Fake Originalism and the Right to Bear Arms

ABSTRACT:

Many questions about the meaning of the Second Amendment are open to legitimate debate, but one might think that the existence of the right to keep and bear arms is settled by the text of the Constitution. In two en banc decisions, Peruta v. County of San Diego (2016) and Young v. Hawaii (2021), the Ninth Circuit decided that there is no right to bear arms, either concealed (Peruta) or openly (Young). This effectively expunges the words “and bear” from the constitutional text.

Young does not openly rely on the “living Constitution” theory, under which judges are authorized to amend or update the Constitution to reflect their views of the nation’s current needs. The Ninth Circuit purported instead to discover the original meaning of the text. But it did no such thing. Young is an example of the currently fashionable practice of fake originalism, which dresses up judicial amendments of the Constitution in originalist clothing. No less than , this phenomenon reflects what Justice Alito has called “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.”

If the Supreme Court decides to rewrite the Second Amendment, it should not follow the Ninth Circuit’s approach. It would be better just to tell us what the new text says and be done with it.