I certainly don’t expect a fair presentation of constitutional originalism and the Second Amendment from National Public Radio. NPR has made its liberalism and love of gun control far too clear.
But I hoped for something more from the Duke Center for Firearms Law, which touted its “rigorous and balanced scholarship” when it launched in 2019.
Unfortunately, following the Supreme Court’s vindication of public self-defense rights in NYSRPA v. Bruen, we find Duke Center Co-Director Joseph Blocher talking nonsense about originalism with a local NPR affiliate.
Nothing Radical About Reading
Blocher criticizes Bruen’s insistence on the original meaning of the Second Amendment, calling it a “radical new approach to constitutional law.” Far from scholarship, this is exactly the sort of careless soundbite I expect from politicians and gun control activists.
As the term itself suggests, originalism is hardly radical or new. In essence, originalism is the insistence that laws have a real and fixed meaning over time, based on how the public would have understood the words of a law when it was originally enacted. Far from being a “radical new approach to constitutional law,” originalism—such as we see in the Bruen decision—is precisely a safeguard against novel and radical misconceptions of the Constitution.
As one of my MSLF colleagues has noted, what we call originalism in the law is what we describe as attentive and accurate reading in other contexts. In reading Shakespeare, for instance, it is essential to know what his words would have meant to an audience of his day. One must be an “originalist” to avoid basic misunderstandings of his work.
The same is true of our founding documents. We have seen that when the original meaning is not applied, the door is open for virtually any new and contrived meaning to take its place.
Tears for Tiers
So why is a professedly serious scholar like Joseph Blocher misrepresenting Bruen’s originalism as a “radical new approach to constitutional law”?
It appears Blocher is upset about Bruen because it abolished a judicial doctrine he favors, the so-called two-step test. The test splits the Second Amendment into “core” and “non-core” portions—a distinction between supposedly more and less important self-defense rights—and applies different standards of judicial review based on this non-Constitutional distinction. These often convoluted concepts had a simple result: they enabled judges to give easy, rubber-stamp approval to nearly all gun control measures outside the home.
The two-step test survived for years because many lower court judges presented it as an interpretation of D.C. v. Heller (2008), the most important gun rights decision in American history. Blocher has sided with them: in a 2018 article for the leftist website Vox, and an earlier piece for the anti-gun outlet The Trace, he presented this two-step doctrine—and the extensive gun control upheld by it—as fitting comfortably with the holding of Heller.
But Heller contains no such test, only some language that others twisted to create it.
In the process of striking down New York’s effective ban on public carry, the June 2022 Bruen decision forbade judges from applying this deferential, fabricated, and unconstitutional two-step test. The Court also stated that Heller never actually allowed for it.
Instead, Bruen makes it clear that the proper standard for Second Amendment cases is originalism—applying the plain text of the Constitution, using history as a guide to its authentic meaning.
A Right is a Right
Consistent originalists maintain that all of our constitutional rights are to be interpreted in this way, rather than by the “tiers of scrutiny” approach, which applies different legal standards to alleged constitutional violations based on the nature and seriousness of the violations. The two-step gun control standard favored by Blocher is an instance of that tiered approach.
Although they are now widely used, the tiers of scrutiny are a modern invention, and they essentially allow the government to infringe on constitutionally protected rights if it can offer a “good enough” reason. But if a right is protected by the Constitution, there should be only one method to evaluate the government’s actions—the Constitutional text, not a tiered system of compromises. As Justice Thomas, who authored the Bruen decision, once said, “A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment.”
In essence, what Blocher finds troubling about Bruen is the Court’s refusal to engage in this tiered form of analysis, which has no basis in the constitutional text. Fidelity to the text and its original meaning is what the Duke Center leader deems a “radical new approach.”
If Blocher wants to put himself forth as a scholar rather than a gun control activist, he should offer the media an accurate account of the Bruen decision and originalism. Let the public judge for themselves whose approach is really novel, radical, and unconstitutional.