Al Brophy has some thoughts about law office history, applied legal history, and implicitly, originalism.
I think applied legal history is a way of describing what a number of us are already doing — that is, it’s a way of talking about what has motived a number of legal histories of late and of also explaining what we are doing to our colleagues. First as to the description. I think applied legal history is scholarship that is inspired by contemporary issues or seeks to address some contemporary issue. It can be something very directly engaged in a current debate, such as the work on the meaning and context of the second amendment in the late eighteenth and early nineteenth century. Saul Cornell and David Konig are two scholars who have both done a lot of work that is directly engaged in a contempoary legal issue. Here I might observe that sometimes people refer to historical work that’s aimed at responding to an immediate legal issue as “law office history” — as in historical work performed in a law office for advocacy purposes. The phrase “law office” highlights that it is both advocacy-oriented and unlikely to be good history. What is very different about Cornell’s and Konig’s work on gun regulation is that it’s actually really good history. They ask questions that are not solely about advocacy; they put questions into context. That kind of work admits what contradicts the arguments the lawyers who use the scholarship are making. Another example of this is the work by Paul Halliday and G. Edward Whiteon the English law of habeas corpus in the eighteenth century and the suspension clause.
Does the fact that Cornell’s work contradicts arguments that lawyers arguing in favor of an individual right make Cornell’s work more likely to be accurate? For what it’s worth, plenty of lawyers (most prominently Justice Breyer) agree with Cornell’s work.