This essay was first published in the June 25, 2022 Epoch Times.
The Supreme Court’s decision in New York State Rifle and Pistol Assn. v. Bruen (pdf) was a signal victory for the right to keep and bear arms. Reading Justice Clarence Thomas’s opinion for the court is a rich journey through constitutional law and history. The opinion may become a SCOTUS classic.
However, the case has implications more important still—implications that go well beyond the Second Amendment. Amid all the noise surrounding the court’s holding, you probably won’t read about those implications anywhere but here.
First, though, I’m delighted to report that Justice Thomas gave due credit to the work of Dave Kopel, my Independence Institute colleague who is probably the leading Second Amendment scholar on the face of the planet.
Challenging ‘Progressive’ Constitutional Method
Most of the Supreme Court’s constitutional-rights precedents date from the 20th century, when “progressive” justices dominated the bench. Those justices usually didn’t pay adequate attention to the historical meaning of the Constitution’s words and phrases. They usually didn’t inquire, for example, into the historical meaning of terms such as “the freedom of speech.”
Instead, they usually applied balancing tests. An early example was the 1944 case that upheld the mass detention, without charges or trial, of tens of thousands of American citizens of Japanese extraction—a case I discussed in an earlier column for The Epoch Times.
The Constitution says explicitly that the government shall deprive no person of “liberty … without due process of law.” It also says that before the writ of habeas corpus (the traditional remedy for unlawful imprisonment) is suspended, certain conditions have to occur. Yet in Korematzu v. United States (pdf), the court balanced away all those rights. It did so under what we now call the “strict scrutiny” test: Government may override even an explicit constitutional right with a law “necessary” to further goals that the justices think are strong enough.
After Korematsu was decided, the justices applied this balancing approach to free speech, free exercise of religion, and other constitutional liberties. Occasionally, as in some pornography cases, this approach shielded conduct the Constitution didn’t really protect at all. More often, the balancing approach privileged government over individual citizens.
As for rights that liberal justices didn’t think as important as free speech (such as economic liberties), the court applied balancing tests that empowered government even more.
To be sure, some parts of the Constitution do call for balancing. One example is the Fourth Amendment ban on “unreasonable” searches and seizures. But most parts of the Constitution reflect the document’s own balances and compromises. There is no call for justices to replace those balances and compromises with their own notions of what is and isn’t important.
Despite all the misleading ballyhoo about the Supreme Court now having a “conservative majority,” the current justices generally have continued to apply the precedents and methods invented by their liberal predecessors.
In 2008, the Supreme Court issued United States v. Heller (pdf). It ruled that the Second Amendment created an individual right to keep and bear arms. Lower federal courts then started applying balancing tests to the individual right. Even if a law or regulation exceeded government’s traditional power to regulate firearm usage, judges still upheld it if they thought the law or rule was sufficiently important and “narrowly tailored.”
Justice Thomas’s opinion—and remember, he was writing as a representative of the court not merely for himself—affirms, however, that the scope of the right to keep and bear arms is fixed by the words of the amendment. The law is reflected in those words, not in some judge’s idea of what is important.
Of course, the opinion applies only to the Second Amendment. At this point, judges still may balance away other constitutional rights. Perhaps, however, his opinion marks the beginning of a return to a more accurate meaning of other rights as well.
How Can You Show Original Understanding/Meaning?
Many lawyers and commentators have an annoying habit of trying to prove constitutional meaning with “evidence” far removed from the time when the Constitution was adopted. For example, they may argue that the Constitution reflects a rule of English common law that prevailed in the year 1400, even though the rule was abandoned long before the Constitution was ratified (1787–90) or the Bill of Rights was adopted (1791).
More commonly, they trot out “evidence” arising months, years, or even decades after the ratification was complete.
Unfortunately, this is not just a bush league error: Some of the most prestigious constitutional law professors do this sort of thing. The Supreme Court is sometimes complicit as well—and Justice Antonin Scalia’s opinion in the Heller case is a good example. It never seems to occur to these people that the understanding of the Constitution’s ratifiers could not have been influenced by events that hadn’t yet happened.
Thomas’s opinion for the court in this firearms case recognizes that sometimes subsequent practice can clarify (“liquidate”) ambiguous phrases. But most cases are not in that category. One of the most refreshing parts of his opinion is his caution against “evidence” that is either too early or too late to be part of the constitutional bargain.
In a concurring opinion, Justice Amy Coney Barrett underscored this: “[T]oday’s decision should not be understood,” she wrote, “to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights. On the contrary, the Court is careful to caution ‘against giving post-enactment history more weight than it can rightly bear.’”
Original Meaning or Original Understanding?
Another implication of Thomas’s opinion is more subtle. Here’s some background:
In our legal system, the traditional way of construing most legal documents is to inquire into how the parties to the document understood its terms. Only when understandings conflict, or are unrecoverable, do the courts apply the words of the document as a third party would read them.
Those who wrote and adopted the Constitution expected it to be interpreted that way. We call this method “original understanding” (pdf). Examining how third parties would read the document—called “original meaning”—is applied only if the original understanding cannot be recovered.
For reasons too complicated to review now, during the 1980s, constitutional commentators began to invert the traditional rule of interpretation. They applied original meaning at the expense of original understanding. Although the framers didn’t write the document to be read that way, this focus on “original meaning” has become orthodoxy.
So it’s refreshing to report that, while Thomas’s opinion uses both concepts, it edges back toward the correct position: Of the Constitution, he writes, “its meaning is fixed, according to the understandings of those who ratified it” and “the scope of the protection [of a provision in the Bill of Rights] is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.”
Time will tell if the court builds on this view, but a foundation has been laid.