EricSegall： Expected Applications, the Second Amendment, and Why Real Originalism is Either Intolerable or Impossible // Dorf on Law:

 Expected Applications, the Second Amendment, and Why Real Originalism is Either Intolerable or Impossible

By Eric Segall //Dorf On Law

Last week at the Law & Liberty blog, Professor John McGinnis, a self-proclaimed originalist, was quite giddy about the Court's Second Amendment opinion in New York Pistol & Rifle Association v. Bruen striking down a New York law requiring a special permit to conceal carry a handgun. His essay, titled "Bruen's Originalism," takes away three main points from the case:

 First, it considers carefully how the right to bear arms would have been expected to be 

applied both before and around the time of its enactment. It thus endorses “expected applications” 

as a way to give a provision concrete meaning. 

Second, many, if not most, of these expected applications derive from legal context—

both how the Second Amendment reflected previous law and what subsequent 

law said about how it was to be applied. 

It thus suggests that  this constitutional provision which seems on its face 

to be written in ordinary language may require a legal gloss to be fully understood.

Finally, Bruen stands for the proposition that legal doctrine can be 

derived from a provision’s original meaning.

Leaving aside the obvious point that the Court's historical analysis was an after-the-fact cobbled-together rationale for a result reached on other grounds, I want to focus this post on McGinnis' first point about "expected applications.” If  McGinnis is descriptively right, his analysis goes a long way to showing why true originalism is either intolerable or impossible.

McGinnis concedes that there is an intramural debate among academic originalists concerning "expected applications." He says the following:

One of the controversial issues in originalist theory is the use of “expected applications.” Expected applications are instances of how those around the time of enactment thought the provisions or provisions with similar language would be applied. Some originalists, like Jack Balkin, reject expected applications even as evidence of what the Constitution means, preferring to interpret the text as enacted, unmediated by the applications surrounding the era of enactment. In contrast, Mike Rappaport and I believe that the expected applications are often good evidence—sometimes the best evidence—of what the text actually meant....Thomas clearly embraces expected applications.

I don't think this really captures Balkin's position but it does accurately state the opposition to strong reliance on expected applications by most New Originalists, including Professor Larry Solum. For example, in trying to justify why the 14th Amendment protects against gender discrimination today, given that we know that was not the original expectations of those who wrote and ratified the Amendment, Solum has said the following:

[I]n Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender. . . . Bradwell could have been understood as consistent with the [Privileges or Immunities Clause] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts. The Constraint Principle does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.

I doubt McGinnis would agree that known expected applications of imprecise language can be waved away by later judges just because of "changing beliefs about facts."  That is why, I think, McGinnis believes there is disagreement among originalists about how binding expected applications actually are on judges. Solum's approach, as I've written many times before, is indistinguishable from living or common law constitutionalism (see below). I don't think McGinnis is a living constitutionalist.

Five other Justices joined Thomas' opinion. Let's assume McGinnis is right and the expected applications of those who ratified and voted for constitutional text provide very strong evidence of what the words originally meant, and judges should follow that evidence. What would that approach, faithfully applied, mean for constitutional law. Hold on to your seats.

 

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