73 Am. U. L. Rev. 1857 (2024).

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Abstract

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the “right to keep and bear arms” found in the Second Amendment, in District of Columbia v. Heller. Subsequently, the Court, in New York State Rifle & Pistol Ass’n v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. Most recently, in United States v. Rahimi, the Court seemingly changed course, upholding a statute prohibiting the possession of firearms by those under domestic violence orders of protection.

There is a great deal to criticize in the Court’s treatment of the original meaning of the Second Amendment in the line of cases beginning with Heller and culminating in Rahimi. That is the focus of Part I. Part I observes that by the time of Bruen, the Court had taken to ignoring the Second Amendment’s preamble altogether; a position difficult to reconcile with the view taken of preambles in both the framing era and Heller itself. The Court had also managed to both acknowledge and then ignore the demonstrable ambiguity in the meaning of the Second Amendment right to “bear arms.” In Rahimi, the Court ignored its prior account of the original meaning of the Second Amendment’s text altogether. We are left with an incoherent originalism, which the Court elevates framing-era regulatory practice and its contemporary analogs over its own account of the original meaning of the Second Amendment’s text, albeit without claiming any justification for doing so, or even admitting what it is doing.

Part I is a relatively conventional example of the type of legal scholarship that dissects Supreme Court opinions. Part II takes a less familiar turn by focusing on the lawyering of those who defended the laws at issue in these cases. After undertaking to show that the Supreme Court’s decisions should not be regarded as autonomous, but instead as reflecting to a considerable extent the arguments pressed on it, Part II demonstrates that the Court’s errors mirror serious litigating errors by the attorneys defending the laws at issue in these cases. These flawed litigating strategies reflect, Part II shows, an incomplete grasp of the conceptual underpinnings of originalism as a method of constitutional interpretation. Lawyers defending statutes or other legal regimes without clear framing-era antecedents must develop a more sophisticated understanding of originalist constitutional interpretation. Part III offers a guide for avoiding the kind of errors reflected in the thus-far unavailing efforts to defend challenged firearms regulation from Second Amendment attack, in both Second Amendment litigation and other areas of constitutional law.

* Professor of Law, Chapman University, Dale E. Fowler School of Law. The author is indebted to Joseph Blocher, Tara Leigh Grove, Vinay Harpalani, Sam Kamin, Alex Kreit, Celestine McConville, James Phillips, Jackie Ross, Andrea Roth, Eric Segall, Christopher Slobogin, India Thusi, Adam Winkler, and the participants at the 2023 National Conference of Constitutional Law Scholars and the 2022 Vanderbilt Criminal Justice Roundtable for their generous comments on prior drafts. The author was counsel of record, acting pro bono, in New York State Rifle & Pistol Ass’n v. Bruen and United States v. Rahimi for amici curiae The National League of Cities et al. The views expressed herein are his own and should not be attributed to any of those organizations.