d 659, 669 (1st Cir. 2018).<\/p>\n\n\n\n

[46]<\/a> 651 F.3d 684, 702 (7th Cir. 2011).<\/p>\n\n\n\n

[47]<\/a> 679 F.3d 510, 518 (6th Cir. 2012).<\/p>\n\n\n\n

[48]<\/a> 9 F.4th 217, 227 (3d Cir. 2021).<\/p>\n\n\n\n

[49]<\/a> 836 F.3d 336, 362 (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and in the judgments).<\/p>\n\n\n\n

[50]<\/a> Ezell<\/em>, 651 F.3d at 702.<\/p>\n\n\n\n

[51]<\/a> Moore v. Madigan, 702 F.3d 933, 935 (7th Cir. 2012).<\/p>\n\n\n\n

[52]<\/a> Greeno<\/em>, 679 F.3d at 518.<\/p>\n\n\n\n

[53]<\/a> Binderup<\/em>, 836 F.3d at 362.<\/p>\n\n\n\n

[54]<\/a> Cong. Globe, 39th Cong., 1st Sess. 517 (1866).<\/p>\n\n\n\n

[55]<\/a> Id.<\/em> at 657.<\/p>\n\n\n\n

[56]<\/a> Id.<\/em> at 654.<\/p>\n\n\n\n

[57]<\/a> Id.<\/em> at 371.<\/p>\n\n\n\n

[58]<\/a> Id.<\/em> at 1182.<\/p>\n\n\n\n

[59]<\/a> Id.<\/em> at 3210.<\/p>\n\n\n\n

[60]<\/a> Freedmen\u2019s Bureau Act of 1866, \u00a714, 14 Stat. 173, 176\u201377 (1866) (emphasis added).<\/p>\n\n\n\n

[61]<\/a> N.Y. State Rifle & Pistol Ass\u2019n, Inc. v. Bruen, 142 S. Ct. 2111, 2138 (2022).<\/p>\n\n\n\n

[62]<\/a> Id.<\/em> at 1440.<\/p>\n\n\n\n

[63]<\/sup><\/a> Id. <\/em>at 1441.<\/p>\n\n\n\n

[64]<\/sup><\/a> Id. <\/em>at 1441.<\/p>\n\n\n\n

[65]<\/a> Akhil R. Amar, The Bill of Rights: Creation and Reconstruction xiv, 223, 243 (1998).<\/p>\n\n\n\n

[66]<\/a> Professor Amar typically refers to 1866, the year the Fourteenth Amendment was drafted and sent to the states for ratification.<\/p>\n\n\n\n

[67]<\/a> Amar, supra<\/em> note 65, at xiv (emphasis in original).<\/p>\n\n\n\n

[68]<\/a> Id.<\/em><\/p>\n\n\n\n

[69]<\/a> 561 U.S. at 767 (citations omitted) (emphasis omitted).<\/p>\n\n\n\n

[70]<\/a> Amar, supra<\/em> note 65, at 257.<\/p>\n","protected":false},"excerpt":{"rendered":"

Attention Originalists: The Second Amendment was adopted in 1791, not 1868 Mark Smith* In June 2022, the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen,[1] its most significant case interpreting the scope of the Second Amendment since the landmark decision in District of Columbia v. Heller.[2] In rejecting a two-part interest balancing test, the Supreme Court instead adopted a \u201ctext, history, and tradition\u201d test to determine the Second Amendment\u2019s meaning […]<\/p>\n","protected":false},"author":135,"featured_media":2542,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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