Professor Alison LaCroix has an interesting blog post at SCOTUSBlog about the proper interpretive baselines. She asks “when is the relevant ‘original’ moment for the justices?
The second point concerns the Court’s shifting interpretive baseline. Just when is the relevant “original” moment for the justices? At least three possible moments suggest themselves as possibilities: (1) the Constitutional Convention; (2) the congressional debates over the Civil Rights Act of 1866 and the Fourteenth Amendment in 1868; or (3) the Court’s own twentieth-century cases dealing with incorporation of the Bill of Rights against the states.
This is very much the same question Ilya and I posed in Pandora’s Box. We counseled the Court to consider Originalism at the Right Time.
Interpreting the Second Amendment based on how people understood its text in any year other than 1791—the year of its ratification—would be similarly unhelpful. The Supreme Court faithfully executed this strategy in Heller. But what about the Interpreting theSecond Amendment based on how people understood its text in any year other than 1791—the year of its ratification—would be similarly unhelpful. TheSupreme Court faithfully executed this strategy in Heller. But what about the right to keep and bear arms as applied to the states? Federal protection against state encroachments on individual liberty began with the ratification of the Fourteenth Amendment. 1868 is thus the proper temporal location for applying a whole host of rights to the states, including the right that had earlier been codified as the Second Amendment as applied against the federal government. 259 Interpreting the right to keep and bear arms as instantiated by the Fourteenth Amendment—based on the original public meaning in 1791—thus yields an inaccurate analysis. The respondents make this mistake in their McDonald brief, however, recounting the history of the Second Amendment in 1791 as dispositive of the meaning of the right to keep and bear arms in 1868.260
To answer Professor La Croix’s question, the proper baseline should be 1868, not the revolution or the 20th century.
Analyzing the meaning of the right to keep and bear arms in 1791 was proper inHeller, because the Second Amendment in that case only applied to the federalgovernment. In McDonald, however, the key year is 1868, and the Court shouldlook at evidence from the time of Reconstruction, not the time of the Revolu-tion. To the extent that the common-law right of self defense existed from time immemorial, through the Revolutionary era, earlier evidence is relevant only to the extent it affected mid-nineteenth-century understandings. To put it another way, McDonald asks not so much whether the Second Amendment applies to the states, but whether the right to keep and bear arms—independent of its codification in the Bill of Rights and as understood in 1868—is protected against state infringement by the Fourteenth Amendment.
Professor La Croix notes that the Court fails to consider the Reconstruction era cases that discuss this issue–Cruikshank, Presser, and Miller–simply noting that these cases “all preceded the era in which the Court began the process of ‘selective incorporation,’”
But this neat conclusion conceals an important circularity. The opinion offers no account of how this nonoriginalist interpretation with respect to incorporation (tossing out this trio of major cases) can be reconciled with the overall commitment to originalism (valorizing the congressional debates). Moreover, Cruikshank and Presser were decided in 1876 and 1886, respectively, putting them roughly in moment (2): the Reconstruction period. Yet the Court rejects the possibility that the cases might offer any insight on the question before it, even as it seizes on congressional debates from no more than a decade before as objective evidence of late-nineteenth-century original meaning.
Professor La Croix is correct to note that the Court did not give these precedents the proper consideration. But the Court’s biggest failure was to disturb the one precedent that really mattered–The Slaughter-House cases. If the Court had the temerity, fortitude, and principle to reverse this precedent that nearly everyone agrees was wrongly decided, the Court could have grounded the incorporation of the 2nd amendment in a truly originalist jurisprudence–the Privileges or Immunities Clause. This is precisely what Justice Thomas did. Thomas did not have to engage in such “circularity.”
Instead, the Court took a logically faulty route to achieve this result, by selectively reading the precedents and late 19th century debates. By abstaining from the original meaning of the Privileges or Immunities Clause, the “originalist” Court became selective originalists.