This week, in Bostock v. Clayton County, the Supreme Court held 6-3 that discrimination “because of sex” in Title VII of the Civil Rights Act of 1964 includes discrimination against gays, lesbians, bisexuals and transgender persons. The decision was a huge victory for LGBTQ equality, but I want to discuss its implications for Second Amendment doctrine. In sum, the meaning of “bear arms” in the Second Amendment – still undecided by the Court – may come down to what kind of textualism the Justices adopt – that of Justice Neil Gorsuch’s majority opinion in Bostock or that of Justice Brett Kavanaugh’s dissent.
Bostock dealt with allegations of discrimination in employment by a gay man and transgender woman. Both claimed they had been discriminated against “because of sex” in violation of Title VII. Justice Gorsuch wrote for the majority and stated the task simply. It is to apply the statute “in accord with the ordinary public meaning of its terms at the time of its enactment.” He then broke Title VII apart into its constituent terms. Title VII prohibits “discrimination . . . because of . . . sex.” The ordinary meaning is easily applied. Discrimination means “treating [an] individual worse than others who are similarly situated.” “Because of” means “by reason of or on account of.” “Sex” means the “status of male or female” as determined by “reproductive biology.”
Putting the statute back together, discrimination against a man on account of his sexual attraction to other men; or to a woman on account of her sexual attraction to other women; is discrimination motivated by the prohibited characteristic – the sex of the person as a man or a woman. Why? Because a man attracted to a woman or a woman attracted to a man would not suffer similar treatment, and the only distinguishing (and prohibited) factor between the two sets of cases is the sex of the person.
Justice Kavanaugh also applied the plain textual meaning of Title VII and came to the opposite conclusion. First, Justice Kavanaugh says, “courts must follow ordinary meaning, not literal meaning.” Furthermore, “courts must adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.” And that is because “a phrase may have a more precise or confined meaning than the literal meaning of the individual words in the phrase.” According to Kavanaugh, breaking the text of Title VII apart into “discrimination” and “because of” and “sex” distorts, rather than reveals, the judicial task. The task is to determine what “discrimination because of sex” meant to Congress in 1964, and that phrase didn’t include discrimination based on sexual orientation according to the dissent.
It’s easy to see how these textualist disputes are germane to the open question of the meaning of “the right . . . to . . . bear arms.” Taking these words literally, as Justice Gorsuch does in Bostock, in 1791 “bear” meant “carry”; “arms” meant “weapons,” and therefore a right to “bear arms” meant simply a right to “carry weapons.” This is the predominant argument among gun-rights advocates. Conversely, as Justice Kavanaugh suggests, the ordinary meaning of “bear arms” is not the literal meaning of “bear” plus “arms” in 1791, but the ordinary meaning of the phrase “bear arms.” And “bear arms” – as recent big-data research of eighteenth-century records shows – is a phrase with a military and collective meaning, not a phrase that meant simply to carry weapons.
Bostock demonstrates once again that a shared commitment to textualism does not lead invariably to shared outcomes, nor to outcomes easily predicted by political ideology.