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Abstract
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New York State Rifle & Pistol Association, Inc. v. Bruen, marks the next evolution in U.S. gun laws as the judiciary continues to define the limits state actors can place on law-abiding citizens.1 Underlying the case's merits is the revival of a lingering struggle among Originalists. Namely, the level of generality Justices and judges should seek when trying to adjudicate whether any gun law violates the Second Amendment.
At oral argument, Justice Barrett suggested that Bruen relies on the level of generality with which the Justices consider the Second Amendment.2 Toying with her inquiry further, one might ask--did the Framers believe (or intend) that the Second Amendment would prohibit regulation of arms for self-defense in general? The answer is probably no, so should courts let the government dictate how arms are carried outside the home with broad discretion? Perhaps, the framing of the question should be whether objectively reasonable and educated citizens in the eighteenth century would understand the Second Amendment to guarantee the right to carry arms for self-defense outside of the home. Probably yes, given how broad this understanding is, so courts must limit how the government infringes on this right. The point here is that there are myriad ways to pose the same question and achieve one's desired outcome. As Judge Easterbrook aptly examines, "[m]ovements in the level of constitutional generality may be used to justify almost any outcome." Judge Bork goes even further, claiming that when judges ascend the ladder of generality, they "create[] a concept without limits, thus ensuring erratic judicial enforcement."4 Not only can constitutional generality justify almost any outcome, but it can also guarantee any outcome.
While problems of constitutional generality are not unique to any one specific interpretive methodology, they have proven to be particularly tricky for theories that premise themselves on concepts like judicial restraint and constraint. Enter, Originalism. Originalism is more relevant now than ever before,5 and (in this author's opinion) recent Supreme Court appointments prove this.6 Now, more than ever, attorneys must master Originalist arguments to advocate properly for their clients in the courtroom.
Once considered a conservative's vehicle for propelling forward a political agenda, Originalism is now an increasingly popular method of constitutional interpretation by liberal legal minds.7 In fact, the Supreme Court's newest addition, Justice Ketanji Brown Jackson, has already demonstrated how important it is for left-leaning jurists to embrace Originalist arguments.8 Not only is it important for liberal judges to familiarize themselves with Originalism, this knowledge is vital to bolster one's odds at ever receiving a nomination to the nation's highest court.9
Originalism's growing adoption and expansion began with the transition from "Old Originalism" to "New Originalism." Or, as James Fleming describes it, "the movement from a focus on intention of the Framers to original public meaning. . . [as well as] the articulation of and emphasis on the distinction between interpretation and construction."10 With this transition to original public meaning has come the opportunity to manipulate history and tradition in a way that produces desirable results, regardless of one's political views on a subject.11 In this way, New Originalism has the flexibility and staying power to ensure its formidability as an interpretive method for decades to come.
That said, this manipulability may be more of a bug than a feature, especially among those faithful to the empire of Originalism in-earnest. The draw to Originalism was the promise of objectivity, neutrality, and judicial constraint.12 Whether New Originalism maintains these essential components is subject to vigorous debate, with many scholars answering negatively: Thomas Colby suggests that the alleged abandonment of constraint could directly correlate to New Originalism's newfound dominance, relative to its Old Originalism counterpart.13 One way both sides of the political aisle manipulate Originalism is in deployment of levels of generality when defining a constitutional right or contesting the scope of that right.14 The dangers of constitutional abstraction are well documented in Originalist scholarship, and are likely to play a significant role in continuing judicial battles of abortion, vaccines, and the subject of this article, guns.15
Through Bruen, this Article grapples with the problems that are baked into Originalist methodology through levels of generality and attempts to reconcile them with the methodology's goal of judicial constraint. Part II examines competing scholarly proposals to the level of generality problem, essentially introducing the concepts utilized throughout this analysis. Part III examines how the parties in Bruen argue the Framers' understanding of the Second Amendment and how courts have dealt with the scope of Second Amendment rights in response to traditional interpretive accounts. As this Article suggests, the key to determining the level of generality may reside in how the public understood these levels themselves at the time of ratification. Part IV proposes the level of generality judges ought to apply in analyzing Second Amendment rights in Bruen and cases that come before the Court in the future. In Part IV, this Article attempts to wed the legal academy's theory-based Originalism with the judiciary's oft pragmatic Originalism. This attempt entails combining the theories of Justice Antonin Scalia and Professor Jack Balkin, creating a new method of choosing the appropriate level of generality, and offering a novel solution to this problem for the future.
Available at: https://open.mitchellhamline.edu/mhlr/vol49/iss1/3
Language: en |