There is something cruelly ironic about reading the recent Surgeon General’s report on gun violence and the Supreme Court’s June decision on the Second Amendment in United States v. Rahimi.
Even though Rahimi upheld a ban on those with domestic-violence restraining orders against them possessing firearms, two of the conservative justices used concurrences to attack the notion that judges ought to pay attention to the consequences when deciding on the constitutionality of gun laws. But judges, lawyers, and legislators at the time the Second Amendment was enacted were keenly aware that consequences mattered and were necessary to evaluate the constitutionality of laws.
[time-brightcove not-tgx=”true”]Thus, although the Supreme Court’s conservative majority claims to be faithful to the idea of originalism—that is, identifying the meaning of constitutional provisions at the time they were enacted—they ignore the history of the Founding Era when it comes to assessing gun laws. By contrast, the Surgeon General’s Report on the danger gun violence poses to American society never mentions history, but its approach to the problem of gun violence comes far closer than the Court’s to capturing how the Founding generation understood gun policy and regulation.
Despite the claims of today’s originalists, early American judges, lawyers, and legislators were not obsessed with words alone; consequences mattered very much to the Founding generation.
Legislatures enacted hundreds of gun laws in the era of the Second Amendment. Among the most common were gun-powder storage laws. Judges evaluated their constitutionality using a legal doctrine called “the police power,” a concept developed by Supreme Court Chief Justice John Marshall, perhaps the greatest judge in American history.
Read More: What the Supreme Court Keeps Getting Wrong About the Meaning of a ‘Well Regulated Militia’
The doctrine rested on the notion that police power is inherent in government and flows from the most basic right in Anglo-American law, the right of the people themselves, acting through their representatives, to enact laws to promote public health and safety. As the Supreme Court explained in an 1847 decision, the police power “is not susceptible of an exact limitation.” As “new and vicious indulgences” emerged, they required “restraints that can only be imposed by new legislative power. When this power shall be exerted, how far it shall be carried, and where it shall cease, must depend upon the evil to be remedied.” In other words, regulation was not frozen in time, but would evolve in response to changing dangers.
When evaluating gun laws, early American judges applied the police power framework by asking two basic questions: first, was the law in question a legitimate exercise of the police power, and, second, was it a regulation or did it effectively negate the right protected by the amendment entirely?
The second question stemmed from the unique language of the Second Amendment. Unlike the First Amendment—which prohibits abridging the freedom of speech—the Second Amendment bans infringing upon the right to bear arms, a very different construction. This language meant that restrictions and limitations on the right to bear arms were constitutional under two conditions: they needed to promote public health and safety, and avoid destroying the essence of the right. Bearing arms could be restricted, but not so much as to eliminate the right altogether.
The application of this approach was made clear in a landmark 1840 case called State vs. Reid. The state of Alabama prosecuted a local sheriff for carrying a concealed weapon in violation of its strict prohibition on public carry of such arms. (Police officers did not routinely carry guns until decades after the Civil War.) In upholding this law, the state’s highest court concluded that there was no unfettered right to carry guns. “The terms in which this provision is phrased,” the court noted, “leave with the Legislature the authority to adopt such regulations of police, as may be dictated by the safety of the people and the advancement of public morals.”
Banning concealed carry, in other words, was perfectly constitutional. Moreover, the alternative option—open carry—was a practice that could only be justified when an emergency was “pressing” or when an individual was traveling far from home, especially on the frontier.
Another common tool at the time for restricting when and how early Americans could carry firearms stemmed from the unique structure of law enforcement at the time. There were no police forces in early America. In most communities, law enforcement was handled by the Justices of the Peace who used a legal tool inherited from England, sureties, which were also known as peace or good-behavior bonds.
Any justice of the peace—or even a member of a community—could come forward and demand that people posing a danger post a financial bond to guarantee their good behavior. In the cash-poor environment of the Founding era, obtaining the money for these bonds often involved approaching a wealthy neighbor who then had a strong financial incentive to keep potentially unruly or dangerous people in line. That created enormous financial and social pressures, which would compel someone not to carry a weapon and risk losing the bond. Courts blessed this approach as well.
Finally, the Reid Court articulated a guiding principle that continues to elude today’s Supreme Court: judicial humility and modesty. Striking down an act of the legislature was not an ordinary everyday occurrence for judges in the Founding era. It was a solemn task. The Reid Court captured this vision of judicial humility by observing that there had to be “no rational doubt” about the law’s unconstitutionality if it were to be struck down. In close cases, courts deferred to legislatures.
Read More: Supreme Court Upholds Gun Ban for Alleged Domestic Abusers
The actions of the Reid Court, and the general practices of Founding-era jurists, make clear that judges at the time when the Second Amendment was drafted and ratified and in subsequent decades approached the law very differently than does today’s Supreme Court. Rather than focusing on hyper-textualism, they focused on consequences, what today’s originalists disparage as “policy.”
The people themselves, acting through their legislatures, had broad latitude to address issues of public safety. Further, in close cases, where a law butted up against the boundaries of legitimate regulation, courts generally deferred to legislatures giving them the benefit of the doubt. That explains why they routinely blessed new gun regulations despite the presence of the Second Amendment and related state laws.
Today, it’s the Surgeon General talking about the need to address the consequences of the proliferation of guns in the U.S. — a crucial public safety issue. By contrast, the Supreme Court, despite a majority of the justices professing to care about “originalism,” scorns such considerations as “policy,” which they erroneously claim has no place in Second Amendment jurisprudence. This idea is a modern invention and would have appalled the authors of the Second Amendment.
Indeed, in making this claim, they are perverting the Founders’ version of the Second Amendment by limiting the police power of the state in a way the Founding generation would’ve found baffling and alarming.
Worst of all, by rewriting the past, and erasing much of it that they find inconvenient, the Supreme Court has made it more difficult to solve the crisis of gun violence, which as the Surgeon General frankly recognized, is taking an enormous toll on American society. Instead of deferring to the people’s representatives, as the Founders intended, today originalists on the Supreme Court have arrogated power to themselves.
Perhaps the greatest irony of all is that if anyone at the time the Constitution was proposed had suggested that the new Supreme Court would behave as the current court has done time and again, the Constitution would never have been ratified and there would be no Second Amendment to protect, because early Americans would never have countenanced these sorts of restrictions on the police power.
Saul Cornell is Paul and Diane Guenther Chair in American history at Fordham University and a visiting research scholar at Yale Law School.
Made by History takes readers beyond the headlines with articles written and edited by professional historians. Learn more about Made by History at TIME here. Opinions expressed do not necessarily reflect the views of TIME editors.
