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The Supreme Court’s Selective Memory

The Court’s striking down of a New York gun law relies on a fundamentally anti-democratic historical record that excludes women and people of color.

Originalists are always narrowing the pool of available historical corroboration. What counts? Five sources: The Constitution, James Madison’s notes on the constitutional convention, the records of the ratifying conventions, the Federalist Papers, and Samuel Johnson’s 1755 “Dictionary of the English Language.” That’s basically it. How about a volume titled, “Laws enacted in the third sitting of the eleventh General Assembly of the Commonwealth of Pennsylvania, which commenced at Philadelphia, on the fourth day of September, in the year of our Lord, one thousand seven hundred and eighty-seven”? That is, a book of laws passed at the very time and place the constitutional convention was meeting, Philadelphia, in September 1787, a book that includes this law: “whereas it hath been usual for merchants and traders . . . to keep large quantities of gun-powder in their dwelling houses and shops, to the manifest danger of the inhabitants; Be it therefore enacted . . . that that no person or persons whatsoever . . . shall . . . keep in any house, shop, cellar, store or other place . . . any more or greater quantity than twenty five pounds weight of gun-powder, which shall be kept in the highest story of the house, at any one time; unless it be at least fifty yards from any dwelling house.” That, of course, is a gun-safety law. If the government can limit how much gunpowder you keep in your house or shop, shouldn’t it be able to limit how many guns you keep there, too, or where you carry them? “When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy,” Thomas recommended. This one seems pretty straightforward.

The court’s opinion in Bruen suggests that you can’t beat originalism by following its growing number of strictures on what counts as historical evidence. There is no method to it, nothing but inconsistency and caprice. Robert Bork, one of the early architects of originalism, itself an invention of the nineteen-seventies, strenuously argued, in 1989, that the original intention of the Second Amendment was “to guarantee the right of states to form militia, not for individuals to bear arms.” Only later did originalists come to disagree with this position. And, as Bork also made clear, originalists don’t really care about chronology. “If someone found a letter from George Washington to Martha telling her what he meant by the power to lay taxes was not what other people meant,” Bork wrote in 1990, “that would not change our reading of the Constitution in the slightest.” If Washington didn’t say it at the constitutional convention, or if he said it but Madison didn’t write it down, it doesn’t count.