An Opportunity to Clarify 1791 vs. 1868

As the Supreme Court prepares for oral argument on Tuesday next week in Wolford v. Lopez, it should consider resolving the relevant time period for interpreting the scope of the Second Amendment.  The issue arises in contexts as diverse as the federal prohibitions on certain classes of people (see post here) and whether adults aged 18 to 20 have Second Amendment rights (see post here).  It is pertinent to the Wolford issue of Hawaii’s default rule of no guns on private property open to the public without prior consent.

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court rejected interest-balancing under the Second Amendment, instead requiring that laws that implicate the plain text of the Second Amendment be “consistent with this Nation’s historical tradition of firearm regulation.” In doing so, Bruen reiterated the Supreme Court’s assurance, offered many times before, that rights applied to the states have the same scope when applied to the federal government. And it further stated that it had “generally assumed that the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.” (Some lower courts have decided that the Supreme Court was incorrect when it so “assumed” and have purported to decide that 1868 is the better date.)  And when it came time to reviewing late-nineteenth century evidence, the Court said that such evidence has no more than confirmatory value “of what the Court thought had already been established [by earlier sources].”

To be sure, the Court in Bruen acknowledged a “ongoing scholarly debate” over whether courts should rely on evidence from the ratification of the Bill of Rights in 1791, or on evidence from when the Fourteenth Amendment was ratified in 1868. The Court’s statements throughout the rest of the opinion, and its prior precedent establish that 1791, not 1868, is the proper period to look for evidence of the original public meaning of the Second Amendment.

Start with the principle that the Second Amendment means the same thing applied against the federal government and the states. The ratifiers of the Fourteenth Amendment did not think that they were incorporating different rights against the states than those that were recognized at the Founding; to the contrary, they thought they were taking existing rights and expanding where they applied and to whom. The Supreme Court has acknowledged this principle time and again in cases like Ramos v. Louisiana (2020) (jury right) and Timbs v. Indiana (2019) (excessive fines), holding that the provisions of the Bill of Rights must be given the same scope regardless of what level of government they constrain.

In McDonald v. Chicago (2010), the Court quoted Malloy v. Hogan (1964) (self-incrimination) to say that the Fourteenth Amendment does not apply to the states “only a watered-down, subjective version of the individual guarantees of the Bill of Rights.” Perhaps the best example of this was the Court’s Espinoza v. Montana Dep’t of Revenue (2020) decision where it rejected 30 State laws contrary to the Court’s finding of the original meaning of the First Amendment’s Free Exercise Clause.

Furthermore, whether a right applies to both the federal government and the states, the meaning of that right is fixed when it is adopted and does not change over time. As the Court stated in Bruen, the Constitution’s “meaning is fixed according to the understandings of those who ratified it.” Again, this is a very old principle of constitutional interpretation. Justice Thomas’s concurrence in McIntyre v. Ohio Elections Comm’n (1995) (free speech) notes that since the 1838 decision in Rhode Island v. Massachusetts, the Supreme Court interprets the Constitution based on “the words of the constitution and the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions.” Thus, constitutional texts, such as the Bill of Rights, have the same meaning when ratified as they do now.

These two premises lead to an obvious conclusion. When interpreting the Second Amendment, the time immediately surrounding its ratification in 1791 is the proper time period to look to for historical evidence of firearm regulation.

Reconstruction evidence standing alone cannot provide an authoritative interpretation of the Second Amendment. The Fourteenth Amendment incorporated the Bill of Rights and its fixed meaning against the states. Thus, under current Supreme Court precedent, the Fourteenth Amendment did not change the scope of the right incorporated against the states. Any late-breaking Reconstruction-era tradition that regulated the right to keep and bear arms in a way contrary to the Founding generation’s understanding of the right should be rejected as inconsistent with the original public meaning of the Second Amendment.  For a comprehensive analysis, see Mark W. Smith, Attention Originalists, Harvard JLPP (Fall 2022).

The Supreme Court declined to make this issue one of the questions presented in Wolford, but it nevertheless has the opportunity to settle the issue in that case or at least to emphasize that 1791 must deserve pride of place, if not exclusive consideration, in Second Amendment cases.