Allen Rostron writes about an originalist error Judge Sykes made in Ezell v. Chicago:
Buried in the Seventh Circuit opinion, however, was an important but questionable assertion about originalism and incorporation of the right to keep and bear arms. The opinion, authored by Judge Diane Sykes, observed that Heller requires an originalist approach to interpreting the Second Amendment. In other words, when deciding whether a federal law violates the Second Amendment, judges should be asking what the right to keep and bear arms meant at the time when the Bill of Rights was proposed, debated, and ratified. So far, so good. But Judge Sykes went on to suggest that when considering whether a state or local government action violates the right to keep and bear arms, as incorporated into the Fourteenth Amendment, the analysis must be “carried forward in time” to the period when that Amendment was added to the Constitution.
That sounds perfectly sensible. Justice Scalia’s opinion in Heller obviously endorsed quite strenuously the notion that courts should strive to determine a constitutional provision’s original meaning. If one accepts that premise, then interpretation of the Second Amendment should be based on what the founding generation thought about gun rights, and interpretation of the Fourteenth Amendment’s incorporated right to keep and bear arms should be based on the understandings that prevailed eight decades later. As Judge Sykes put it, we must look “at the relevant historical moment – 1791 or 1868.”
The problem is that this disregards one of the key elements of what the Supreme Court decided about incorporation in McDonald. The Court declared that every incorporated right, including the right to keep and bear arms, must mean exactly the same thing as applied to state and local governments through the Fourteenth Amendment as it means when applied to the federal government through the Bill of Rights. The majority of the Court in older cases like Malloy v. Hogan (1964) and Duncan v. Louisiana (1968) had taken that same “jot-for-jot” or “one-size-fits-all” approach to incorporation. But until McDonald, some uncertainty lingered about whether incorporation always must operate in that way, or whether courts instead have the flexibility to tailor a right so that it is stronger (or weaker) or broader (or narrower) when applied to state and local governments via incorporation. The majority in McDonald eliminated that uncertainty, insisting that the strength and scope of every incorporated right must be exactly the same within the Fourteenth Amendment as within the Bill of Rights.
The Seventh Circuit therefore cannot be correct in advising that judges should look to 1791 when considering a Second Amendment challenge to a federal law but should focus on 1868 in cases concerning state or local laws. The Supreme Court’s decision in McDonald clearly ruled out such a two-track approach. Even if the meaning of the right to keep and bear arms in 1868 remained very close to what it was in 1791, this is a matter on which close is not good enough. McDonald demands that the right, in every contour and dimension, must be exactly the same regardless of whether the Second Amendment applies directly or through incorporation.
This is largely a point I made in Originalism at the Right Time?