Private Governance and Originalism

Abstract

Constitutional law increasingly privileges evidence of America's historical regulatory tradition. In cases involving individual rights and structural provisions, courts examine whether modern laws subject to constitutional challenge resemble regulatory principles from key eras of the past. The legal analysis, however, often skips a threshold question: can the practices of private, non-governmental groups bear on modern legislative action? 

As courts turn to history and tradition, especially after the Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen adopting an exclusively historical test for Second Amendment challenges to gun laws, private historical practices are more likely than ever to surface in constitutional cases. These include law-like rules and practices more broadly, of private groups such as corporations, schools, fraternal organizations, and benevolent societies. To coherently evaluate this historical evidence, courts must appreciate that private society played a prominent role in early America closely intertwined with politics. 

Using case studies from Second Amendment law, this Article demonstrates how evidence from the private realm has divided federal courts. I show that this phenomenon is widespread and underappreciated, including by identifying newly unearthed examples of private organization rules in the firearm context. Finally, I examine how such practices should be handled under historically focused methods of constitutional adjudication. I argue that private practices developed in the shadow of common law doctrines that protected natural rights against private infringement, emerged during a period when voluntary associations dominated everyday life and served as democratic incubators, and may shed critical light on the historical principles that drive modern constitutional jurisprudence.

Keywords: Constitutional Law, Originalism, Second Amendment, Bruen, Equal Protection, Legal History, History and Tradition, Supreme Court