The doctrine of originalism faces mounting scrutiny as it grapples with modern legal challenges, particularly those concerning the Second Amendment.
Gregory Sullivan, a lawyer teaching at Princeton University, argued in an article for the National Review that Originalism has long been a cornerstone of constitutional interpretation in American jurisprudence, gaining a strong foothold in law schools and on the Supreme Court.
The Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen epitomized this approach by introducing a new standard centered around history and tradition when evaluating gun regulations.
This "history-and-tradition" standard was envisioned to minimize judicial discretion, aiming to ground legal interpretations in historical contexts.
The Bruen decision quickly influenced other significant cases, including U.S. v. Rahimi, where the Court evaluated federal statutes concerning firearm restrictions for individuals with domestic violence restraining orders.
Justice Clarence Thomas, author of the Bruen decision, expressed dissent in Rahimi, criticizing its application of the history-and-tradition standard, stating, "That is not a good doctrinal launch."
Contrastingly, Justice Brett Kavanaugh supported this methodology in Rahimi, arguing that it adds a layer of democratic restraint to the judicial process.
The application of Bruen has not been uniform, as seen in the Fourth Circuit Court of Appeals’ handling of Maryland's assault weapons ban in Bianchi v. Brown.
The decision, split along ideological lines, saw Judge J. Harvie Wilkinson III critique the Supreme Court’s method, revealing deep divisions within the judiciary over how to apply originalist principles to modern issues.
Wilkinson’s majority opinion highlighted the challenges of adhering strictly to historical standards in contemporary jurisprudence.
In other landmark decisions, the clarity of historical records has played a crucial role.
For instance, the Dobbs v. Jackson Women's Health Organization decision in 2022, which overturned Roe v. Wade, leaned heavily on historical analysis.
This emphasis on historical context was also evident in Justice Scalia’s dissent in the 2015 Obergefell v. Hodges case, where he referenced the original understanding of the Fourteenth Amendment to argue against same-sex marriage rights.
Justice Kavanaugh has remarked on the complexity of aligning historical facts with modern legal frameworks, stating, “In some cases, text, history, and precedent may point in somewhat different directions. In law as in life, nothing is perfect.”
The recent judicial decisions underscore a broader debate about the role of historical analysis in court rulings and whether it effectively checks judicial power or simply justifies it.
Critics argue that reliance on historical analysis can sometimes reflect the biases of the justices, thereby influencing rather than guiding decisions.
The tension between historical adherence and judicial interpretation continues to spark discussions about the future direction of the Supreme Court’s jurisprudence.
