Bruen is Originalish

Abstract

In the wake of New York State Rifle & Pistol Assn., Inc. v. Bruen, commentators have divided over one seemingly simple question: is the case Originalist? This Essay presents a reading of Bruen that splits Justice Thomas’s “text-and-history” test into two distinct outputs: a statement about constitutional meaning, and a test for future litigants. The former is Originalist, but the latter is not, which leaves Bruen somewhere between Originalism and non-Originalism. Put simply, the case is ‘Originalish.’

By closely examining the language of Justice Thomas’s majority opinion and situating the text-and-history test within his larger constitutional-interpretive project, this Essay charts an inroad toward a sensible reading of the Supreme Court’s current Second Amendment doctrine, one which may prove useful to litigants, judges, and scholars alike.

Keywords: Bruen, second amendment, guns, constitutional interpretation, originalism, Supreme Court