On gun rights, Supreme Court ‘originalists’ don’t look at ‘original’ history of guns

Michael Coblenz
Fri, November 19, 2021, 7:06 AM·3 min read

Ah yes, Originalism. A majority of the current conservative members of the U.S. Supreme Court claim to be “originalists” who assert that the Constitution should be interpreted based on the “original intent” of the Framers. According to self-described originalists, Justice Brent Kavanaugh, the Court can glean this intent by looking at the “text, history, and traditions” of the Constitutional provision in question.

We can see how these originalists apply their theory in the recent Supreme Court gun rights case of New York State Rifle & Pistol Association v. Bruen, which deals with New York state’s restriction on carrying a concealed handgun in public. What does the text, history, and tradition have to say about this issue?

The text – the Second Amendment – states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This is ambiguous and doesn’t really address whether a person can carry a concealed weapon in public. What do history and tradition teach?

How did governments deal with guns in the new nation? There were quite vigorous controls over weapons in the colonies during the Revolution, and most were adopted when the colonies became states. Some states mandated that every able-bodied man of legal age own a “militarily useful” weapon. Most required an accounting of these weapons – through registration and reporting to the government – or mandated a “muster” of all able-bodied men with their weapons. New Hampshire and Rhode Island conducted door-to-door surveys to ensure compliance. Ten of the original 13 states also had “impressment” laws allowing militias to confiscate private weapons, which obviously meant a citizen wouldn’t have a firearm for self-protection.

These laws were the historical consequence of the Revolution, where citizen-soldiers formed militias to fight the British. They also correspond with the idea that the Second Amendment was about the ownership of weapons as part of an organized militia.

There were plenty of other laws restricting gun ownership that didn’t deal with militia uses. Most states only allowed able-bodied white males to have weapons, and specifically forbade women, blacks (free or enslaved), natives, mixed race – and in a few states Catholics – from owning a firearm. Some states, and quite a few cities, had strict rules on the storage of gunpowder, which at the time was quite dangerous. Many states, particularly slave states, required the “safe storage” of weapons to ensure they didn’t fall into the wrong hands. Oh, and almost all states had strict rules on carrying weapons in public.

This was the history and tradition that the Supreme Court drew on when it considered gun rights cases. For 217 years the Court said the Second Amendment didn’t provide a general right of gun ownership, and therefore the states were free to broadly regulate weapons.

But in 2008, in District of Columbia v. Heller, the Supreme Court changed course, and held that the Second Amendment provided an individual right to keep and bear arms. Justice Antonin Scalia ignored two centuries of clear history and said that the “central component” of the Second Amendment was “the inherent right of self-defense.”

At oral argument before the Court on Nov. 3, none of the so-called “Originalists” asked either party about this history of Founding Era gun control. But they had many questions about restricting a citizen’s ability to own a gun for self-defense. While this may be a rational concern, it has absolutely nothing to do with the text or the original understanding of the Second Amendment to the Constitution.

Based on the questioning at oral argument, it seems likely that the Supreme Court will strike down the gun control restrictions in the NY State Rifle case. This will expand individual gun rights. But it will also clearly show that the conservative justices’ assertions about “originalism,” and their claims to have a core set of beliefs, are nonsense.


Michael Coblenz is a patent attorney in Lexington. He can be reached at mike@coblenzlaw.com.