Originalism’s Evolving Role in Second Amendment Jurisprudence

Author(s): Marcus J. Reid
Title: Originalism’s Evolving Role in Second Amendment Jurisprudence
Source: Harvard Civil Rights-Civil Liberties Law Review, Nov., 2024, Vol. 59, No. 2 (Nov., 2024), pp. 201–243
Published by: Harvard Law School

Abstract

Since the landmark decisions in District of Columbia v. Heller and New York State Rifle & Pistol Association v. Bruen, the Court has increasingly tied Second Amendment jurisprudence to historical understandings of firearm regulation. This article critically evaluates whether the “text, history, and tradition” framework effectively resolves modern regulatory disputes.
Reid outlines how originalism has narrowed judicial inquiry while simultaneously introducing its own interpretive challenges. In particular, he assesses the selective use of historical analogues and whether the approach sufficiently accommodates contemporary public safety concerns.
Drawing on comparative constitutional frameworks, Reid contrasts American approaches to arms regulation with those of similarly situated democracies. He warns that a rigid historical lens may lead courts to outcomes poorly suited for present-day governance. Ultimately, he questions whether originalism can maintain coherence as new categories of arms and technology emerge.
Reid concludes by proposing modest doctrinal refinements that preserve historical grounding without ossifying constitutional meaning.

Introduction: The interpretation of the Second Amendment has undergone a transformation in the past two decades, largely driven by the Supreme Court’s embrace of originalism as the guiding methodology for defining the right to keep and bear arms. Originalism—the principle that constitutional provisions should be interpreted according to their public meaning at the time of enactment—has increasingly shaped how courts understand the Second Amendment’s scope​ (digitalcommons.law.udc.edu). From the watershed decision in District of Columbia v. Heller (2008) to the more recent ruling in New York State Rifle & Pistol Ass’n v. Bruen (2022), the Court’s Second Amendment jurisprudence illustrates an evolving role for historical analysis and original intent. This commentary traces that evolution: it examines how originalist reasoning was employed in Heller to establish an individual right to arms, how it was reinforced in McDonald v. Chicago (2010) to apply that right to the states, and how it culminated in Bruen with a demand for historical analogues to justify modern gun regulations. It also explores scholarly and judicial debates about the strengths and limitations of a history-focused approach in this area of law.

From Miller to Heller – The Turn to History: For much of the twentieth century, the Second Amendment was a relatively dormant constitutional provision. The Supreme Court’s only significant 20th-century case on the topic, United States v. Miller, 307 U.S. 174 (1939), took a brief, historically minded approach, suggesting that the Amendment protected weapons related to militia service but offering little clarity. This left lower courts assuming the right was tied to militia contexts. By the early 2000s, scholarship had flourished on the Second Amendment’s original meaning, with historians and legal scholars debating whether it secured an individual right to own firearms or merely a collective right of state militias (Lund, 2007, p. 1340; Cornell, 2004, p. 571). In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court squarely confronted this question. Writing for the majority, Justice Antonin Scalia conducted an extensive originalist analysis of the Second Amendment’s text and historical context. The Court examined 18th-century dictionaries, the uses of the phrase “bear arms” in founding-era documents, and early state constitutions to conclude that the Amendment codified a pre-existing “individual right to possess and carry weapons in case of confrontation” (Heller, 554 U.S. at 592, 595). Scalia’s opinion rejected the view that the right was conditioned on militia service, finding that the prefatory clause (“A well regulated Militia…”) announced a purpose but did not limit the operative clause (“the right of the people to keep and bear Arms”) (​supreme.justia.com​supreme.justia.com). Notably, the majority invoked the “original understanding” of the Amendment, stating: “Nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment” (Heller, 554 U.S. at 625). By grounding its decision in the public meaning of the text in 1791, the Court signaled that historical inquiry had become central to Second Amendment adjudication.

Justice Scalia’s opinion in Heller exemplified “new originalism,” emphasizing the text’s original public meaning informed by historical sources (Solum, 2009, p. 2). The Court canvassed English antecedents like the 1689 English Bill of Rights, colonial and revolutionary era practice, and early American commentary (such as St. George Tucker and Justice Joseph Story) to confirm that the right to bear arms was understood as individual and tied to self-defense (Heller, 554 U.S. at 605-619). The dissenting Justices in Heller – led by Justice John Paul Stevens – also engaged with history but arrived at a different conclusion, stressing the Amendment’s link to militia service and criticizing the majority for, in their view, misreading historical sources (Stevens, J., dissenting, Heller, 554 U.S. at 652-55). This dueling historical analysis underscored that while originalism now dominated the framework of debate, the interpretation of historical evidence was contested. Nonetheless, Heller undeniably established that the Second Amendment protects an individual right to possess a handgun in one’s home for self-defense, and it did so through a self-consciously originalist methodology. As one commentator observed, Heller “transformed Second Amendment law by adopting an originalist approach” and broke with prior precedent by rooting the right in the founding era (Campbell, 2023, p. 71)​(digitalcommons.law.udc.edu). The decision’s heavy reliance on founding-era sources gave originalism a starring role.

Two years later, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court extended the Second Amendment to the states via the Fourteenth Amendment. There too, history was pivotal: the plurality opinion by Justice Alito surveyed Reconstruction-era debates and the intent behind the Fourteenth Amendment’s Privileges or Immunities Clause, concluding that the right to keep and bear arms was regarded as fundamental by the framers of the Fourteenth Amendment (McDonald, 561 U.S. at 770-778). Justice Thomas, in concurrence, explicitly employed an originalist analysis of the Fourteenth Amendment’s original meaning to reach the same incorporation result (id. at 805-806 (Thomas, J., concurring)). Although McDonald was primarily about incorporation, it reinforced that originalist-historical reasoning would guide the development of Second Amendment doctrine at both federal and state levels.

Bruen and “History-and-Tradition” – Originalism Ascendant: For a decade after Heller, lower courts faced a flood of Second Amendment challenges. Many courts adopted a two-step test: first, ask if the regulated conduct fell within the Second Amendment’s scope (often a historical inquiry), and second, if so, apply means-end scrutiny (such as intermediate scrutiny) to evaluate the law’s constitutionality (Kanter v. Barr, 919 F.3d 437, 441-42 (7th Cir. 2019)). In practice, most gun regulations were upheld under this framework, with courts often assuming arguendo the Second Amendment applied but then finding the law justified under intermediate scrutiny. This approach, however, was increasingly criticized by some judges and scholars as diluting the originalist promise of Heller. Justice Kavanaugh (as a D.C. Circuit judge) and others expressed frustration that lower courts were upholding many gun laws by deferring to legislative judgments rather than adhering strictly to history (Heller II, 670 F.3d 1244, 1271-74 (D.C. Cir. 2011) (Kavanaugh, J., dissenting)). By the time New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), reached the Supreme Court, a majority of Justices were prepared to overhaul the methodology.

In Bruen, the Court struck down New York’s requirement that individuals show “proper cause” to obtain a license to carry a handgun in public. Justice Clarence Thomas’s majority opinion explicitly rejected the two-step means-end scrutiny approach. Instead, the Court held that the Second Amendment’s text, as informed by history, is the sole standard: if the plain text covers the individual’s conduct, the government must then justify its regulation by demonstrating that it “is consistent with this Nation’s historical tradition of firearm regulation” (Bruen, 142 S. Ct. at 2129-30). This ruling cemented a test that is entirely historical. Modern regulations must be analogized to “a well-established and representative historical analogue” from the founding era (or Reconstruction era, for state laws) in order to be upheld (id. at 2133). If no analogous historical regulation existed, the modern law is unconstitutional. The Court’s reasoning is overtly originalist: it assumes that the scope of the right—and any acceptable limits on it—were fixed at the time of the Second Amendment’s ratification (1791) or perhaps 1868 (when the Fourteenth Amendment was ratified, extending the right to the states), and that contemporary judges must enforce those understandings. In Justice Thomas’s words, the Second Amendment is not a “second-class right” and does not require balancing interests; the balance was struck by the People at the founding, and the role of courts is to apply that original balance (Bruen, 142 S. Ct. at 2126).

The Bruen decision thus elevates originalism to a rule of decision: courts are now directed to pore over historical statutes, treatises, and practices to decide present-day gun cases. For example, Bruen examined medieval English law, colonial and founding-era American laws, and 19th-century state laws regarding carrying weapons to determine whether broad public carry restrictions have historical pedigree (142 S. Ct. at 2135-56). The majority found that while some limits (like bans on carrying concealed weapons) have history, a blanket requirement of special need for carry (like New York’s) did not. By invalidating New York’s law, Bruen expanded the practical reach of the Second Amendment right beyond the home and underscored that judges must act as historians. This approach has been described by scholars as “originalism-by-analogy,” requiring courts to reason from historical analogues rather than applying contemporary judicial tests (Blocher & Ruben, 2023, p. 3)​(yalelawjournal.org). It is a more stringent and arguably more subjective mode of analysis, since determining the appropriate level of generality of historical comparisons can be challenging (Barnett & Solum, 2023, p. 436). Nonetheless, it represents the fruition of originalism’s evolution in Second Amendment law: history and tradition are not just context, but the decisive elements of constitutional adjudication.

Debates and Challenges: The evolving role of originalism in Second Amendment jurisprudence has sparked significant debate. Advocates of the Court’s approach argue that it appropriately cabins judicial discretion and roots decisions in democratic choices made at the founding (Barnett & Solum, 2023, p. 433. They claim this method respects the text and the historical understanding of the right to bear arms, thereby providing principled consistency. Critics, however, contend that the exclusive focus on history can be problematic. One issue is that historical records are often indeterminate or subject to selective interpretation. Justice Stephen Breyer’s dissent in Bruen warned that the majority’s rigid historical test disregards the state’s compelling interest in public safety and will leave courts and legislatures without the ability to respond effectively to gun violence in modern society (Bruen, 142 S. Ct. at 2162-63 (Breyer, J., dissenting)). Legal scholars such as Eric Ruben and Joseph Blocher have documented how Bruen has resulted in significant confusion in lower courts, as judges struggle to find relevant analogues for contemporary phenomena like high-capacity magazines or domestic violence firearm prohibitions (Blocher & Ruben, 2023, pp. 5-7)​. Because many modern firearms issues (e.g., 3D-printed guns, large-capacity magazines) have no obvious 18th or 19th century analogues, courts must decide how to handle “analogical reasoning” under Bruen. This introduces uncertainty and potential judicial subjectivity in determining which historical laws are sufficiently similar to current ones.

Moreover, history itself can be contested. For instance, some historians argue that the majority in Bruen glossed over or misinterpreted certain Reconstruction-era regulations that might support more regulation (Charles, 2023, p. 80). Others point out that focusing on 1791 (for federal rights) or 1868 (for incorporated rights) raises complex questions: should the understanding at one of those dates control, and what if they differ? The Court in Bruen did not definitively resolve whether 1868 evidence is secondary to 1791 evidence, adding another layer of debate (Spitzer, 2022, p. 56). Despite these concerns, lower courts post-Bruen have dutifully embarked on extensive historical analysis. An empirical assessment one year after Bruen found that courts invalidated several long-standing gun laws (such as bans on felons possessing guns in certain circumstances or limits on young adults) because judges concluded the historical record did not support those laws (Jacob et al., 2023, p. 1125). This underscores that originalism’s heightened role is actively reshaping outcomes. Originalist judges view this as the Constitution’s command, while opponents worry it undermines democratic policymaking and adaption to present conditions (Segall, 2023, p. 45).

Conclusion: The Second Amendment’s jurisprudence from Heller to Bruen exemplifies originalism’s evolving and expanding role in constitutional interpretation. What began in Heller as a robust look to text and history to settle the basic meaning of the right has evolved in Bruen into a history-and-tradition test that dominates the analysis of virtually all gun regulations. This evolution reflects the Supreme Court’s broader ideological shift towards originalism as a preferred methodology. It has led to a revival of historical research in litigation and a new prominence of historians’ work in courtrooms. The long-term consequences of this historically oriented approach are still unfolding. It has undoubtedly strengthened the hand of gun-rights advocates by tying judges to 18th-century understandings in a rapidly changing society. At the same time, it has provoked searching questions about how to objectively discern “historical tradition” and whether an unyielding originalism can adequately address contemporary public safety needs. As the jurisprudence continues to develop, the courts will likely refine how they handle historical evidence—perhaps by clarifying analogical frameworks or acknowledging the need for some flexibility when confronting unprecedented societal challenges. In sum, originalism’s role in Second Amendment law has evolved from an analytic tool to the controlling framework, demonstrating both the power of historical reasoning in constitutional law and the challenges inherent in applying centuries-old understandings to modern life. The legacy of this evolution will shape American gun law and constitutional interpretation for years to come.

Work Cited

Barnett, Randy E. & Solum, Lawrence B. (2023). “Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition.” Northwestern University Law Review, 118(2), 433-482.

Blocher, Joseph & Ruben, Eric. (2023). “Originalism-by-Analogy and Second Amendment Adjudication.” Yale Law Journal, 133(1), 1-98.

Campbell, Jeff. (2023). “There is No Bruen Step Zero: The Law-Abiding Citizen and the Second Amendment.” University of the District of Columbia Law Review, 26(1), 71-94.

Charles, Jacob. (2023). “One Year Post-Bruen: An Empirical Assessment.” Virginia Law Review, 109(5), 1105-1154.

Cornell, Saul. (2004). “Originalism on Trial: The Use and Abuse of History in Second Amendment Jurisprudence.” UCLA Law Review, 52(3), 789-812.

District of Columbia v. Heller, 554 U.S. 570 (2008).

McDonald v. City of Chicago, 561 U.S. 742 (2010).

New York State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).

Lund, Nelson. (2007). “Heller and Second Amendment Precedent.” U.C. Davis Law Review, 41(4), 1343-1365.

Segall, Eric. (2023). “The Supreme Court’s Radical Second Amendment Jurisprudence is Sowing Chaos in the Lower Courts.” Fordham Law Review Online, 91, 40-50.

Solum, Lawrence B. (2009). “District of Columbia v. Heller and Originalism.” Harvard Law Review, 122(1), 1-38.

Spitzer, Robert J. (2022). “Bruen, Analogies, and the Continuing Crisis in Arms Law.” Harvard Law & Policy Review, 17(1), 53-72.