Smith on The Absence of Original Meaning in Second Amendment Cases

Michael L. Smith, University of Oklahoma College of Law, is publishing The Absence of Original Meaning in Second Amendment Cases in volume 45 of the Quinnipiac Law Review (forthcoming 2027). Here is the abstract.

In New York State Rifle and Pistol Association, Inc. v. Bruen, the Supreme Court set forth a two-step analysis for adjudicating Second Amendment challenges. At step one, courts are to consider whether the behavior the challenged law restricts falls under the Second Amendment’s plain text. If it does, courts should proceed to step two, where the burden is on the government to demonstrate that the law is consistent with a historical tradition of analogous firearm restrictions. Proving such a tradition is difficult, and results remain unpredictable. Governments and courts hoping to avoid such a historical quagmire might be inclined to decide cases at the first step of the analysis by concluding that a case involves individuals, activities, or arms beyond the Second Amendment’s plain text. One might think that the Court would be receptive to such arguments, as it has emphasized the importance of the original meaning of the Second Amendment’s text in its early cases. One would be wrong. The Court’s latest rulings in United States v. Hemani and Wolford v. Lopez render Bruen’s first step illusory. In Hemani, the Court bypassed the first step, concluding it had been conceded. More significantly, in Wolford, the Court relied on a prolonged hypothetical analysis of conduct the law at issue might burden, and limited consideration of historical evidence to the second step of the analysis where the burden is on the government to prove up a historical tradition that grounds the modern restriction. If such analysis is enough to overcome Bruen’s step one, just about anything will. This development demonstrates the Court’s unwillingness to engage with original public meaning—an approach that Justices and scholars frequently proclaim to be the dominant approach to constitutional interpretation. Instead, the Court’s textual analysis is limited to brief, permissive, and presentist accounts of the Second Amendment’s scope, with history reserved for applying, rather than interpreting, the Constitution. Governments and courts faced with Second Amendment challenges must therefore be prepared to slog through history in any case that may implicate an individual’s right to keep or bear arms.

Download the article from SSRN at the link.