Diverse Originalism, History & Tradition

Christina Mulligan*

The Supreme Court’s New York State Rifle & Pistol Ass’n v. Bruen decision appears to be an originalist opinion, ostensibly looking for the meaning of the Constitution’s text by looking to the public’s understanding of the language used. But Bruen‘s test actually fails to follow a public meaning originalist methodology. The Court focuses present-day constitutional interpreters on evidence of constitutional meaning that only reflects a portion of the public—the politically empowered men who were in a position to pass legislation. Two unfortunate outcomes follow. First, by limiting potential evidence of public meaning so severely, the Court raises the risk that future decisions concerning regulations of arms will arrive at nonoriginalist results, both by the Supreme Court itself and by lower courts applying Bruen‘s test. Second, by unnecessarily and incorrectly sending the message that the meaning of the Constitution to Framing- and Reconstruction-era white women and people of color doesn’t matter, the Bruen majority unnecessarily contributes to the narrative that originalism doesn’t care about these people, historically or today.

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© 2024 Christina Mulligan.  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 author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, Brooklyn Law School.