No. of Recommendations: 5
I am interested in your opinion about Bruen's historical analogue test. My opinion is that it's unworkable. Even if you allow historical analogues up to and just after the Civil War, we get frozen into the mainstream laws of a past era. They seem to come up with reasons for disregarding laws they don't like, so I'm very disappointed this was put forth as a standard.
One of the thorny questions in law is figuring out how to interpret words, phrases, or provisions in a document (like a statute, a constitution, or a contract) when there is disagreement about what those words or provisions mean. There are lots of theories on how judges should do that, and lots of different approaches to statutory construction.
One approach is to say, we're going to try to figure out what the parties meant at the time they drafted the document. This is a very common approach with contracts, and fairly common in statutes - where the folks drafting the document and the folks agreeing to the document are pretty coextensive. So if there's an uncertain term or phrase in a contract, the courts will try to figure out what the two parties to the contract thought it meant when they wrote it.
Originalism purports to apply this to the U.S. Constitution. When trying to figure out what an uncertain term means - like the word "liberty" in the 5th Amendment - originalists counsel towards trying to figure out what the authors (the Framers) or the ratifiers (the public) back in 1791 would have thought that term meant. That should guide your approach.
To take a non-controversial question, does the First Amendment prohibition on infringing on freedom of speech mean that the government can't provide a monetary penalty for slander? There's lots of ways to approach that question - but one way to look at it is to observe that historically, there were always laws against slander that were routinely adopted, enforced, and pretty much unquestioned both before and after 1789 and 1868. That's a pretty good indication that the people who wrote the First Amendment didn't think it barred the government from prohibiting slanderous speech.
Pretty tame stuff at that level. Trying to figure out the original intent of the parties seems like it's a nice, neutral approach to construction.
Where it gets tricky is when you start making judgments about what level of generality to apply, and applying your own presumptions. For example, consider the question of what is considered "the press" in Freedom of the Press. If we ask what the Founders thought that meant, it clearly would include the literal printing press (books and newspapers and things). Does it include television or movies? Well, if "press" refers generally to forms published or broadcast mass communication, then yes; but if "press" refers specifically to printed matters, then you could answer no. The outcome you get depends on how you ask the questoin.
Similarly, we might ask what the Framers/Ratifiers in 1868 might have thought the "right to bear arms" covered (or didn't). If we look specifically at what they allowed in 1791 and 1868, you might conclude that their intent was that the "right" included all but the lightest regulation (you could have virtually any weapon that would be carried as a personal firearm, but not cannon). If you look generally at what they allowed, you might conclude that the states regulated as heavily as necessary to protect the public order (virtually all the country was rural, so widespread firearm ownership was permissible and encouraged, but in urban areas it was more heavily regulated). Or do you take the approach that what the Framers/Ratifiers meant was that civilians could have guns with a very low rate of fire (say, that of an 1860's-era repeating rifle) but not something with a higher rate of fire (like Gatling guns that were not owned by civilians) in that era?
That's why I think the Court may have some difficulties with the Bruen standard - because how you frame the "historical" question determines what answer you get, and originalism offers no "neutral" rules on which way to frame the historical question is correct.
