The Second Amendment & Originalism

Second Amendment rights have emerged from often conflicting constitutional interpretations, but none has shaped its modern understanding more than the doctrine of Originalism. Professor Jake Charles from Pepperdine Law School explains that originalism continues to play a central role in shaping gun rights. The main point of originalism is that the Constitution means what it did when it was first written, and we should stick to that original meaning. When it comes to the Second Amendment, this means that our rights to own guns should reflect the thinking of the people back in the 1700s, providing a historical anchor for contemporary legal questions about guns.

The Supreme Court's application of originalism to key Second Amendment cases, notably District of Columbia v. Heller in 2008 and New York State Rifle & Pistol v. Bruen in 2022, demonstrates the ongoing relevance of this interpretive method. Professor Charles highlights that these decisions, particularly Heller, penned by the originalist Justice Antonin Scalia, have been pivotal in shaping the current legal landscape of gun rights. The Bruen decision's Text, History, and Tradition test is seen as a reinforcement of originalism and the practice of looking back to understand contemporary gun laws.

Despite its influential role, originalism is not without controversy. Critics point to the difficulty in accurately recovering the framers' intentions and question the justification for adhering to the perspectives of a group that does not reflect today's society. Supporters of originalism, however, argue for its intuitive nature and democratic legitimacy, suggesting that originalism helps prevent unelected judges from imposing modern policy preferences. As this debate continues, the dialogue between past and present remains at the heart of how we interpret the constitutional right to bear arms.

Additional Resources

This video was created in collaboration with the Duke Center for Firearms Law, dedicated to the development of firearms law as a scholarly field, through the development and support of reliable, original, and insightful scholarship, research, and programming on firearms law. 

Cases Discussed

  • Second Amendment to the U.S. Constitution – Right to Bear Arms – “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
  • District of Columbia v. Heller (2008) – landmark Supreme Court decision that held that the Second Amendment to the U.S. Constitution protects an individual's right to keep and bear arms—unconnected with service in a militia—for traditionally lawful purposes such as self-defense within the home.
  • NYSRPA v. Bruen (2022) – Supreme Court case which expanded Second Amendment rights outside of the home and established a new Second Amendment test. 
  • Text, History and Tradition Test – Established by the 2022 landmark decision, NYSRPA v. Bruen, the text, history, and tradition test now governs laws restricting the right to keep and bear arms – invalidating any gun laws that fail to meet its standard.

The Second Amendment & Originalism Brief Transcript

An Interview with Second Amendment Scholar Professor Jacob Charles 

Joel Cohen: Hello and welcome to Talks on Law. I'm Joel Cohen. Today, we're talking about originalism and how it relates to the Second Amendment. I'm joined today remotely by Professor Jake Charles of Pepperdine Law School, a Second Amendment expert. Professor Charles, welcome.

Professor Jacob Charles: Thanks for having me, Joel.

What is Originalism 

Joel Cohen: No, it's our pleasure. And why don't we start things off with: What is originalism?

Professor Jacob Charles: It's a good question. In general, what people mean when they talk about originalism is something that falls within a family of theories. These theories say we ought to interpret the Constitution by looking backwards, specifically to what someone in 1791 or 1787 — when the Constitution was written and when it was amended — would have thought the provisions meant at the time. Although there are different varieties of what we should look to — should it be the intentions of the framers or writers of the Constitution, should it be the understanding of the ratifiers, or the public meaning to individuals at large — all of these different theories of originalism, or at least most of those theories, take two kind of theses as their core. One is what's called the fixation thesis, and these theses were spelled out by an original scholar named Larry Solem. The fixation thesis says that the meaning of the Constitution, the meaning of provisions in the Constitution, is fixed at the time of ratification. So, whenever those were included in the Constitution, that fixed the meaning of the words. The second is the constraint thesis, and the constraint principle is that judges today, when they're applying constitutional provisions, ought to be bound by that original meaning, that fixed meaning. So, they shouldn't update the constitution based on modern values and modern preferences, but instead should defer to the original meanings by those who enacted the provisions at issue.

Joel Cohen: When you say "fixed at the time of the ratification," is that give or take a few years, or is it at the time of the ratification as a decade, right?

Professor Jacob Charles: Yeah, there's a variety of problems about how to recover that actual meaning, about when we should be looking to. Most originalists would say that there can be evidence from a few years, a few decades maybe even afterwards, that might help shed light on what was meant at the time. And most originalists would say that the meaning of words that were written and ratified is not changing dramatically within a couple of years. So, if we have evidence from, you know, the five to 10 years afterwards, that's pretty indicative of what the words would have been, would have been taken to mean at the time the provisions were put into the Constitution.

Applying Originalism to the Second Amendment

Joel Cohen: Well, that's originalism. And how does it relate to gun rights, specifically the Second Amendment?

Professor Jacob Charles: It relates because the Second Amendment is one of the few constitutional provisions that has, since the Supreme Court first started getting involved in the area, been pretty consciously interpreted with an originalist eye. So, it wasn't until 2008 in District of Columbia v. Heller that the Supreme Court first gave a conclusive interpretation of the Second Amendment, and that decision has been hailed as one of the most self-consciously originalist opinions by the Supreme Court. It was written by Justice Antonin Scalia, who was himself a self-professed originalist, and the opinion is written in such a way that the court purports to be trying to recover what the Constitution would have meant, what the Second Amendment in particular would have meant to those in 1791 who ratified the Constitution. And even continuing with the Supreme Court's most recent Second Amendment case, New York State Rifle and Pistol v. Bruen, just last summer in 2022, the court there was doing something that it would probably describe as originalist. It said it was looking to a historical tradition and history to determine what the founding generation would have understood the Constitution to mean, in that case with respect to publicly carrying guns, whereas Heller was about carrying guns in the home. But both decisions were appealing to history and self-consciously saying that there was some meaning that was fixed at some point in time previously that we, today as judges, have to defer to.

Joel Cohen: Yeah, and Bruen, would you say that the test they created, the text, history, and tradition test, is that in some ways enshrining originalism in how gun laws have to be evaluated?

Professor Jacob Charles: I think that's right. I think at least that's what Justice Thomas, who wrote the opinion in Bruen, would say about it. There has been a lively debate since the decision among both originalists and non-originalists about how originalist the opinion and how originalist the actual test is. As you say, the test looks to text, history, and tradition. Certainly, the text can be interpreted as an originalist by what was meant at the time. History certainly is part of an originalist inquiry. Tradition, however, is a little bit different than an appeal to straight originalism. So, there are some distinctions between a traditionalist form of interpretation and an originalist form of interpretation. For an originalist, anything that contradicts what the meaning would have been at the time the provision was ratified can't shed light, can't overcome the original meaning. That assumes, of course, that we can decipher and discover that original meaning. But for a traditionalist, there can be later practices that shed light on the meaning of the Constitution. In other words, it's not fixed at the time of 1791; it can be elucidated, it can be what some scholars call liquidated, throughout traditions, throughout the discovery of traditions of the American people and their practices. And Justice Thomas, in the Bruen decision, when he announces that new test, seems to suggest that traditions and practices of the American people can also shed light on the meaning of the Second Amendment, in other words, that it's not totally fixed by whatever happened in 1791.

Arguments for and Against an Originalist Interpretation of the 2nd Amendment

Joel Cohen: Before we let you go, maybe we could get your thoughts on the relative strengths and weaknesses of using originalism with regard to the Second Amendment.

Professor Jacob Charles: Yeah, so there is a longstanding interpretive debate between those who adhere to an originalist theory of interpretation and those who dismiss it or those who adopt more plural theories of constitutional interpretation. There have been many critiques of originalism. Some of those say that originalism faces problems both of recovery and of justification. So, the problems of recovery say it's really hard to understand what the original meaning of provisions would have been 250 years ago, that we cannot get into the minds of the founders or the framers or the ratifying generation, that they had totally different beliefs, that we don't inhabit the same moral or normative universe, and oftentimes we don't inhabit the same factual universe. That they held false factual beliefs about many things, including the earth and the status of women and enslaved people. And yet, even if those obstacles can be overcome, even if we can decipher original meaning, even if there is such a thing as one original meaning, there are still problems of justification. So, if we get past the hurdles of recovery, there are some who say that originalism is flawed because it requires us to give deference to those who drafted and ratified the Constitution, who were exclusively white men, and many of whom were slaveholders themselves. And who, as I mentioned, held beliefs that we no longer think are tenable, who held beliefs about who should have power and who shouldn't have power, that are no longer consistent with American values and American morals. And so, there's the question of whether or not, even if we can recover that, we should still be deferring to that today. On the other hand, you said there are some strengths of an originalist interpretive framework, and some of those are that it's fairly intuitive that, if you have a written constitution, in the same way that you might try to figure out what somebody meant when they wrote you a letter. If you found a letter, you would appeal to what that person thought words were doing. You might look up a dictionary from the time if you found an old letter and think about what those words would have meant to the person that was writing the letter. Many people use this analogy when they talk about the Constitution. So, there is the intuitive appeal that these words were written at a certain time in the past, and we have to know what those words meant at that time to know what meaning was conveyed. There is also the notion that deferring to the past, deferring to the original public meaning, actually lends democratic credence to the Constitution because it is, at least theoretically, taking power away from judges today to impose their own policy preferences, and saying the people that ratified the Constitution, that was a democratic act. Judges, federal judges, are unelected and unaccountable, and so if there should be constitutional change, it should come from the popular branches, or it should come from the people themselves, and not from judges that are updating the constitution based on their policy preferences.

Joel Cohen: Well, we'll let the viewers weigh those pros and cons, but Professor Charles, thank you for your time today and for the insights.

Professor Jacob Charles: Thank you.