Fake Originalism and the Right to Bear Arms

The U.S. Constitution’s Second Amendment provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In some respects, the meaning of this provision is open to legitimate debate. But one question is answered with perfect clarity by the constitutional text. The Second Amendment protects the right both to keep and to bear arms. Or so one would think. Recently, however, the U.S. Court of Appeals for the Ninth Circuit effectively expunged the right to bear arms from the text. Remarkably, the court purported to base this expungement on the original meaning of the Constitution.

For over two centuries, the Supreme Court left fundamental questions about the Second Amendment unresolved. In a 5-4 decision in 2008, however, District of Columbia v. Heller held that the Second Amendment protects a private right, unconnected with the militia, to keep a handgun in one’s home for self-defense. Two years later, the same 5-4 majority concluded in McDonald v. City of Chicago that the Fourteenth Amendment makes the Second Amendment (which always applied to the federal government) applicable to state and local governments as well.

These decisions are supported by powerful legal arguments based, respectively, on evidence of the Constitution’s original meaning and on settled judicial precedents. But they left lots of questions open. How far may government go in restricting the possession of weapons other than the kind of handgun at issue in Heller? How much latitude does the government have in denying access to weapons by particular classes of people, such as convicted criminals and juveniles? To what extent may government put regulatory burdens, such as licensing requirements, on the exercise of Second Amendment rights?

Despite considerable disarray in the lower courts, the Supreme Court has declined to address any of these questions. The most important outstanding issue concerns the government’s power to restrict the right of citizens to bear arms. As with many other questions involving the Second Amendment, there is room for reasonable debate about the exact scope of that right. But the Constitution leaves no doubt about its existence.

Several years ago, the Ninth Circuit held that the Second Amendment does not protect the right to carry a concealed weapon in public. In its recent 7-4 decision in Young v. Hawaii, that court has now taken the next and final step: “There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment.” Notwithstanding a couple of strangely delphic suggestions that the right to bear arms might be something other than the right to carry them in public, the court deleted that right from the Constitution.

This aggressive exercise of judicial power does not rest on the once-fashionable “living Constitution,” a fiction through which judges may amend the written Constitution to conform with their own policy views. At least not openly. Young is instead based on fake originalism.

Fake originalism comes in several varieties, including living originalism, common-good originalism, and living textualism. All of them wrap judicial usurpation of the authority to amend the law in the respectable guise of originalism. Many questions about original meaning are honestly hard to answer because the relevant evidence is sparse, equivocal, or both. But some arguments are so illogical and bereft of supporting evidence that they constitute a stealth form of living constitutionalism. The Young opinion, more than a hundred pages long, is a massive exercise in fake originalism.

The majority opinion was written by Judge Jay S. Bybee, a George W. Bush appointee who is an accomplished legal scholar. He has taught and published widely in the field of constitutional law, and his academic literary skills are on full display in Young. The court’s treatment of the Constitution cannot be attributed to incompetence, carelessness, or an inability to understand Judge Diarmuid O’Scannlain’s crushing dissent.

The Young majority seems to think that American citizens are properly viewed as subjects who can and must rely on a beneficent Leviathan.

The Young majority does not even pretend to offer historical evidence directly supporting its contention that the words “right of the people to . . . bear Arms” do not refer to a right to carry weapons in public. Instead, the court’s starting point is Heller’s statement that the Second Amendment codified a pre-existing right that can be traced back to England. Young’s genealogy focuses heavily on the 14th-century Statute of Northampton. That law’s text could be read either as a prohibition against displaying arms in a threatening manner or as an absolute prohibition on bearing arms in public without leave from the King. Young treats it as an absolute prohibition, which remained in force throughout English history, and was then accepted in America.

However the statute may have been interpreted by English subjects at various times, there is no evidence that American citizens accepted the legitimacy of any such absolute prohibition on bearing arms in public. Young cites six laws that were enacted around the time the Second Amendment was adopted. North Carolina (1792) is said by the court to have reproduced the English statute nearly verbatim, absurdly including its references to the King. Louisiana’s ban on concealed carry (1813) did not even resemble the English text. The other four all contained limiting language that was absent from the Statute of Northampton.

Virginia (1786), for example, prohibited going or riding armed “in terror of the Country.” Tennessee (1801) prohibited going “armed to the terror of the people.” Massachusetts (1795) and Maine (1821) authorized the arrest of people who “ride or go armed offensively, to the fear or terror of the good citizens.” No one could honestly think that American citizens in any of these states (or any others for that matter) were forbidden to step out of their homes while carrying a gun. Young’s lengthy history of the Statute of Northampton is a giant red herring.

Young also canvasses 19th-century state court decisions for evidence of what the pre-1791 right encompassed. Some of those decisions upheld bans on carrying concealed weapons, while expressly repudiating the notion that the government may ban both open and concealed carry. A few courts assumed that the right to keep and bear arms exists only in connection with military service. But Heller unequivocally rejected the proposition that the Second Amendment contains such a limitation. Not a single court adopted Young’s view that the private right to have arms for self-defense does not extend to bearing them in public. The court’s litany of cases is just another diversionary tactic.

The opinion has other problems as well, including some troubling omissions from the sources. But even on its face, the majority’s historical argument amounts to little more than an elaborate smokescreen. This should be no surprise. Hidden behind the smoke is the text of the Constitution, which the majority prefers not to confront.

Along with its sham search for the original meaning of the Second Amendment, the majority offers this bit of political philosophy: “Protection is the quid pro quo for our allegiance to the government. . . . The king who cannot guarantee the security of his subjects—from threats internal or external—will not likely remain sovereign for long.”

What is the point of this dictum in an opinion denying that the Second Amendment protects the right to bear arms for self-defense? That American citizens should trust the government to protect them because the alternative is civil war? One could hardly give a more succinct summary of Thomas Hobbes’s defense of absolute monarchy.

The Young majority seems to think that American citizens are properly viewed as subjects who can and must rely on a beneficent Leviathan. Coming shortly after the widespread failure of governments across the nation to protect their citizens from violent rioters, Young’s Hobbesian view of the social contract should make the friends of civil liberty and republican government gag.

The Ninth Circuit is now in direct conflict with two of its sister courts. The Seventh Circuit invalidated an Illinois law that categorically banned almost all citizens from carrying a loaded firearm in public. The D.C. Circuit invalidated a regulation that had virtually the same effect because it authorized carry licenses only in extremely narrow circumstances. Both governments chose not to appeal these decisions, probably in the hope that at least one Justice from the 5-4 Heller/McDonald majority would be replaced by a jurist more like those who prevailed in Young.

If the Supreme Court rewards that strategy by acquiescing in the elimination of the constitutional right to bear arms, we will have further proof of what Justice Samuel A. Alito has called “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” If that happens, let’s hope that the Justices at least spare us the kind of fake originalism favored by the Ninth Circuit. Secure in the knowledge that they are Supreme, they may as well just tell us what the rewritten Second Amendment says and be done with it.