Notre Dame Law Review

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Frederick Schauer* & Barbara A. Spellman**

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court acknowledged the difficulties in applying its constitutional originalism to the question of firearms regulation.[1]  After all, the fully automatic assault rifles whose sale, possession, and use lie at the center of many contemporary debates about gun control and the Second Amendment simply did not exist in 1791, when the Second Amendment was ratified.  Nor did they exist in 1868, when the Fourteenth Amendment, the vehicle for applying the Second Amendment to the states, was added to the Constitution.[2]  The firearms that existed in 1791 were largely the heavy, slow, cumbersome, and wildly inaccurate single-shot muskets that made up the arsenals on both sides in the Revolutionary War.  And the “arms” envisaged in 1868 would have been predominantly the flintlock muzzle-loading long rifles of the Civil War.  Even the Colt revolvers of the so-called Wild West were still at the time of the ratification of the Fourteenth Amendment using black powder (as opposed to modern gunpowder)—weapons that were almost unimaginably slower and less accurate than today’s handguns and automatic or even semiautomatic rifles.

The Bruen Court recognized the chasm between the arms that existed at the time of the original document and those whose regulation are at issue now.  And it recognized an equally large chasm between the regulatory approaches to those arms in earlier times and the regulatory approaches being proposed and considered today.  Yet the Bruen 6–3 majority, with its opinion written by Justice Thomas,[3] was nevertheless committed to an originalist methodology.[4]  Acknowledging the difficulty of applying an originalist approach across such a long temporal gap, Justice Thomas’s opinion in Bruen relied on the simultaneously empowering yet constraining notion of “reasoning by analogy.”[5]  The judicial task, Justice Thomas offered, was to identify “not a historical twin” but a “well-established and representative historical analogue.”[6]

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© 2024 Frederick Schauer & Barbara A. Spellman.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*David and Mary Harrison Distinguished Professor of Law, University of Virginia.

**Professor of Law and Professor of Psychology, University of Virginia.

This Essay was prepared for the Notre Dame Law Review’s Symposium on History, Tradition, and Analogical Reasoning.  We are grateful to the Notre Dame Law Review and the Duke Center for Firearms Law for conceiving, organizing, and administering what turned out to be a highly stimulating intellectual event.

[1]See 142 S. Ct. 2111, 2134 (2022) (quoting Heller v. District of Columbia, 670 F.3d 1244, 1275 (D.C. Cir. 2011) (Kavanaugh, J., dissenting)).

[2]McDonald v. City of Chicago, 561 U.S. 742, 805–06 (2010).  On the theoretically interesting issue (at least for originalists) of identifying the relevant “original” date for the incorporated provisions of the Bill of Rights, the Bruen Court noted the issue but found no reason to resolve it, concluding that there was no relevant difference on these facts between the practice in 1791 and the practice in 1868.  Bruen, 142 S. Ct. at 2138.  And so too for Justice Barrett, concurring.  Id. at 2163 (Barrett, J., concurring).  See generally Jay S. Bybee, The Congruent Constitution (Part One): Incorporation, 48 BYU L. Rev. 1, 52 (2022); Lawrence B. Solum, Incorporation and Originalist Theory, 18 J. Contemp. Legal Issues 409, 435–46 (2009).

[3]Justice Breyer, joined by Justices Sotomayor and Kagan, issued a dissenting opinion.  142 S. Ct. at 2163 (Breyer, J., dissenting).  Justices Alito, Kavanaugh, and Barrett each filed a concurring opinion, although all joined the opinion of the Court as well.  Id. at 2156 (Alito, J., concurring); id. at 2161 (Kavanaugh, J., concurring); id. at 2162 (Barrett, J., concurring).

[4]The problems we address here exist under the now-ascendant “original public meaning” version of originalism as well as under the formerly dominant “original intent” originalism; thus, there is no need for us to choose between the two here.  See generally Ilan Wurman, A Debt Against the Living: An Introduction to Originalism (2017); Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B.U. L. Rev. 1953 (2021); Randy E. Barnett & Lawrence B. Solum, Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev. 433 (2023).

[5]Bruen, 142 S. Ct. at 2132.

[6]Id. at 2133.