During en banc oral arguments in Nordyke v. King, Judge Kozinski asked Don Kilmer a line of questions about the proper time frame for Second Amendment inquiries. Specifically, he asks why the focus should be on the late 19th century, rather than over the last 50 years. This is the different between semantic or retrospective originalism (laste 19th century) and guidepost originalism (last 50 years).
Turn to 13:34. Here is my best effort at transcription:
History is a long time. History goes from Adam to today. You want to focus on the passage of the 2nd Amendment which puts us somewhere in the late 18th century. Why isn’t the history what happened in last 50 years? Why isn’t the history in last 100 years? When many of these weapons we are talking about today have been developed. Were there flintlocks when the Second Amendment was ratified. We didn’t have Gatling guns. We didn’t have semi-automatic or automatic weapons. So why is the history at that time what matters? Why don’t we look at history of last 50 or 100 years? Wow, when it comes to regulating sale of guns we have been uniform in society and quite strict about regulating the sale of weapons?
Don replies and says you should look to lineal descendant of guns.
This is Originalism at the Right TIme. Kozinski should have hit Kilmer with an argument about McDonald, and that the appropriate frame of inquiry would be 1868, not 1791.
Also there is some good stuff around 19:00 about Judge Kavanaugh’s rejection of balancing tests (and all forms of scrutiny for that matter) in Heller v. DC II.
Kozinski asks him to explore that more around 20:00, noting he is a fan of Kavanaugh.