Against Narrow and Hidebound Originalism: On Peruta v. San Diego and the Right to Armed Self-Defense

Predictions of originalism's impending demise may have been premature--at least when it comes to the Second Amendment. What Professor Randy Barnett has referred to as the gravitational force of originalism as a methodology for interpreting the Constitution was widely noted in connection with the Supreme Court's landmark 2008 decision in District of Columbia v. Heller, which held that the Constitution secures an individual right to keep and bear arms for the purpose of self-defense. The continued influence of originalism upon our Second Amendment jurisprudence is evident in Peruta v. San Diego, a recent decision in which the Ninth Circuit Court of Appeals (sitting en banc) evaluated a constitutional challenge to two California counties' policies defining the "good cause" that law-abiding private citizens must show in order to receive a permit to carry a concealed firearm in public for self-defense. Judge William Fletcher, writing for the majority, examined sources dating back to the thirteenth century and found that laws forbidding concealed weapons were nearly universally upheld against constitutional challenges in the years after the adoption of the Second Amendment and before the adoption of the Fourteenth Amendment, as well as after the adoption of the Fourteenth Amendment. Thus, he concluded that the right to keep and bear arms does not include "in any degree, the right of a member of the general public to carry concealed firearms in public."

Conservative and libertarian originalists might be inclined to praise the majority's methodology, even if they regret the outcome. This inclination should be resisted. In only pursuing the question whether concealed-weapons bans were thought to be unconstitutional hundreds of years ago, the Peruta court undermined the rule of law and compromised the rights of ordinary Americans who seek to defend themselves and their families. The court also revealed that originalism of a certain variety--an originalism tethered to the original expected applications of constitutional concepts--is incapable of keeping government officials within constitutional limits today.

As ably defined by Professor Larry Solum, originalism is a family of theories that are unified by their commitment to two core ideas: (1) the communicative content of any particular provision of the Constitution was fixed when that provision was framed and ratified; (2) that communicative content should constrain constitutional practice (in particular, constitutional adjudication). The communicative content of the Constitution's various provisions is distinguishable from the subjective beliefs or expectations held by any individual or group of individuals about or concerning that content. As the term "golden retriever" (in ordinary usage) incorporates all of the attributes of a particular breed of dog and refers to all past, present and future goldens, not simply our (limited) knowledge concerning the breed's attributes or those goldens with which we are acquainted, so too "the freedom of speech" refers to all activities of a certain kind--activities known, unknown and even unimaginable during the Founding era. Indeed, for reasons explained by Professor Christopher Green in a thoughtful recent post on the Originalism Blog, it is possible for everyone at the time of the ratification of a particular constitutional provision to agree about how that provision ought to apply in a particular instance but nonetheless be wrong. Green offers an example: "Everyone at the time the Constitution was drafted (at least, everyone who mattered when the interim rules of Art. I, sec. 2, cl. 3 were drafted) thought that it was constitutional to give more representatives to Maryland than to North Carolina. But that conclusion depended on the incorrect-but-apparently-universal belief among the relevant Founders that Maryland's free-population-plus-three-fifths-of-its-enslaved-population was larger than North Carolina's."

Fidelity to the law of the land necessarily entails departing in appropriate cases from the beliefs and expectations of those who came before us. As Green puts it, "the sense originally expressed by the text of the Constitution is what the phrase 'this Constitution' in Article VI makes binding, not the original reference or collection of things referred to by the Constitution." We must add to and subtract from the collection of referents (things of a certain kind) that the Framers associated with particular concepts as needed when either the facts change or our knowledge of particular concepts develops. The fact that the Framers never thought of video games or thermal imaging does not mean that the former is not an instance of the concept of "the freedom of speech" or that the use of the latter to detect the heat produced from marijuana cultivation inside of a house is not a "search." That it may never have occurred to them that modern criminal procedure is so complicated that laypeople are incapable of competently defending themselves in criminal trials does not mean that a public defender is not required by the Constitution's guarantees of due process of law.

What can we say, then, of "the right of the people to keep and bear Arms" and whether it includes a right to carry concealed firearms in public for self-defense purposes? The Heller Court properly identified the "right of the people to keep and bear Arms" as a corollary of the right to self-preservation. Needless to say, the right to preserve one's life applies both inside and outside the home, and the Heller Court recognized that the Second Amendment secures "an individual right protecting against both public and private violence" (emphasis added). If the government prohibits private citizens from carrying firearms for self-defense outside the home, it violates that right.

The Ninth Circuit's opinion in Peruta discloses the perils of relying upon original expected applications in evaluating the constitutionality of government conduct. During the time periods surveyed by the majority, courts consistently affirmed the right of citizens to carry firearms in public openly for protection. Thus, the carrying of firearms in public for self-defense was regulated but not prohibited. But because California law prohibits openly carrying firearms, San Diego and Yolo Counties' requirement of a particularized reason for granting an application for a concealed-carry license effectively prohibits most law-abiding citizens from carrying firearms for self-defense outside the home. In focusing narrowly on the question whether concealed-weapons bans were thought unconstitutional in the past and failing to consider whether that conclusion was dependent on a social fact that is no longer present in California--namely, the existence of a legal regime that allows people to openly carry firearms--the majority missed the forest for the trees. Further, as Judge Consuelo Callahan pointed out in a vigorous dissent, California permitted unloaded open carry when the plaintiffs initially brought suit--it changed its laws during the pendency of the plaintiffs' appeals. The majority's approach, if widely adopted and applied to burdens on other constitutional rights, would enable states to "obliterate [rights] by enacting incrementally more burdensome restrictions while arguing that a reviewing court must evaluate each restriction by itself when determining its constitutionality."

The enduring appeal and influence of originalism is attributable in substantial part to its promised capacity to maintain the rule of law. But the rule of law, understood as a legal regime in which the limits of government power are set by fixed, publicly-known principles of reason rather than the mere will of men, is incompatible with an interpretive approach that grounds legal authority in the subjective beliefs or expectations of any person or group of people. The rational principles in our law can only be given effect by the federal judiciary by means of objective constitutional interpretation. Objectivity in constitutional interpretation consists in disciplined, logic-guided, context-sensitive inquiry into the meaning of the Constitution's language. Defining constitutional concepts like "the right of the people to keep and bear Arms" entails not only careful study of historical facts about word usage and linguistic practice but a firm grasp of the political philosophy that the Constitution is designed to implement as well as the function that each of its provisions plays in implementing that philosophy. (Though judges may not appeal to that political philosophy in contravention of the Constitution's text.) It also requires us to draw upon any knowledge that we have subsequently acquired about particular concepts and their referents. Enforcing the Constitution in concrete cases in turn requires judicial engagement--the evidence-based pursuit of the government's true ends and means, without deference to government officials' beliefs or desires, in determining whether particular assertions of government power over individuals are lawful.

If Peruta illustrates the continued influence of originalism, it also reveals the dangers of a narrow and hidebound originalism. Originalist analysis that identifies the meaning of the law with long-dead men's expectations concerning the law cannot deliver the rule of law. Rather, it enthrones those men above the law and subjects us to their beliefs and opinions, however erroneous, to the detriment of our rights here and now. Defenders of the rule of law established by the Constitution can and must do better.