Will the Supreme Court Create Universal Conceal Carry Based on Fantasy Originalism?

Will the Supreme Court Create Universal Conceal Carry Based on Fantasy Originalism?

Supporters of gun control and firearm safety measures hold a protest rally outside the US Supreme Court in Washington, DC, December 2, 2019. When the Supreme Court hears oral arguments this week in the most significant gun case in more than a decade the court will be presented with two very different versions of the past. Paul Clement, arguing for the New York State Rifle and Pistol Association against a New York law that restricts the ability to carry concealed handguns in public, claims that something called “peaceable armed travel” has always existed and is protected by the Second Amendment. New York, by contrast, argues that the right to carry arms in public, particularly in populous areas, has been subject to robust regulation for most of the last seven centuries. In particular, New York claims that history offers clear evidence that the right to carry arms in public was predicated on demonstrating a specified threat. Which version of history will prevail in court? Much will depend on the willingness of the court’s newest originalist judges to follow the evidence to conclusions that are not popular among the base of the Republican Party. If originalists are sincere in their claims that their method is neutral, New York may prevail. If originalism is little more than a smokescreen for judges to further their ideological and policy preferences, then the law at issue will likely fall. The idea that Shakespeare’s England was filled with gun-toting Britons seems absurd, but this is precisely […]

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