The U.S. Supreme Court last year issued a potentially devastating ruling for communities beleaguered by gun violence, striking down New York’s law regulating concealed weapons in public. The ruling employed the controversial legal theory of constitutional originalism: interpreting the Constitution based strictly on the original understanding of its text at the time it was adopted.
Lower courts have since applied this standard to rule that restraining orders for domestic violence can’t bar individuals from obtaining weapons, and that it’s OK to file the serial numbers off of guns — since neither domestic violence protections nor the modern law enforcement tool of serial numbers were common when the Constitution was written in 1787. These and other rulings highlight how unworkable it is to hobble modern gun policy based on standards of the front-loading-musket era.
The high court last week allowed a revised New York gun restriction to stand pending continuing litigation. But Justices Samuel Alito and Clarence Thomas, originalism’s two loudest proponents on the court, issued an ominous joint statement stressing that it was a procedural decision — and encouraging the law’s opponents to continue their challenges.
The danger of originalism was also manifest in the court’s overturn of Roe v. Wade last year, which was based in part on the dystopian premise that women’s abortion rights today should be girded by societal standards in place long before women were even allowed to vote. In its eagerness to rip away those rights, the conservative majority so disregarded precedent and judicial restraint that even concurring Chief Justice John Roberts chided his colleagues for overreaching.
Thomas, on the other hand, thinks the court should be going further down the originalist path. In his own concurring opinion on the abortion ruling, Thomas noted that contraception and same-sex relationships were also not legally protected rights when the Constitution was ratified, and suggested those are rights the court should be reconsidering.
It was Thomas who wrote the majority opinion in last summer’s New York State Rifle &Pistol Association v. Bruen, which not only invalidated New York’s conceal carry restrictions but declared that any gun law, anywhere, might be deemed unconstitutional unless it has “historical analogues” from when the Second Amendment was ratified — in 1791.
Since-retired Justice Stephen Breyer, in his dissent, noted the obvious: “Laws addressing repeating crossbows … and other ancient weapons will be of little help to courts confronting modern problems.”
There are few modern problems more pressing than America’s gun violence crisis. The Founders would perhaps find it odd that their stated intent in the Second Amendment — to allow for “well-regulated” state militias — has been interpreted by today’s Supreme Court to prevent communities from protecting the public against criminals and lunatics armed with weapons that would have been unimaginable in the 18th century.