Is a public-carry law only unconstitutional where “historical evidence clearly commands” that result?
The Harvard Law Review published an unsigned student note on Young v. Hawaii. (All student notes on HLR are unsigned). In that case, the Ninth Circuit declared unconstitutional Hawaii’s prohibition on open-carry. Recently, the Court of Appeals granted rehearing en banc. That decision will likely be reversed.
The note argues that originalism requires something of a clear statement rule: unless constitutional history is “clear,” then the court should defer to the democratic branches. The note explains:
Young‘s shortcomings point to a broader lesson about Second Amendment analysis: where balanced historical review fails to reveal a single public meaning, reading the record selectively risks subverting the objectives of originalism itself. Heller may have treated history as determinative in defining the right to self-defense within the home, but Justice Scalia was well aware that this approach has its limits. The “principal defect” of originalism, he explained, is that “historical research is always difficult and sometimes inconclusive. Such ambiguity, however, is not an invitation for courts to choose their preferred constitutional meaning; judges should instead proceed cautiously to resolve disputes in a manner consistent with broader originalist values….
Young’s outcome is also at odds with the conception of originalism as a restraint on undue interference in the political domain. According to Justice Scalia, originalist analysis “intrudes less upon the democratic process” than other interpretive methods:
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