IThere is something cruelly ironic about reading the Surgeon General’s recent report on gun violence and the Supreme Court’s June decision on the Second Amendment in United States vs. Rahimi.
Although Rahimi In a case upholding a ban on people with domestic violence restraining orders from possessing firearms, two of the conservative justices used the concurring opinion to attack the idea that judges must pay attention to consequences when deciding the constitutionality of gun laws. But judges, lawyers, and lawmakers at the time the Second Amendment was enacted were fully aware that consequences mattered and were necessary in assessing the constitutionality of laws.
Thus, while the Supreme Court’s conservative majority claims to be faithful to the idea of originalism (that is, identifying the meaning of constitutional provisions at the time they were enacted), it ignores Founding Era history when it comes to evaluating gun laws. In contrast, the Surgeon General’s Report on the Danger That Gun Violence Poses to American Society never mentions history, but its approach to the problem of gun violence comes much closer than the Court’s to capturing how the Founding generation understood gun policy and regulation.
Despite the claims of modern-day originalists, early American judges, lawyers, and lawmakers were not obsessed with words alone: consequences mattered greatly to the founding generation.
In the Second Amendment era, legislatures enacted hundreds of gun laws. Among the most common were laws on gunpowder storage. Judges assessed their constitutionality using a legal doctrine called “the police power,” a concept developed by Supreme Court Chief Justice John Marshall, perhaps the most important justice in American history.
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The doctrine was based on the idea that police power is inherent in government and flows from the most basic right in Anglo-American law, the right of the people themselves, acting through their representatives, to enact laws to promote public health and safety. As the Supreme Court explained in an 1847 decision, police power “is not susceptible of exact limitation.” As “new and vicious indulgences” arose, they demanded “restraints which can only be imposed by a new legislative power. When this power is to be exercised, how far it is to be carried, and where it is to cease, must depend on the evil it is to be remedied.” In other words, regulation was not frozen in time but would evolve in response to changing dangers.
In evaluating gun laws, early American judges applied the police power framework by asking two basic questions: First, was the law in question a legitimate exercise of police power? And second, was it a regulation or did it effectively negate the right protected by the amendment altogether?
The second question arises from the unique language of the Second Amendment. Unlike the First Amendment, which prohibits abridging free speech, the Second Amendment prohibits infringing The right to bear arms is a very different interpretation. This language meant that restrictions and limitations on the right to bear arms were constitutional under two conditions: they must promote public health and safety and avoid destroying the essence of the right. Carrying arms could be restricted, but not so much as to eliminate the right altogether.
The application of this approach was made clear in a landmark 1840 case called State vs. Laugh. The state of Alabama prosecuted a local sheriff for carrying a concealed weapon, violating its strict ban on openly carrying guns (police officers did not routinely carry guns until decades after the Civil War). In upholding this law, the state’s highest court concluded that there was no unrestricted right to bear arms. “The terms of this provision,” the court noted, “leave to the Legislature the authority to adopt such police regulations as may be made for the safety of the people and the promotion of public morals.”
In other words, banning concealed carry was perfectly constitutional. Moreover, the alternative option…open Carrying weapons was a practice that could only be justified when an emergency was “urgent” or when an individual was traveling far from home, especially at the border.
Another common tool of the era to restrict when and how early Americans could carry firearms arose from the unique structure of law enforcement at the time. There were no police forces in early America. In most communities, law enforcement was handled by justices of the peace, who used a legal tool inherited from England, bail bonds, which were also known as peace or good-behavior bonds.
Any justice of the peace, or even a member of a community, could show up and demand that people who posed a danger post a financial bond to ensure their good behavior. In the cash-strapped environment of the Founding era, obtaining the money for these bonds often involved approaching a wealthy neighbor who had a strong financial incentive to keep potentially unruly or dangerous people in line. That created enormous financial and social pressures, compelling someone not to carry a gun and risk losing their bond. The courts approved of this approach as well.
Finally, the Reid Court articulated a guiding principle that continues to elude today’s Supreme Court: judicial humility and modesty. Overturning a statute of the legislature was not an everyday occurrence for judges in the country’s founding era. It was a solemn task. The Reid Court captured this vision of judicial humility when it observed that there should be “no rational doubt” that the statute was unconstitutional if it were overturned. In close cases, courts deferred to legislatures.
Read more: Supreme Court upholds gun ban for alleged domestic abusers
The actions of the Reid Court and the general practices of founding-era jurists make clear that the justices of the era when the Second Amendment was drafted and ratified and of the decades since approached the law very differently than does today’s Supreme Court. Rather than focusing on hypertextualism, they focused on consequences, which today’s originalists disparage as “politics.”
Citizens themselves, acting through their legislatures, had broad latitude to address public safety issues. Moreover, in difficult cases, when a law ran up against the boundaries of legitimate regulation, courts typically deferred to legislatures and gave them the benefit of the doubt. That explains why they routinely passed new gun regulations despite the presence of the Second Amendment and related state laws.
Today, it is the Surgeon General who speaks of the need to address the consequences of gun proliferation in the United States, a crucial public safety issue. Instead, the Supreme Court, despite a majority of justices claiming to care about “originalism,” dismisses such considerations as “political,” which they wrongly claim have no place in Second Amendment jurisprudence. This idea is a modern invention and would have horrified the framers of the Second Amendment.
In fact, by making this claim, they are perverting the Founders’ version of the Second Amendment by limiting the police power of the state in ways that the founding generation would have found disconcerting and alarming.
Worst of all, by rewriting the past and erasing much of what is inconvenient to them, the Supreme Court has made it even more difficult to solve the gun violence crisis, which, as the Surgeon General frankly acknowledged, is taking a huge toll on American society. Instead of deferring to the people’s representatives, as the Founders intended, the originalists on the Supreme Court have now arrogated power to themselves.
Perhaps the greatest irony of all is that if anyone at the time the Constitution was proposed had suggested that the new Supreme Court would behave as the current court has done over and over again, the Constitution would never have been ratified and there would be no Second Amendment to protect, because early Americans would never have tolerated these kinds of restrictions on police power.
Saul Cornell is the Paul and Diane Guenther Professor of American History at Fordham University and a Visiting Scholar at Yale Law School.
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