Key Takeaways
- Originalism holds that the Constitution's meaning was fixed when it was adopted and that judges should be bound by that original meaning.
- Heller was a self-consciously originalist decision, and Bruen's text, history, and tradition test continues that approach, though its reliance on tradition lets later practice shed light on meaning.
- Critics question whether original meaning can be recovered and why today's judges should defer to the founding generation, while supporters stress the method's intuitive appeal and the limits it places on unelected judges.
Should the Second Amendment mean today exactly what it meant in 1791? That question sits at the center of modern gun rights law, and the answer turns on a theory of interpretation called originalism.
In this TalksOnLaw Brief, Jake Charles, Associate Professor of Law at Pepperdine Caruso School of Law and a Second Amendment scholar, explains what originalism is, how the Supreme Court has used it in its major gun cases, and the strongest arguments on each side of the debate.
What Is Originalism?
Professor Charles describes originalism as a family of theories holding that we should interpret the Constitution by asking what its provisions meant to people when they were written in 1787 or added in 1791. Originalists differ over whether to look to the framers' intentions, the ratifiers' understanding, or the public's understanding, but they share two ideas: a fixation thesis, that the meaning of the words was fixed at ratification, and a constraint principle, that judges should be bound by that meaning rather than updating it to reflect modern values and preferences. Most originalists accept evidence from a few years or decades afterward, since word meanings change slowly.
Heller, Bruen, and Tradition
The Second Amendment, he explains, is unusual because the Supreme Court's first conclusive interpretation of it, District of Columbia v. Heller (2008), has been hailed as one of the Court's most self-consciously originalist opinions. Justice Antonin Scalia, a self-professed originalist, wrote it as an effort to recover what the amendment meant to those who ratified it. New York State Rifle & Pistol Association v. Bruen (2022), written by Justice Clarence Thomas and addressing public carry rather than guns in the home, also appealed to history. Professor Charles notes a lively debate over how originalist Bruen's test of text, history, and tradition really is. For an originalist, nothing later can override original meaning. For a traditionalist, later practices can shed light on meaning, or "liquidate" it, and Bruen seems to allow that.
Strengths and Weaknesses
Critics raise problems of recovery and justification. It is hard to know what provisions meant 250 years ago to a generation with different moral and factual beliefs, and even if we can, it is not obvious why we should defer to drafters and ratifiers who were exclusively white men, many of them slaveholders. Supporters respond that it is intuitive to read a written text the way one reads an old letter, by asking what its words meant when written, and that deferring to the ratifiers' democratic act keeps unelected, unaccountable federal judges from imposing their own policy preferences.
What to Know Now
The debate Professor Charles describes has only intensified. In United States v. Rahimi (2024), the Court upheld the federal ban on gun possession by people under domestic violence restraining orders and explained that the historical inquiry asks whether a modern law is consistent with the principles underlying the nation's regulatory tradition, not whether it has a "historical twin." Several justices wrote separately about the use of history. In 2026, the Court applied that framework in United States v. Hemani, holding that the federal ban on gun possession by drug users could not be applied to a marijuana user not shown to be dangerous, and in Wolford v. Lopez, striking down a Hawaii carry restriction while again reserving whether 1791 or 1868 is the key date. The Court has also agreed to decide whether AR-15-style rifles are protected. Supporters see history as a source of discipline, while critics argue the method remains hard for lower courts to apply consistently.
