Robert Leider has a very exciting paper up on ssrn, "Our Non-Originalist Right to Bear Arms: How Public Opinion Has Shaped the Second Amendment." Cribbing now from his abstract:
District of Columbia v. Heller was a landmark, if controversial, opinion. Discussion has centered on the merits of its self-described originalist approach. Supporters praise its efforts to return to a more originalist and textualist approach to constitutional questions, whereas critics challenge the accuracy of Heller’s historical claims and criticize its departure from precedent.
This paper challenges much of the conventional wisdom about Heller, its use of originalism, and its relationship to nineteenth and twentieth century case law. This article argues that, despite much of its rhetoric, Heller actually exemplified popular constitutionalism — not originalism — in the way it approached the most important practical question at issue in the case: determining the content of the right to bear arms. On that question, Heller — and not Miller — is largely consistent with the way, throughout most of American history, that both state and federal courts have adjudicated cases involving the right to bear arms. In particular, this article argues that the dominant approach followed by nineteenth-century courts was neither “originalist” nor “textualist” about the right to bear arms. These courts did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment. Instead, they attempted to find compromise positions on the scope of the right to bear arms to accommodate a population divided between those believing in the right and those seeking stronger restrictions on weapons. To do this, the nineteenth-century courts shifted their understanding of the purpose of the right to bear arms over time, which, in turn, enabled them to reach conclusions about the content of the right that reflected the contemporary popular understanding of the right — and of the right’s limits. In this revisionist account, Miller is the case that represented a break with the courts’ historical approach because it arguably allowed access to common military weapons — an approach that did not readily allow courts to adjust the Second Amendment right to new circumstances as these military weapons became increasingly destructive. These difficulties prompted subsequent courts to adopt the “collective rights” interpretation of Miller — an interpretation that was too rigidly restrictive, and therefore, also difficult to adjust to reflect popular understandings. The paper concludes that Heller reflects a new compromise: expanding the individual self-defense rationale while diminishing the Second Amendment’s military objectives. This new compromise recognizes an individual right to have self-defense weapons, while allowing greater control over military-style weapons — which aligns with how mainstream Americans today view the right. Although Heller radically reshaped the Second Amendment right to fit the twenty-first century popular understanding of the right, its methodological approach is quite consistent with how most courts have approached Second Amendment questions — an approach that sounds more in popular constitutionalism than originalism.
It will surprise no one that I'm super interested in talk of pre-Civil War constitutional thought, particularly in the educated public. A couple of quick thoughts on this -- first, Leider's finding that court and public opinion moved together (and generally in the same direction) is important, if unsurprising. I think one of the important tasks for legal historians is to map how courts and the public interact. Second, I'm not surprised that originalism was not a key part of the court opinions, because originalism was a pretty small part of pre-War constitutional thought. Those who made arguments in public about the Constitution much more frequently appealed to general principles of the constitution than to what the framers thought. A great way of illustrating this is that during the Civil War when southern state supreme courts were intrepreting the Confederate Constitution (which was based largely on the United States Constitution), they turned to all sorts of interpretive modes. In fact, sometimes they were really explicit in how they should break free from the past in terms of political theory (and constitutionalism seems to be a part of this as well). For instance, James Bruce said in a graduation address here at UNC in 1841:
It is high time that the South was giving up its old prejudices and antiquated modes of thinking—that it was breaking the ties which unite it to a departed age, and bind together the living and the dead. Our ancestors used the lights of their age, why should we reject the brighter ones of our own? They ran ahead of their times, why should we lag behind ours? They were dissatisfied with their condition, and improved it, let us do likewise; they were wise in their generation, let us be wise in ours.
That's a great insight into the mindset of antebellum legal thinkers -- they were interpreting the Constitution in light of the wisdom of the founding generation and what they had learned since then. Ah, I love applied legal history!
The image is of the Confederate Statue in Boydton, Virginia (the county seat of Mecklenberg County.) I was looking for a statue with a gun from the pre-Civil War era; this is the closest I was able to find this evening. I don't think any of the statues on the Washington Equine Statue in Richmond are holding guns, which is too bad since that would have fit perfectly the theme of this post.