At Dorf on Law, Eric Segall: The Futility of Originalist Analysis in Second Amendment Cases. From the introduction:
In his dissent to the Supreme Court’s dismissal of New York State Rifle & Pistol Association v. City of New York on grounds of mootness, Justice Alito wrote the following about the merits of the case: “neither the City, the courts below, nor any of the many amici supporting the City have shown that municipalities during the founding era prevented gun owners from taking their guns outside city limits for practice.” After arguing that the plaintiffs should have won on originalist grounds, Alito then discussed the city’s justifications for its law (now repealed), finding that those purposes were constitutionally insufficient….
And from the core of the argument:
[O]riginalism is a particularly unhelpful way of analyzing Second Amendment issues (assuming for sake of argument the provision does protect an individual right to own guns). This disconnect is important given how important originalism (or at least originalist rhetoric) seems to be to Justices Gorsuch, Kavanaugh, and Thomas.
Take for example the issues raised by New York State Rifle & Pistol Association. The New York state law now in effect (the statute that mooted the case), according to the city’s lawyer at oral arguments, “allows gun owners with premises licenses to transport their guns to rifle ranges and second homes outside the city as long as the only stops they make along the way are ‘reasonably necessary.’” Justice Alito believed that this disclaimer was not enough to save the law’s constitutionality.
What is really at stake in this case is whether New York City (or the state of New York) may regulate the movement of handguns through the city’s crowded boroughs absent a certain set of conditions. There is little or nothing from the world of 1791 that can help us answer this question.
The most common form of originalism today is “public meaning originalism.” This method does not ask judges to inquire into the subjective intentions of the people living in 1791 (or 1868). Rather, judges should try to ascertain the original public meaning of the text. But even if this task could be accomplished with any certainty, the proposed answers would be unhelpful for two reasons. First, like all other constitutional rights, the right to “keep and bear arms” is not absolute and must be balanced against legitimate, strong, or compelling governmental concerns depending on the right at issue. There is nothing in the original public meaning of the Second Amendment that can help judges do that. Most Second Amendment cases today raise issues that the people living in 1791 did not anticipate in a context they could not have imagined. To say there is an objective public meaning of the text as applied to these new issues is nonsense. …
I think the last sentence quoted above does not follow from the one before it. Undoubtedly there are issues today that people living in 1791 did not anticipate. But that does not mean that there is no objective public meaning of the text that can be applied to those issues. Indeed, a central point of original public meaning (as opposed to original intent) is that it can be applied to resolve issues that its framers did not anticipate. And the way people in the founding era understood firearms regulations can help us understand the original public meaning of the Amendment, even though assuredly that meaning will then need to be applied to issues the founding generation did not foresee.
Posted at 6:35 AM