I have written about the folly of Originalism on this blog before, specifically as it applies to Bruen. Bruen is a powerful case for Second Amendment rights and constitutional rights in general, but its decision is crafted by a flawed legal interpretative theory pushed by Antonin Scalia and his two acolytes on the Court—Clarence Thomas and Samuel Alito. Their mantra of “history and tradition” crafted a rule in Bruen is that is good for knife owners, but highly susceptible to attack. Fundamentally, this flaw arises out of the fact that Supreme Court justices are bad historians but too arrogant to ever admit as much.

Originalism’s Bad Foundation

The story of how that flaw was found is told here on an episode of the great podcast 99% Invisible. The premise of the podcast, or at least the introductory segue, is that an anti-2A group, Moms Demand Action, has sent out volunteers to find evidence that Thomas’s claim that there were no concealed carry laws prior to the 1900s was factually wrong. This curious claim is central to Bruen as it illustrates Thomas’s point—there is no historical tradition limiting concealed carry and thus laws limiting concealed carry run afoul of the Second Amendment test articulated in Bruen. But, as it turns out, Thomas’s work as a historian was bad. Not only is there one law, there are a bevy of them. His factual assertions are wrong and without them, the foundation for his legal theory and the test for the Second Amendment are unmoored from reality. Unsurprising to me Originalism involves just as much activism as the theories it critiques, but instead of judges being activist by rewriting laws, in Originalism justices are activists by rewriting history.

Conservative judges railed for years about liberal activist judges “finding” rights. The ideological critique of Roe stems from this very claim. Roe was premised on a right to privacy which previous cases claimed arose from the “penumbra” of rights listed in the Bill of Rights. The argument went something like this—we have a right to freedom of expression and a right to assembly and a right to be free from unreasonable searches and seizures and a right to be free from self-incrimination and so, we should, they reasoned also have a right to privacy. These explicit rights all shared a feature that pointed to the existence of a right to privacy. And so, on this logically craptacular foundation, 40 years of reproductive rights were generated. Then, with one swift stroke, the entire federal reproductive rights structure was destroyed. Originalism said there was no history or tradition of a right to privacy and there was nothing explicit in the text about a right to privacy and so the tower fell.

The lesson here is clear—legal interpretation needs to be more robust. Yet, Originalism, with this emphasis on history and tradition has the same flaw that Contextualism did, albeit with a different focus. As I wrote above, judges instead of being amateur legislators are now amateur historians. But, but, but…the Originalists claim—there is a single empirical record about history and tradition. Sure, if you have an elementary school conception of history. The reality is history is a series of strands—multiple histories and mutliple traditions. Originalism denies this, but what it is actually doing is allowing a judge to elevate his or her preferred history or tradition over others to justify a legal holding. And when the facts that undergird that prioritization are proven false, the legitimacy of the legal principle has an expiration date.

Tit for Tat

This leads to a more systemic question: Are we doomed to repeat an endless cycle where a conservative court blows up progressive case law and a progressive court blows up conservative case law, each finding the same flaw in the other’s argument, generation after generation?

The Court has been locked in intellectual death spirals before. The worst was the Court’s race-based thinking that began in the 19th Century and lasted well over 100 years. As the country was barreling towards the Civil War, the Court was vexed by cases regarding the rights of blacks and, specifically, runaway slaves. Specifically, the racist foundations of American law came before the court in 1857 in Dred Scott. Stymied by the tension between “all men are created equal” and Article 1, Section 2 (which established that slaves were worth 3/5 what a free person was for purposes of determining representation in the House), the Court issued ruling after ruling that were intellectual garbage (Dred Scott, Plessy v. Ferguson, Korematsu v. United States), attempting to find a middle path between equality and institutional racism. The echoes of this institutional racism were carried on well beyond slavery’s extinction—Korematsu authorized the internment of Americans of Japanese ancestry based solely on race-based fears stoked by World War II. This race-based reasoning was not officially overruled until Trump v. Hawaii in 2018. That intellectual problem died of old age, abandoned but not overruled for a long time.

The problem with Originalist analysis is that the Supreme Court acts like they are the first to engage in interpretation—ignoring, ironically, a history and tradition of religious and scholastic thought on theories of interpretation that have been worked on, revised, promulgated, and…subject to interpretation for millennia. “Talmudic” has two meanings, one that is explicitly religious and the other that has to do with complex theories of interpretation of anything. In short, the Supreme Court needs to take a class in hermenuetics (may I suggest the textbook: Hans Georg Gadamer’s Truth and Method).

A Possible Solution

One approach that might work is to reengage with an older tradition of writing called polemics. Pascal’s Wager was written as part of a polemic—that is, it assumed a premise (the existence of God) and reasoned therefrom. The key with polemical writing is that you are writing in support of a partisan position—Catholic v. Protestant, atheist v. believer being the most common.

Using a polemics approach to law might work. The idea would be to write an opinion with a conclusion that could be justified from either interpretive approach—either Contextualist or Originalist. This, of course, requires justices to admit that they have A theory of interpretation and not THE theory of interpretation. Hubris may prevent this. But the effort might be worth it. To prove this possible I want to sketch out a Contextualist approach to Bruen’s holding.

A Contextualist Justification for Bruen

In Heller, the Court talked about the idea of self-defense. They noted that it was not just a constitutional right, but higher than that—it was an outgrowth of nature itself (appealing to an even older theory of interpretation and jurisprudence that had to do with natural rights given to man from God). This appears to be true. Every legal code since the Hamurabi Code has had some form of a right to self-defense. Every state allows someone to act in self-defense as a justification for criminal behavior. The federal criminal code and the UCMJ do as well. The common law across the country is replete with cases involving self-defense. Few rights are more engrained in case law, than the right to self-defense.

But case law also shows that some rights require “helpers.” One’s right to be free from self-incrimination doesn’t really work if you don’t know you have such a right. Based on this the US Supreme Court ruled in Miranda v. Arizona, that people had to be told of their right to be free from self-incrimination before talking with authorities in certain, limited circumstances. The Court realized a practical concern with the right to be free from self-incrimination—most people aren’t lawyers or constitutional scholars and so in the face of overwhelming state power, they may think, entirely wrongly, that they have to help the police by talking even if such talking incriminates them. Without being told they don’t have to talk, the right to be free from self-incrimination is pretty meaningless. So one’s right to Miranda warnings serves as a “helper” right to the right to be free from self-incrimination.

Similarly, the right to self-defense needs to have a helper right. If you have no means to defend yourself, the right, like the right to be free from self-incrimination, is meaningless. A right to carry a constitutionally protected weapon would be such a “helper” right. This idea of rights with helper rights exists elsewhere. In First Amendment cases courts speak about limiting laws because they could potentially chill First Amendment expression. That is, even if a law doesn’t necessarily impact one’s freedom of expression, it is so threatening to the right that it must be struck down. Over and over again in constitutional law cases, we see scenarios were the Court has to create space to allow a right to be effectively exercised. Here, the right to carry, with only a few reasonable limitations from the government, is a right that creates space for people to defend themselves.

In that regard, without reference to history or tradition, we can see a case law-based justification for protecting forms of carry. Even if there were laws that limited the right to carry when the Second Amendment was passed, more than 200 years of experience have taught us that not all rights are self-activating or self-sustaining, so having corollary rights that help those more foundational rights flourish is fine. No matter how many examples are found that show Thomas’s work as a historian was lacking, there is a strong precedential analogy to other constitutional rights that undergirds the right to carry. Contextualists, then, can easily find justification for Bruen’s holding, even when, if we are being fair, Originalists and their emphasis on history and tradition fail pretty miserably.

Conclusion

This is a way forward on a highly divided court with serious credibility problems and a half dozen or so ethical scandals (which, ironically enough effect only the Originalists on the Court; perhaps the hubris necessary to claim you “found” the one right version of history is equal to the hubris necessary to believe that you are above the law). Good legal reasoning and prudent holdings aren’t the exclusive domain of Originalists, even if they are ascendent on the Court right now because of numbers and norm-breaking tactics used to stack the Court. Cases should be decided on principles that can withstand the winds of politics changing every election or two. Right now, the Originalists are not crafting such opinions and failing to do so endangers Bruen in the same way that the sloppy logic of Roe endagered it from the outset.