The past few weeks have seen a host of new scholarship surrounding Bruen, which we will cover on the blog going forward. In a new article, Lawrence Solum and Randy Barnett consider whether “the use of history and tradition in Dobbs, Bruen, and Kennedy [can] be reconciled with the Supreme Court’s embrace of originalism.” Solum and Barnett largely answer in the negative as to Bruen, observing that “[e]valuating the constitutionality of firearms regulations by comparing them to regulations that have been traditionally accepted from the founding until today is not a method for identifying the original meaning of the text.”
A separate essay by A.W. Geisel similarly assesses Bruen‘s originalist bona fides and divides the “test into two distinct outputs: a statement about constitutional meaning, and a test for future litigants.” Specifically, Geisel contends that Bruen‘s second step “focuses exclusively on historical legal practices, which are nonequivalent to either original legal practices or the original legal understanding of the right.”
Lawrence B. Solum and Randy E. Barnett, Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition (January 26, 2023)
In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.
These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?
Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralism framework, (3) as a novel constitutional theory, which we call “historical traditionalism,” and (4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. In Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.
A.W. Geisel, Bruen is Originalish (January 25, 2023)
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.