The U.S. Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen (2022) is one of the most significant constitutional rulings in recent decades. It does not concern firearms alone, but also how the Constitution is interpreted more broadly. Originalism was key principle in reasoning of Bruen. But, was one important perspective overlooked as a result of this interpretive approach and the principle of originalism?
In the Bruen case the main question was that does the New York’s requirement of “proper cause” violate the Second Amendment which guarantees the right to keep and bear arms. This question originates from the law of the State of New York that makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” if he can prove that “proper cause exists” for doing so.
In the Bruen case the judges refer strongly to originalism. Originalism is a theory of interpreting legal texts holding that a text in law, especially the U.S. Constitution, should be interpreted as it was understood at the time of its adoption. In other words, the Constitution is interpreted according to its original public meaning at the time it was adopted. This view is the opposite of the “living constitutionalism” theory, which asserts that the Constitution is living and can evolve with society, and that the meaning of constitutional texts changes over time.
Originalism is particularly evident in Bruen case. In its earlier decisions, the Court weighed firearm regulations against modern public safety interests on the basis of statistical evidence. In Bruen case, however, the Court abandoned this practice and replaced it with a new test. Under this new test, the only questions asked were whether the conduct at issue falls within the scope of the Constitution (in this case, public carry of firearms) and, if so, whether the restriction has a historical analogue in regulation from the time of the founding of the United States.
The Court thus concluded that if no historical analogue exists, the law is unconstitutional—regardless of how reasonable or beneficial it may appear in the present day. This is pure originalism: the content of fundamental rights does not change along with societal conditions; instead, their boundaries must be sought in history. But how this reflects to guns and what they are?
It’s interesting that in Bruen case the Court didn’t discuss the concept of gun or what it meant in the time of 2ndAmendment. It is obvious that in 1790 firearms were entirely different from those of the modern era. While the purpose of weapons was even then to inflict harm, in 1790 firearms were inefficient and slow to use. At that time, there could have been no understanding of how dangerous weapons could be in the future; there was no knowledge of automatic weapons or firearms capable of sustained rapid fire. Moreover, the concept of a ‘weapon’ also encompasses nuclear weapons and other weapons of mass destruction, even though in this context this remains a purely theoretical perspective.
The core of originalism is to interpret the law as it can be understood in its own time. This should also include the assumptions and premises on which the law was written. If, in the 1790s, it had been known how destructive weapons would become in the future and how dramatically the populations of large cities would grow, would such a fundamental right have been enacted? In interpreting Bruen case, the Court should at the very least have considered what the concept of a ‘weapon’ meant at the time of enactment and whether the right to bear arms truly extends to all types of weapons.
This perspective was addressed indirectly in the dissenting opinion, which noted that numerous studies and public safety statistics support stricter regulation of firearms. The Court, however, disregarded these considerations. In Bruen case, the argument relied heavily on originalism, but without examining the concept of a ‘weapon’ itself. As a result, the deepest core of originalism may have been overlooked: what the law was intended to mean and to achieve at the time of its enactment.
Team Trump & Bruen