New York State Rifle and Pistol Association v. Bruen: Originalism and the Relevance of Common Law and Reconstruction-Era Restrictions on Exercise of a Right

Abstract

District of Columbia v. Heller was the Court’s first express acknowledgement of originalism as its favored tool of constitutional interpretation, and Bruen was the Court’s first effort to create a methodology for use of that tool. In the course of that effort, both majority and dissent debated the relevance of common law and post-1868 restrictions on the American right to arms.

This article examines the relevance of those restrictions, and suggests that both majority and dissent overlooked two essentials.

First, Bruen acknowledges that accepted legal restrictions of a right in 1791 are relevant to its interpretation because they illustrate what early Americans would have seen as the boundaries of the right, and the meaning they would have attributed to phrases like “freedom of speech and “right to keep and bear arms.”

But both majority and dissent incorrectly assume that the common law restrictions (including a 1328 statute and subsequent royal proclamations) were applicable to the American colonies. In fact (pursuant to their charters) those colonies’ legislatures and judiciary created their own law, accepting the common law where relevant to their conditions. Arms-bearing was one field where they completely rejected common law restrictions; instead of limiting the right, they ordered that it be exercised. What the common law restricted, the colonies made a legal duty. No American of 1791 would have seen the common law restrictions as defining the American right.

Moreover, an American of 1791 would have had no way to know of the English medieval restrictions. The compilations of English statutory and case law we depend upon today are the products of 19th century and early 20th century research. In 1791, even a determined researcher in London would have found them hard to obtain; to an American of that period, they would have been impossible to obtain.

As to post-1868 measures, both the majority and dissent fail to recognize that the legislation and case law cited arose under state constitutions that varied significantly from the Second Amendment. Many cases arose under provisions that guaranteed a right “for the common defense,” a provision that the first Senate voted down as a restriction to the Second Amendment. Some also provided that the legislature could regulate the right to bear arms, largely negating the guarantee.

Keywords: second amendment, right to arms, fourteenth amendment, bruen

JEL Classification: k19