According to Justice Thomas’s majority opinion in Bruen, only two steps are needed to identify the scope of constitutional rights: the Constitution’s text defines the presumptive reach of the right, and then accepted historical traditions are excluded. With respect to the Second Amendment, for instance, the text instructs that firearms restrictions are presumptively unconstitutional—after all, such rules inhibit the “keep[ing]” or “bear[ing]” of “arms”—and therefore, in Justice Thomas’s words, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Crucially, Bruen explicitly rejects any resort to a third step—using ends/means analysis to evaluate whether the government has a sufficiently compelling reason to restrict firearms.
On its face, this approach seems historical. What could be wrong with looking to text and history? But the Bruen opinion illustrates how approaching the past through a modern lens can lead to an anachronistic view of original meaning. In particular, each of Bruen’s three features—text, history, and nothing else—departs from how the Founders generally thought about fundamental rights.
Let’s start with Bruen’s central assumption about constitutional text. Today, it is axiomatic that constitutional rights are grounded in their enumeration. The Constitution, after all, just is the text, and the object of constitutional interpretation is to recover the meaning of that text. At the Founding, however, bills of rights were usually thought to be declaratory—referring to rights that existed apart from their enumeration and whose authority and definition were supplied by natural and customary law. For that reason, parsing the exact language of rights provisions was usually beside the point.
Bruen also goes awry in categorically rejecting ends/means scrutiny. At the Founding, rights were generally regulable in promotion of the public good, with the people collectively responsible for making decisions about what that standard entailed. The American Revolutionaries thus insisted that preserving their inalienable rights to liberty and property required representative government, not the elimination of law and taxes. To be sure, legislative acts did not promote the common good just because the legislature said so; legislative acts could be arbitrary or even corrupt. Notably, that assessment required examining both the ends and the means of legislation. But at least Bruen is right to assume that judges had little role in determining the common good. That was a quintessentially political task—one left to the people and their representatives.