On Nov. 3, the Supreme Court of the United States (SCOTUS) heard an important gun rights case—its most important such case in decades—and its ruling is now eagerly awaited by all sides. At issue is the meaning of the clear language of the Second Amendment, which insists that “the right of the people to keep and bear Arms shall not be infringed.”
My objective is to use this case to examine, not so much the issue of gun rights, but rather the philosophy of original intent jurisprudence that has governed the Republican and conservative approach to the courts for nearly half a century.
Two New Yorkers claim that since they have a constitutional right to bear arms, they shouldn’t have to show cause for why they need to have arms any more than they should have to show cause for why they’re exercising their free speech or practicing their religion. Rights, in other words, don’t require government approval in order to be exercised by citizens in a free society.
This alone would seem to settle the issue. The language of the Constitution couldn’t be more clear. “Shall not be infringed” can hardly mean “shall not be infringed unless the authorities decide you have no good reason to carry a firearm.” Even so, the liberal justices on the Supreme Court—Stephen Breyer, Sonia Sotomayor, and Elena Kagan—appealed to the history and context of the Second Amendment to suggest precisely such an interpretation.
Sotomayor appealed to English common law to suggest that while ownership of guns was generally permitted, there were many restrictions on carrying those guns into public places. Kagan noted that previous Supreme Court rulings, such as the Heller decision, affirmed gun rights while “basically [putting] a stamp of approval” on a variety of gun control measures, such as restricting gun ownership for people convicted of felonies or the mentally ill.
Let’s pay attention to what’s going on here. The progressive justices are using the context surrounding the Second Amendment to undermine the clear language of the text. Now, the conservative justices didn’t seem to be persuaded. Justice Brett Kavanaugh suggested that the constitutionality of the New York law could easily be resolved simply by consulting the clear language of the text, without having to go much further.
“We start [the analysis] with the text, which ... grants a right to carry, and then historical practice can justify certain kinds of regulations, but the baseline is always the right established in the text,” he said.
Kavanaugh’s judicial philosophy, at least as articulated here, can be called textualism, in that it establishes the primacy of what’s written in the Constitution itself. But for several decades now, conservatives and Republicans have sworn to appoint justices committed to originalism, the philosophy that the meaning of a text is established through unearthing the original intentions of the framers who wrote that text. Judge Robert Bork’s classic work, “The Tempting of America,” articulated and ably defended the originalist approach more than 30 years ago.
