In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court set forth a new test to determine whether a particular firearms regulation is in accord with the original meaning of the Second Amendment: “history and tradition.” At the critical step of the inquiry, the Court would essentially look to whether the challenged firearms regulation has a historical analogue. This “history and tradition” test is the new rage—it has found footing in Second Amendment jurisprudence, but the Court also employed this type of reasoning in Dobbs (reproductive rights) and Kennedy v. Bremerton (the Establishment Clause).
Several scholars have criticized the “history and tradition” inquiry as unworkable and as not appropriately capturing the contours of legislative power. I agree with these criticisms, but I write to make a separate observation—about the relationship between the newest form of originalism and textualism. My claim is that the “history and tradition” inquiry of originalism is in tension, and arguably incompatible, with textualism.
First, as a matter of definitions, originalism is a theory of constitutional interpretation that states that the original meaning of the Constitution, when discernible, should dictate the outcome of constitutional cases (that is, such discernible original meaning has priority in deciding cases over all other relevant criteria). Textualism is a theory of statutory interpretation that states the ordinary meaning of the statutory text at the time of enactment, when discernible, should dictate the outcome of cases involving that statutory text—that the original, ordinary meaning of the statutory text is given highest priority in decided statutory cases.
Originalism and textualism are not the same, but they are kin. Conservatives, and more relevantly conservative Justices, have tightly embraced both theories, arguing that both theories cabin judicial discretion, are more democratic, and provide a basis for objective judicial inquiry. (To be clear, I disagree, but I will demur on these points for now.)
In light of that, consider Wolford v. Lopez, decided last Term. The case concerned Hawaii’s law, passed after Bruen, “that prohibit[ed] firearms on private property open to the public without the express and affirmative consent of the property owner.” The Court struck down the law, as it failed the “history and tradition” test set forth in Bruen. That Court's application of the test proceeded as follows: First, the Court must determine whether the regulation in question activates the Second Amendment by impeding the individual right to bear arms. If so, then the regulation is presumptively unconstitutional, unless it is in accord with our history and tradition. To determine this, the Court must investigate whether there is a historical analogue to the regulation in question.
After finding that the law was within the ambit of the Second Amendment, the question then became about whether there were any historical analogues for the regulation. Hawaii proposed several, which we can group into two buckets:
(1) Laws, dating from before the first Founding, that (in exemplar language) “made it unlawful to ‘carry any gun or hunt on the improved or inclosed lands of any plantation, other than his own,’ without securing ‘license or permission from the owner of such lands or plantation.’” The Court termed these laws regarding “unauthorized hunting.”
(2) An “1865 Louisiana statute that made it unlawful ‘for any person or persons to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor, other than in lawful discharge of a civil or military order.’”
The Court rejected both sets of analogues. On the second analogue, the Court observed that the Louisiana law was not widespread and thus did not represent the history and tradition of such firearms regulation. The Court went further to chastise Hawaii for relying on this statute, as it was part of Louisiana’s Black Code—and it was the intent of the drafters of the Fourteenth Amendment to repudiate such Black Codes.
Now, with respect to the first set of analogues, an examination of their plain text reveals striking similarities with Hawaii’s statute. With both, in order to carry a gun on someone else’s property, you needed to have previously secured their (explicit) permission. But the Court was unconvinced. Instead, the Court stated that if you look to the purposes behind these statutes, you understand their difference: the candidate analogues were not about carrying guns, but rather about the distinctive harms of unauthorized hunting, like loss of property and disturbance of tranquility.
The Court’s reasoning disputing the analogues leaves much to be desired. Among other reasons, that a law was not widespread does not tell us that it was beyond the constitutional limits. Additionally, the Hawaii law is targeted at combating the disturbance of tranquility—because people who carry guns onto another’s property may shoot those guns and disturb the property owner’s tranquility.
But back to the critical point: To understand the legal effect of the first set of historical analogues, the Court went beyond the ordinary meaning of the text at the time of enactment and instead looked at the underlying purposes of those laws. Had the Court limited itself to the ordinary text of the candidate historical analogues and then compared that to Hawaii’s statute, that was nearly a “historical twin” or “dead ringer.” But the Court instead told us that to really understand the legal content of those historical statutes, you must look at the legislative purposes and intentions behind those statutes. That seemingly repudiates the core tenet of textualism—that the ordinary meaning of the statutory text dictates its legal content. Consider what Justice Gorsuch wrote for the Court in Bostock as a paean to textualism: “If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives.” But that is precisely what the Court did in Wolford.
How might the newest Bruen-ized originalists respond? Some possibilities:
(1) They could reject Wolford as wrongly decided, or at least wrongly reasoned. They could agree that the Court should never have looked at the purposes underlying the legislation and instead it should have looked only at the ordinary meaning of the text of the historical analogues. But that does not seem to be how new originalists are proceeding. In describing the assessment of historical analogues under Bruen, Justice Alito says:
Determining whether [the historical analogues are relevantly similar] requires consideration of “how” the analogue restricted the keeping or bearing of arms—that is, whether it imposed a restriction similar to that imposed by the challenged law. And a court must also consider “why” the analogue restricted the keeping or bearing of arms—that is, whether its rationale was similar to that of the new law.
The Court’s originalists are all in on their inquiry into legislative purposes and intentions.
(2) They could contend that the consideration of such underlying purposes is really just understanding the broader context of the statutory text, which is consistent with textualism. Indeed, some prominent textualist scholars have argued for a greater consideration of context within their method. Suffice it to say, as a proponent of pluralism in (statutory) interpretation, I welcome this as a matter of methodology, but I bristle at calling this “textualism.”
(3) They could bite the bullet and admit that they have discarded textualism as a mode of statutory interpretation. I’ll just observe that this does raise further questions. Though it is true that originalism and textualism are distinct theories, they are motivated by similar considerations—like cabining judicial discretion, being more democratic, and being more objective. If originalism demands that we not heed the ordinary meaning of a statutory text, that raises related questions why we should limit interpretation to the original meaning of the constitutional text.
(4) Finally, they could try to have their cake and eat it too: they could argue that legislative purposes and intentions are important for understanding the context of statutes to inform the Constitution’s original meaning, but insofar as we are ascertaining the legal force of the statute itself, to apply that statute, we should confine ourselves to textual meaning. I do not see why this would be the case. Why would we have such different approaches to understanding the legal force of statutes simply based on which kind of text is ultimately being applied in the case? I don’t want to foreclose here that there may be some path forward to this kind of approach, but at the moment I don't see it.
Thus, the newest originalism seems to be in serious tension with textualism. I’m neither an originalist nor a textualist. But it seems like, even if one wanted to, you can’t be both.