Bruen is Originalish

24 Pages Posted: 25 Jan 2023

See all articles by A.W. Geisel

A.W. Geisel

University of Pennsylvania Carey Law School

Date Written: January 23, 2023

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

Suggested Citation

Geisel, A.W., Bruen is Originalish (January 23, 2023). Available at SSRN: https://ssrn.com/abstract=4335950 or http://dx.doi.org/10.2139/ssrn.4335950

A.W. Geisel (Contact Author)

University of Pennsylvania Carey Law School ( email )

Philadelphia, PA 19104
United States

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