Structural Originalism: A Better Theory of the Second Amendment

Abstract

This article describes and defends an alternative approach to constitutional originalism, and uses this approach to justify a better theory of the Second Amendment. Rather than fixate on the text and hypothesized accounts of original public meanings, it recommends a historical focus on constitutional structure and design. This more holistic use of history asks how the Constitution intended various political institutions to interact when faced with new and unforeseeable policy disputes. It generally does not privilege the normative or ideological judgments of an earlier society but seeks instead to identify the political institutions the Constitution entrusted to make those judgments in a changing world. The Court’s role is thus to preserve the historical structure of political decision-making; not enforce the historical policies themselves.

A structural originalist account of the Second Amendment first identifies the relevant natural rights from the Lockean tradition—the right to revolution or political resistance, and the right to private self-defense. The Constitution assigned care of these distinct rights to distinct institutions, each an instantiation of the sovereign People. The constitutional right to revolution fell to the universal militia, while the common-law right to self-defense rested with juries. This shared understanding of the new federalist structure is perhaps most evident in several high-profile trials from the period just after the founding, none of which contemplated a constitutional right to bear arms for purposes of self-defense. Thus, the structural distinction at the heart of the original Second Amendment protected the militia’s ability to exercise the right of revolution, but left the common law of self-defense in the care of state courts and juries.

It is unsurprising, then, that in the early republican years many states regulated the weapons of private conflict without ever implicating the Second Amendment or its state analogs. It is true that in the 1850s some abolitionists began to claim an “individual” right to revolution as justification for armed resistance to slavery, but this was far from the mainstream view when the War began. After the War, when Congress enacted legislation and ultimately the Fourteenth Amendment to combat ongoing racial subordination in the South, it is clear that the goal was simply to end racial discrimination; not supplant the substance of the common law or create a general federal police power. Contemporaneous constitutional commentary and the Court’s decision in United States v. Cruikshank accordingly confirm the states’ continuing authority to regulate private violence and the scope of common law self-defense-—so long as blacks and whites are treated alike.

Structural originalism thus produces a common-sense account of the Second and Fourteenth Amendments for our deeply troubled times; one which permits states to regulate self-defense and the weapons of private violence in racially nondiscriminatory ways.

Keywords: Originalism, Second Amendment, Fourteenth Amendment, Constitutional Theory, Constitutional History, Structuralism, Legal Theory