The Enumeration Conflagration: Originalist Interest-Balancing Tests After Bruen

I. Introduction

Enumerated individual rights in the Constitution have special power and meaning within American jurisprudence.^[1] An enumerated right is “[a]n express right embodied in writing.”^[2] Even when a right is enumerated, its specific meaning in a practical context is interpreted by judges, specifically, Supreme Court Justices. In District of Columbia v. Heller, the Supreme Court further defined the meaning of the Second Amendment, holding that the enumerated right to bear arms is an individual right to ownership of certain firearms within the home, including handguns kept for the purpose of self-defense.^[3]

However, there is a contradiction in this opinion. In Heller, the Court unequivocally states that enumerated constitutional rights cannot be and have never been limited by the Court’s “freestanding ‘interest-balancing’ approach.”^[4] Yet, that same opinion also states that most enumerated rights, including Second Amendment rights, are “not unlimited.”^[5] Plus, the common-use test—first proposed in Heller—is itself a form of interest-balancing test.^[6] This seeming contradiction raises the question: How exactly can these rights be limited if not by balancing them against a legitimate government interest? One rather unhelpful answer is that the Constitution specifically identifies places where a government interest trumps an enumerated right, such as in the context of habeas corpus.^[7] But even textually unqualified rights are not absolute.^[8] For example, the enumerated right to speech does not include the right to be obscene, profane, or libelous.^[9] The Founding Fathers meant to birth a constitution that would transcend time.^[10] If, as an originalist would suggest, the Constitution should be interpreted at the time of the founding,^[11] how exactly can that eighteenth-century document be transcendent?

The Heller majority’s answer is a semantic originalist opinion that these rights were self-limiting at their inception.^[12] This approach comes from a subcategory of originalism called semantic originalism.^[13] Under the legal philosophy of semantic originalism, enumerated rights should be defined by the “original public meaning.”^[14] Thus, enumerated rights are frozen in time—stuck in whatever balance existed at the very moment of enumeration. In other words, the Founders already completed the balance, and, absent a new constitutional amendment, it is not the modern judge’s place to recalibrate. For some, the originalist approach leads to a fatal flaw because it does not account for the changing world and the development of new interests.^[15] Originalists counter that Heller’s common-use test allows for modern variations of the enumerated right.^[16] However, this test is itself a restricted type of interest-balancing test that only considers the weapons themselves and offers no solution for modern-day individual or governmental interests.^[17]

The Second Amendment right—and gun laws in general—are outside the scope of this Note. The right to bear arms is merely a vehicle to discuss the larger enumerated rights issue. Any discussion of rights should not be construed by the reader to present an opinion on the validity of those rights. The analysis that follows will assume, without deciding or commenting, that the Second Amendment enumerates an individual right to gun ownership, as laid out in Heller.

This Note illustrates how Heller and Bruen unnecessarily complicate the discussion of enumerated rights and further posits that interest-balancing tests can still adhere to the philosophy that shaped those opinions. The analysis will use Heller as a base to discuss originalism’s role in the interpretation and adjudication of enumerated individual rights, and the contradictions this approach has created. Part II defines the corners of the philosophy of originalism through the lens of a fascinating, decades-long debate between legal giants Justice Antonin Scalia and Professor Ronald Dworkin. Part III explores Heller’s rejected tests and contends that the Court did not give enough consideration to at least one significantly meritorious option. Part IV analyzes the flaws in the Heller Court’s enacted tests, including a resultant and well-documented circuit split among the lower courts. Part V examines Bruen’s contribution to the enumerated rights debate and explains how a narrow type of originalist-approved interest-balancing—the common-interest test—can help resolve some of the tension and confusion that has created that circuit split.

II. Originalism: Dworkin vs. Scalia

Supreme Court Justice Antonin Scalia and renowned legal scholar Professor Ronald Dworkin engaged in a lengthy and well-documented debate on the constitutional interpretation of enumerated individual rights.^[18] In a diatribe enacted on the stage of various legal publications and lectures over the years, these two legal giants disagreed about various philosophical and historical approaches to originalism.^[19] Perhaps most confusingly, at times they also disagreed about whether they were disagreeing.^[20] This debate represents one of the most in-depth discussions about originalism, judicial overreach, and constitutional interpretation.^[21] The originalist values discussed in the Dworkin/Scalia dichotomy are extremely relevant to the Heller case because the opinion was written by Justice Scalia and was heavily influenced by his semantic originalist philosophy.^[22]

A. Semantic Originalism

Though the Constitution does not mention or endorse the originalist approach,^[23] the doctrine of originalism plays a vital role in the reasoning of the Heller opinion and American jurisprudence in general.^[24] Originalism, as a concept, has grown and changed considerably over the decades and, as a result, there are many different subcategories of originalism.^[25] Justice Scalia was one of the most avid champions of originalism.^[26] Of the subcategories,^[27] Justice Scalia thought of himself as a semantic originalist.^[28] “Semantic [o]riginalism is the view that the semantic content (or ‘meaning’ of the [C]onstitution) is the original public meaning of the constitutional text.”^[29] Semantic originalists consider the general understanding of a term’s meaning as seen from the perspective of the average reasonable person at the time the Constitution was enacted.^[30] Professor Dworkin, however, accused Justice Scalia of being a closeted expectation originalist.^[31] Expectation originalists consider the framers’ specific intent behind a term and how they wanted the Constitution to be interpreted.^[32]

The differences between semantic and expectation originalism can be confusing. The two views tend to “chase one another back and forth.”^[33] However, the difference between them can have a monumental impact on the outcome of textual interpretation. For example, suppose the owner of a company has directed the manager to fill a job opening for a widget salesman.^[34] There are two final candidates, (1) a qualified prospective employee with an extensive resume in widget sales; and (2) the owner’s nephew, who recently graduated from art school. The owner, who has spent the past several weeks claiming that the nephew would be an excellent widget salesman if he just set aside his art and got serious, directs the manager, without winking or other nonverbal alteration, to “hire the best person for the job.” What should the manager do? An expectation originalist manager would hire the nephew because the owner’s specific meaning of “best person” is the one who is the owner’s nephew. A semantic originalist manager would hire the qualified prospective employee because the generally accepted public meaning of “best person” is the one who is more qualified.^[35]

Though one might argue the manager’s wisest course is to honor the owner’s original intent and hire the nephew, both Dworkin and Justice Scalia outright reject expectation originalism.^[36] Dworkin’s views on originalism have changed over time and are difficult to pin down.^[37] Some scholars maintain that the difference between Dworkin and Justice Scalia’s respective positions “is just one of semantics.”^[38] The line where these two legal giants agree is fuzzy and that is, in part, due to a disagreement about what the other’s position is in the first place. Though Justice Scalia called himself a semantic originalist, Dworkin did not accept Justice Scalia’s jurisprudential reasoning as an example of strict semantic originalism.^[39]

This definitional disagreement is most prominent in the distinction between “abstract” and “concrete” terms. Abstract terms are intangible, such as the word “cruel” in the Eighth Amendment.^[40] Concrete terms are “obviously nonaspirational prescriptions . . . [like] jury trials in suits at common law for more than twenty dollars.”^[41] Under Justice Scalia’s version of semantic originalism, all constitutional terms, whether abstract or concrete, should be “dated” by looking at the public meaning at the time of enactment.^[42] However, Dworkin argued that only concrete terms can be dated and abstract terms are better interpreted through principle.^[43]

According to Dworkin, there are only two ways of viewing abstract terms: (1) abstract and principled or (2) fixed and dated.^[44] First, the term could be an abstract principle meant to include all meanings as they change over time.^[45] Dworkin thought this view particularly problematic because it requires individual judgment that is not measured by objective analysis.^[46] This produces the very kind of judicial overreach that originalism was created to avoid.^[47]

Second, the term could be fixed in time to mean what the public actually considered and forbid.^[48] For example, the fact that capital punishment was allowed in 1791 is all the proof needed to show that capital punishment does not fit the definition of “cruel” under the Eighth Amendment.^[49] Additionally, modern forms of torture would not fit the definition of “cruel” because they did not exist in the eighteenth-century general public understanding.^[50] A Second Amendment “fixed and dated” interpretation would restrict the individual gun right to what the Founders themselves would have considered “arms.” This creates a problem when modern advances are so removed from the original idea that reasonable people could question whether the original public meaning encompasses it. For example, the modern .950 JDJ bullet is the size of a human hand and weighs about 811% more than a Revolutionary War-era musket ball.^[51] Would the eighteenth-century public have considered the JDJ a bullet or a cannonball? Or is it possible their imagination could not comprehend such a change?^[52] Regardless of the answer to these questions, these thought experiments are problematic because they usually mean the modern person is always in the position of selecting the defining characteristics of an idea and only retroactively applies them to the historical public’s mindset.

Justice Scalia rejected both views and accused Dworkin of creating a “false dichotomy . . . which caricatures [his] sort of originalism.”^[53] Instead, Justice Scalia took an abstract and dated approach. According to Justice Scalia, abstract concepts like “cruelty” can still be dated by the “moral perceptions of the time.”^[54] One major difficulty with this interpretation is that it does not account for terms that have multiple public meanings, an especially commonplace occurrence with abstract terms. For example, the sentence, “I never said she stole my money,” has seven different possible meanings, all based on tonal emphasis.^[55] In a historical context, there is no reliable way to determine which of these seven meanings counts as the “moral perceptions of the time.” History happens “higgledy-piggledy,” and it is nearly impossible to select just one accurate public meaning from a historical text.^[56] Doing so can require delving into considerations of intent that both Dworkin and Justice Scalia rejected as expectation originalism or retroactively imposing the moral perceptions of the majority. Often, differences in meaning fall along cultural or generational lines.^[57] Thus, picking a public meaning requires picking one dominant, majority culture. The natural consequence is that important minority voices are retroactively silenced and excised from the historical public.

Justice Scalia never addressed this difficulty with the “abstract and dated” view. He believed the most common “moral perception” would usually surface on its own.^[58] But Dworkin did not buy it. According to Dworkin, Justice Scalia contradicted himself with his own words, “[W]hat the Eighth Amendment enacts is ‘the existing society’s assessment of what is cruel. It means . . . what we [that is to say the Framers and their contemporaries] consider cruel today.’”^[59] Dworkin contended that this assertion was evidence that, in practice, Justice Scalia took an abstract and principled view.^[60] This is contradictory because Justice Scalia professed to be steadfastly against the abstract and principled view.^[61] In Dworkin’s opinion, Justice Scalia’s “constitutional practice has abandoned the fidelity [Justice Scalia] preaches.”^[62] Given Justice Scalia’s position, it is unsurprising that Heller is an extremely originalist opinion that eschews balancing tests.^[63] But for those who agree with Dworkin, Justice Scalia’s contradictory originalism is highly relevant to understanding the logic behind the Heller Court’s choice of the common-use test over other, arguably more originalist, approaches.

B. The Conservative Nuance

Equally important to the formation of the Heller opinion is that Justice Scalia was politically conservative.^[64] Though often associated with conservative politics, originalism is not necessarily a straight and narrow path to conservative results.^[65] Justice Ketanji Brown Jackson is also an originalist and yet is widely considered a liberal judge.^[66] Arguably, the most straightforward application of semantic originalism to the Second Amendment would have resulted in an interpretation limiting the right to bear arms to only those types of arms in the Framer’s original conception of a weapon.^[67] However, conservatives generally believe the Second Amendment right should apply to modern weapons.^[68] And the role conservative lobbyists from the National Rifle Association played in the Heller decision cannot be overlooked.^[69]

Though originalists claim that this philosophy is the best path to judicial neutrality because it is always pure, objective, and non-partisan, some scholars believe unspoken conservative bias pulls the levers behind the curtain of originalist opinions like that in Heller.^[70] It is against this background of conservative values and the semantic originalist doctrine that the Heller Court examined various tests to interpret the Second Amendment’s enumerated right to bear arms.

III. The Rejected Heller Tests

The Founding Fathers enumerated the right to bear arms in the Second Amendment.^[71] For most of American history, this right was seen as a public right, not the personal right of self-defense,^[72] but that changed in District of Columbia v. Heller. Because no right is absolute, the Court needed a judicial test to define the limits of the Second Amendment as an individual right to own and carry weapons. Before settling on the common-use test, the Heller majority briefly considered two other approaches before ultimately rejecting them both.^[73] The first was an unfair and confusing dismissal of what should have been a meritorious option to a semantic originalist. The second rejection arose from a much more understandable, though ultimately flawed, assumption that interest balancing is an unequivocally and completely inappropriate approach to enumerated rights.

A. The “Frivolous” Pure Originalist Approach

Though the Heller opinion is one of the most obvious originalist opinions ever written by the Supreme Court,^[74] the majority immediately and impudently rejected as “frivolous” what is arguably the purest semantic originalist approach to the Second Amendment.

Some have made the argument, bordering on the frivolous, that only those arms in existence in the [eighteenth] century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. ^[75]

Far from “frivolous,” the eighteenth-century weapons limitation approach has considerable merit.^[76] It is the purest form of “fixed and dated” semantic originalism. On its face at least, the eighteenth-century weapons limitation seems to comport exactly with semantic originalism by interpreting the term “arm” by its original public meaning.^[77]

Additionally, the justifications given in comparison to the First and Fourth Amendments are not so unimpeachably congruent as to justify an out-of-hand dismissal. In a constitutional context, Justice Scalia’s “abstract and dated” semantic originalism is based on the idea that the framers “embed[ed] in the Bill of Rights their moral values.”^[78] This is where Justice Scalia finds “the moral perceptions of the time” which he contends define abstract terms like “cruelty.”^[79] Like the term “cruel,” the terms “communication” and “search” are abstract.^[80] First and Fourth Amendment jurisprudence is littered with Supreme Court cases trying to pin down what exactly is or is not a “communication” or a “search,” and often the answer is: “It depends.”^[81] But there is less gray area when it comes to the term “arm.”

Even if Justice Scalia’s “abstract and dated” view has merit, it is contradictory to apply this approach to the Second Amendment because an “arm” is a concrete term. An “arm” is arguably less abstract than the comparable terms in the First and Fourth Amendments. For example, you could take a collection of objects and sort them into “arm” and “not arm” piles in a way that is just not possible with an abstract idea like “search.” An “arm” is much more similar to the “very concrete and hence obviously nonaspirational prescriptions that the Bill of Rights contains—‘jury trials in suits at common law for more than twenty dollars,’ followed by ‘all men are created equal,’ followed by ‘no quartering of troops in homes.’”^[82] Much like a “jury trial” or “troops,” an “arm” is a concrete, tangible object.

However, the Heller Court compares the “abstract and general terms” in the First and Fourth Amendments to the more concrete term “arm” without any further discussion.^[83] Heller’s failure to draw distinctions between the First, Second, and Fourth Amendments lends credence to the idea that Heller’s “frivolous” originalist test was, in fact, the most appropriate approach for semantic originalists, or at the very least merited more thorough consideration.

1. The First Amendment Distinction

There are two important distinctions between the First and Second Amendments. First, the First Amendment has a unique historical context. Second, the protection of “communications” deals with the content, not the form of speech.

First, many scholars have noted, “There was no generally accepted understanding of the right of free speech on which the framer could have based a dated clause.”^[84] The original public meaning of speech, therefore, is much harder to pin down because the eighteenth-century public had significantly varied and changing definitions of the right to free expression.^[85] While not agreeing completely, Justice Scalia does admit that the First Amendment leaves “some of the uncertainties of the current state of the law to be worked out in practice.”^[86] Thus, the First Amendment right to speech has at least some unique exceptions to the general semantic originalist rule of time-dating, distinguishing it from other Amendments. Perhaps the Heller Court could have concluded that this distinction is minimal in practice. But at the very least, the unique historical context of the First Amendment merited a discussion, and the Court failed to provide any analysis whatsoever.

The second distinction has to do with the difference between content and forms of speech. The First Amendment does not mention “forms of communication” as the inattentive Heller reader might assume from the above passage.^[87] Instead, the First Amendment protects the content of speech.^[88] The Supreme Court has held that the First Amendment is a protection of ideas, not of the means of expression.^[89] For example, in R.A.V. v. City of St. Paul, Justice Scalia explained that government restrictions on “fighting words” are constitutionally permissible because the mode of expression is “essentially a ‘nonspeech’ element of communication.”^[90] The government does not run afoul of the First Amendment by placing reasonable time, place, and manner restrictions on forms of communication, as long as the restrictions are content-neutral and “leave open ample alternative channels for communication.”^[91] Thus, while the content of speech is still protected by the First Amendment even when expressed on the Internet, the form itself is not protected—modern or not. And while it would likely not be permissible to ban the entire Internet, the government could constitutionally enact a wide range of content-neutral limitations on this modern form of communication.^[92]

2. The Fourth Amendment Distinction

On the other hand, the Supreme Court has suggested that Fourth Amendment searches can be limited to historical forms in some contexts. In Kyllo v. United States, another majority opinion written by Justice Scalia, the Court held that the Fourth Amendment “assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”^[93] In a famous concurrence, Justice Samuel Alito pointed out that there are many modern forms of searches that are not analogous to historical cases.^[94] In the same way that Justice Alito doubted the capabilities of a GPS tracker were analogous to the capabilities of a “constable secreted . . . somewhere in a coach,”^[95] a machine gun is doubtfully analogous to any late eighteenth-century weapon. For example, a succession of men reloading a series of single-shot pistols for a single shooter would still not come close to the capabilities of the modern machine gun. If, as Justice Scalia argued, a Fourth Amendment search is limited only to “what was deemed an unreasonable search and seizure when it was adopted,”^[96] then why shouldn’t the Second Amendment also be limited to what was deemed to be an “arm” when it was adopted?^[97] And why shouldn’t the right to bear arms be constrained to the same limits of credibility as outlined by Justice Alito?

Whatever the answer to these questions, it is clear from the Heller opinion that the “fixed and dated” semantic originalist approach to an eighteenth-century weapons limitation is not the winning test, at least for the Second Amendment. The outright dismissal of the “frivolous” test is vital to understanding the majority’s ultimate choice: the common-use test. In that light, it becomes easier to understand why the Heller Court presents the common-use test as the only permissible originalist approach to enumerated rights, even though it is subject to substantial weaknesses.

B. The Means-End Interest-Balancing Approach, Unsurprisingly Rejected.

Interest-balancing is a form of judicial analysis that weighs an individual’s interest in a legal right against a particular governmental interest, which can include broad public health and safety concerns as well as more mundane interests such as administrative burdens or monetary costs.^[98] The type of interest-balancing that semantic originalists like Justice Scalia reject is sometimes called means-end balancing and, most often, refers to the three tiers of scrutiny: rational basis, intermediate scrutiny, and strict scrutiny.

For decades, the Supreme Court commonly adjudicated government regulations of fundamental rights with a strict scrutiny interest-balancing test.^[99] For example, the Court held that the government’s interest in promoting equal rights among the sexes outweighed the interest a private corporation had in preventing women from becoming voting members, despite the First Amendment right to assembly.^[100] The logic behind the interest-balancing approach is rooted in history. Because the Founding Fathers’ purpose was to avoid the government corruption experienced by colonials before the Revolutionary War, the purpose of enumerating individual rights in the Constitution was not to give those rights to people, but rather, to restrict and describe how the government imposes regulations on the people.^[101]

The Heller court took a different stance, rejecting all forms of interest-balancing tests:

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.^[102]

But this passage simply cannot mean what it seems to assert on its face, that an interest-balancing approach has not been applied to enumerated rights in any context—because that is just not true. The Supreme Court, including members of the sitting court in Heller, has issued multiple opinions that balance governmental interests against an individual’s interest.^[103] Justice Scalia—the Heller author himself—sat with the majority on many other cases that used an interest-balancing approach to enumerated rights cases.^[104] Thus, despite the contradiction, it would be highly unlikely the Heller majority was simply unaware of these decisions.

To understand this contradiction, it is important to look at the fundamental nature of enumerated rights. Most individual rights enumerated in the Constitution are also fundamental rights.^[105] The Heller opinion specifically coded the Second Amendment as a fundamental, enumerated right.^[106] Semantic originalists view fundamental, enumerated rights as an “abstract and general reference[ ] to extant rights and freedoms possessed under the then-current regime.”^[107] Under this philosophy, interest-balancing tests may seem inappropriate because the framers balanced them in the past. For example, though on its face the text of the First Amendment would seem to grant an absolute right to free expression,^[108] the government, during this period, still regulated aspects of speech, such as libel or obscenity, because the grant of free speech inherently included exceptions for libel and obscenity.^[109] Thus, the Bill of Rights came pre-balanced, and any modern attempts at balancing impermissibly interfere with strong-sense individual rights.

It is unsurprising then, that the Heller majority rejected the Court’s long-held practice of interest balancing.^[110] During oral arguments of the Heller case, Chief Justice Roberts seemed to think that interest-balancing would not be necessary in the Second Amendment context because the historical aspects of the common-use test cover the full scope of the enumerated right.^[111] However, this has not proven to be the case. Most lower courts have found the Heller guidance unworkable, and instead, have employed the two-part interest-balancing test originally proposed in Justice Breyer’s dissent.^[112]

The Heller majority’s stance on interest-balancing at least makes more sense, and the discussion is slightly lengthier than the out-of-hand dismissal of the “frivolous” eighteenth-century weapons limitation. But not all versions of interest-balancing are foreclosed by semantic originalism. The Heller Court’s chosen test, the common-use test, is itself an unnecessarily restrictive form of an interest-balancing test.

IV. Heller’s Chosen Tests

A pure semantic originalist would have embraced the eighteenth-century weapons limitation. Yet, if the term “arms” was interpreted to include only the arms available at the time of enactment, it would exclude from the Second Amendment many modern guns and weaponry that are popular today, including the handgun at issue in Heller.^[113] This was a problem for conservatives and gun lobbyists.^[114] The Heller majority’s contradictory approach solved this problem, engaging the same twist of logic that Professor Dworkin described as “abandon[ing] the fidelity . . . preache[d].”^[115] The resultant test is best understood as one vague test (the common-use test) and an additional caveat allowing for specific exceptions (the non-exhaustive list). These tests preserve, at least facially, the semantic originalist commitment to constitutional interpretation without excluding so many modern weapons that the Second Amendment would border on meaningless.

A. The Common-Use Test and Its Criticisms

Based upon a single passage in the previous controlling Second Amendment decision, United States v. Miller,^[116] Heller’s common-use test asserts that the Second Amendment only protects weapons “typically possessed by law-abiding citizens for lawful purposes,” or, in other words, arms that are commonly used among the American people.^[117] Interest-balancing tests look at what rights a modern-day government can remove from under that umbrella, given a compelling interest, while the common-use test looks at the boundaries of the enumerated right as originally included under the umbrella of the Second Amendment.^[118] But the process of determining those boundaries involves a form of interest-balancing that, if expanded, could provide a more workable solution. However, the common-use test alone has not proven to be as objective or easy to apply as Justice Scalia originally thought.

The logic behind the common-use test is two-fold. First, gun laws in the eighteenth century placed some restrictions on the right to bear arms, including limits on weapon type and prohibitions on “dangerous and unusual weapons.”^[119] Second, the traditional militia was formed from a pool of men bringing arms “in common use at the time.”^[120] Therefore, the Second Amendment right to bear arms limited gun ownership rights to “the sorts of weapons protected were those ‘in common use at the time,’” as explored through an analysis of historical prohibitions.^[121]

The common-use test did not receive much attention in the Heller Court’s analysis.^[122] Still, the difficulties with the common-use test arise not from the Court’s inadequate explanation, but from untenable issues within the test itself.^[123] First, it is based on questionable historical facts and circular reasoning that lower courts struggle to implement. Second, it is subject to various instances of abuse from both the government and large corporations with deep pockets. Third, the application of what is “common” is constrained by subjective judicial experiences and unreliable data. Fourth, it conflicts with prior jurisprudence from its own proponents when applied in other areas of constitutional law. And fifth, these inadequacies create a significant circuit split, with some courts outright rejecting the common-use test altogether.^[124]

1. Flaws in Reasoning and Historical Analysis

The common-use test is arguably circular because it supposes that permissible government regulation is based solely upon what existing historical regulations permitted.^[125] It assumes its own conclusion. The government can regulate only uncommon arms, but uncommon arms are those that are regulated. Circular reasoning is a logical fallacy that weakens an argument, and the Supreme Court has long viewed it with distaste.^[126]

Additionally, many scholars have pointed out flaws in Heller’s historical analysis that underscore the circular nature of the test.^[127] For example, the 1792 Militia Act directly conflicts with Heller’s assertion that the militia relied heavily on soldiers bringing their personal common-use weapons—one of the foundational pieces of logic supporting the common-use test.^[128] Many other scholars have reviewed the historical analysis in depth, but those arguments are not the focus of this Note.^[129] It is sufficient to note that there is no consensus among historians about the Founder’s view of the right to bear arms, and it is far from certain that Heller’s historical analysis is an accurate reflection of the Founding Father’s intent or the public meaning of the time.^[130]

2. Ripe for Abuse

The common-use test is also ripe for abuse. If getting many people to commonly use a particular weapon is the key to fitting it under the umbrella of the Second Amendment’s protection, it creates a strong incentive to strong-arm the market. A gun-manufacturing company with deep pockets has the motivation and the means to inflate its marketing budget, energize its lobbyists, and manipulate the law.^[131] The same flood-the-market strategy that turned a rock into a popular pet----and a multi-million-dollar industry^[132]----could also turn a machine gun into the most popular weapon in common use.^[133]

This notion has not gone unnoticed by gun manufacturers.^[134] Additionally, because the Heller Court relied on manufacturing data to support its common-use analysis, gun manufacturers do not even have to put much effort into making new weapons popular, as long as the guns are manufactured in abundance in the marketplace.^[135] This race to flood the market also drastically reduces gun manufacturers’ incentive to develop new safety features.^[136] For example, the National Rifle Association has expended many resources to prohibit the implementation of new, smart-gun technology, which could protect consumers against youth suicides, accidental discharges, gun thefts, and victimization with their own weapons.^[137]

The inherent nature of the common-use test creates opportunities for abuse from regulators and gun manufacturers. Technology is constantly developing and the fear of the next revolution in firearm technology results in a race to the bottom on both sides of the equation. In some places, the fear that marketing will artificially create common use, and thus take it out of the sphere of regulation, has prompted a governmental response of proactive and excessive regulation of every new development.^[138] State governments can use the common-use test to manipulate the law in ways that would produce quintessentially unconstitutional, unilateral power.^[139] Because the Heller Court used national data in its common-use analysis, a weapon that is common in just a handful of populous states can overpower the desires of smaller states.^[140] This process could result in the invalidation of some states’ safety regulations, providing gun manufacturers with an easy workaround in more gun-restrictive states.^[141] It could allow large states to overpower the will of smaller ones.

3. Subjective Judicial Power

Justice Scalia defended the common-use test by claiming it as the more objective option because it “depends upon a body of evidence susceptible of reasoned analysis.”^[142] Aside from the fact that a circular test is hardly a “reasoned analysis,” the common-use test has proven to be rather subjective in practice. Though the Heller majority criticized Justice Breyer’s proposed interest-balancing test for giving too much power to judges,^[143] the common-use test is vulnerable to the same weakness. The common-use test is subjective, at least in part, because it “allow[s] courts to define the level of generality at which a weapon’s commonality will be measured.”^[144] And judges are required “to pick and choose between different points of largely suspect data in deciding how to measure common use.”^[145]

Discretionary appellate courts have a unique opportunity for subjective manipulation due to the inherent ambiguity in the common-use test.^[146] As one scholar pointed out, the decision in Heller would have come out differently under the common-use test if the Supreme Court had merely waited to review the statute imposed in the District of Columbia.^[147] This judicial manipulability is especially sobering when one considers that the judicial bench is still largely male and white—not representative of the American population as a whole.^[148] Thus, there is a serious risk of backlash for people of color and other under-represented communities who might experience “common” differently from the average judge.

Admittedly, other interest-balancing tests are susceptible to this same weakness.^[149] Judicial overreach is a concern under any test. The susceptibility to subjective judicial power is neither an insurmountable nor unique problem to the common-use test. But it is contradictory for advocates of the common-use test to claim that it is superiorly objective.^[150]

4. No Apparent Difference to the Reasonable Expectations Test

The same Justices who joined the majority opinion that made the common-use test a reality for the Second Amendment also protest key aspects of the common-use test in other constitutional contexts. Justice Scalia’s majority opinion in Heller was joined by Chief Justice Roberts, Justice Kennedy, Justice Thomas, and Justice Alito.^[151] Yet these four Justices are also among the fiercest detractors of the reasonable expectations test under the Fourth Amendment.^[152] This is curious because the reasonable-expectations test is substantially similar to the common-use test.^[153] What is a reasonable expectation, after all, if not an expectation that is in common use?

Though the reasonable expectations test, as first presented by Justice Harlan, purports to have an objective prong,^[154] it is subject to the same weaknesses that plague the common-use test.^[155] The reasonable expectations test is circular, in that, a permissively “reasonable” expectation of privacy depends solely on what the common person experiences as a reasonable expectation of privacy.^[156] Because the reasonable expectations test thus assumes its own conclusion, it is also subject to the same types of abuse from marketing campaigns.^[157] Additionally, judicial determinations of “reasonableness” are subject to the same subjective application as “common.”^[158] And what is commonly reasonable is vulnerable to the kind of manipulation that psychologists call the foot-in-the-door phenomenon.^[159] What might be unpalatable today could easily become reasonable tomorrow if the public is introduced to the idea in incremental steps.^[160]

Thus, the only difference between these two tests is that the common-use test more readily deals with tangible items while the reasonable expectations test deals with the more abstract concept of privacy. Yet, the common-use test was created with the view that “arms” is an “abstract and dated” term, just like the reasonable expectations test. It is hard to see—and these opinions certainly do not explain—why some Justices could embrace the common-use test and shun the reasonable expectations test.^[161] Yet Justice Scalia,^[162] Chief Justice Roberts,^[163] Justice Kennedy,^[164] Justice Thomas,^[165] and Justice Alito^[166] have all presented protests, with varying degrees of ferocity, against the reasonable expectations test, both before and after the publication of the Heller opinion.^[167]

5. Confusion in the Lower Courts

While Justice Scalia often championed the common-use test as a bright-line rule that is easy to apply, the opposite has proven true. Legal scholarship is prolific with problems with the common-use test and Heller’s otherwise lacking guidance.^[168] The confusion is largely because the common-use test leaves open too many undecided questions, is vague, and does not fully explain the original public meaning of Second Amendment terms.^[169] No matter how much Supreme Court Justices and the public at large wish it to be so, it has proven impractical to reliably “divine unambiguous historical truth from mystic séances with the spirits of 1787.”^[170]

Lower courts have also struggled to square the common-use test with the Court’s larger jurisprudence on circular reasoning.^[171] While the extent of the struggle varies by circuit, most lower courts simply note the logical fallacy and continue down the common-use path.^[172] Some courts, however, have attempted to expand the common-use test to contemplate whether the weapon in question would have been in common use if regulations concerning it had never existed.^[173] This approach, while addressing the circular reasoning issue, is subject to other concerns—namely its large dependence on judicial speculation and unreliable data projections.^[174] However, this circuit split is not the focus of this Note. It suffices to point out that a significant number of lower courts have not consistently applied the common-use test after Heller, and that scholarship on the subject is plentiful and detailed.^[175] This confusion problem, and the dissonance among lower courts, has not been resolved by the Court’s more recent decision in New York State Rifle & Pistol Ass’n v. Bruen.^[176]

B. Heller’s Non-Exhaustive List of Permissible Limitations

In addition to the common-use test, the Heller Court explained that its interpretation of the Second Amendment does not change the prohibitions that have been in place for centuries.^[177] The Court listed a few of these prohibitions but made a point to emphasize that the list is non-exhaustive.^[178] Though declining to provide the specific historical justifications for these permissible regulations,^[179] the Court implied semantic originalism was the reasoning behind it.^[180] Additionally, some scholars have pointed out that the non-exhaustive list sometimes directly conflicts with the common-use test, and the Court offers no guidance on how to reconcile these two parts of the Heller opinion.^[181]

Heller’s list, in practice, has proven difficult to implement and defend.^[182] Beyond this non-exhaustive list, the only guidance the Court gives to lower courts is the common-use test, which has also proven problematic.^[183] However, when looking at the concerns of the semantic originalist philosophy: another option appears. A narrow form of the interest-balancing test can still preserve the goals of originalism that underly the Heller opinion and create a more workable test for lower courts to follow.

V. The Originalist Interest-Balancing Test

Despite Justice Scalia’s claim in Heller, originalism is not inherently hostile to interest-balancing tests.^[184] The semantic originalist interest-balancing test is not only possible but also a natural application of Justice Scalia’s approach to rights as “abstract and dated.” If the pure “fixed and dated” originalist approach to enumerated rights is to be dismissed as “frivolous,” then interest-balancing is not only the appropriate measure for regulating enumerated rights; it is essential. A simple reframing of existing ideas allows for the modern balancing of historical interests that still gives enumerated rights a strong sense of protection. This is the common-interest test.

A. The Common-Interest Test; Who, What, and Where.

Semantic originalism is not diametrically opposed to interest-balancing tests because the measure of the “public meaning” is a balance of interests. The originalist’s problems with means-end tests are not modern interests; what an originalist disdains are modern balances.^[185] Justice Scalia objected to Justice Breyer’s attempt to “conduct . . . anew” the interest balancing that was contemplated and decided upon the adoption of the Second Amendment in the eighteenth century.^[186] But as the common-use test highlights, the interest can be “anew” while the balance preserves the original public meaning.^[187] Instead of applying a semantic originalist view to the result, originalists should focus their philosophy on the equation. This approach, which this Note terms the common-interest test, would preserve the original public meaning by considering the reasoning behind eighteenth-century balancing while allowing the result to change with time.

Unlike traditional means-end balancing, the common-interest test borrows the balance from history and tradition----keeping the answer but changing the variables in the equation.^[188] The common-use test is itself a version of the common-interest test. Heller’s interpretation of the Second Amendment and the common-use test can be distilled to the equation:

$$Regulation + Muskets = Prohibited.$$

Justice Scalia rationalized that the reason the Founders spoke of muskets was that they were the most used weapon.^[189] Thus, because today’s most used weapon is the handgun, Justice Scalia substituted handguns into the equation without changing the balance:

$$Regulation + Handguns = Prohibited.$$

The same equation-style approach can and should be used to interpret other parts of individual, enumerated rights. Renowned scholar Eugene Volokh emphasized the importance of distinguishing between the who, what, and where of Second Amendment restrictions.^[190] According to Volokh, individual rights regulations can target three areas: certain classes of people (the “who”), specific categories of weapons (the “what”), and particular locations (the “where”).^[191] The common-use test is a measure of the “what.” There is no originalist reason why the approach should not also be applied to the “who” and “where.” Applying this style of historical interest-balancing test to all three categories would solve many of the inconsistency problems that lower courts currently wrestle with.

The “who” category provides a good illustration of the common-interest test. Suppose the founders concluded in the eighteenth century that the government’s interest in X properly outweighed the Second Amendment interests of individuals type Z:

$$Second\ Amendment\ Right + Individuals\ Z < Government\text{'}s\ X\ Interest.$$

If a historical analysis showed that the eighteenth-century government’s interest in X was rooted in the same purpose as the modern-day interest in A, and that eighteenth-century individuals type Z, were the proper equivalent to the modern-day view of individuals type C, then it would still be an originalist argument to posit that the Second Amendment right to A is properly outweighed by the government’s interest in C. In other words, if X>Z, X=A, and Z=C, then it should follow that A>C:

$$Second\ Amendment\ Right + Individuals\ C < Government\text{'}s\ A\ Interest.$$

While this approach weighs two modern interests, the balancing itself is originalist because the equation preserves the originalist values of the eighteenth century.

For example, prevalent in the late-1800s, the Black Codes outlawed gun ownership for African Americans and were widely considered to be an expression of the Second Amendment’s meaning.^[192] Admittedly, the justifications given for the Black Codes were likely pretextual substitutions for unadulterated racism.^[193] But originalists do not consider the validity of historical laws in a modern context.^[194] While the Heller Court was quick to point out that the Civil Rights Act reversed the Black Codes and preserved the Second Amendment right, it failed to properly acknowledge the significant (and historically closer to the founding), original interest balancing that concluded African Americans’ (individual type Z) interest in the Second Amendment was outweighed by a government interest in protecting the public from dangerous individuals and preserving white supremacy (X).^[195] That equation is still an original public meaning of the right to bear arms, even though the variables no longer align with societal interests. ^[196] This equation approach best preserved the “abstract and dated” approach championed by Justice Scalia because the balance is “dated” but the interest is “abstract.”^[197]

Another example from First Amendment jurisprudence illustrates how the common-interest test allows for modern interests in the “where” category. In the eighteenth century, among the most important public fora for First Amendment speech were public streets and sidewalks because they were “central gathering places and arteries of transportation.”^[198] However, modern-day sidewalks have significantly less public-gathering value, and other places, such as shopping malls, have “largely replaced the gathering places of old.”^[199] Under the common-interest test, the original public meaning of the First Amendment fora was not the result (sidewalks), it was the reasoning (any place that is central for gathering and transportation).^[200] If the Court concludes shopping malls are similarly central places to gather, then shopping malls could be public fora under the First Amendment even though they did not exist in the eighteenth century.

The common-interest test is still vulnerable to the same types of judicial manipulation as discussed in the common-use test and traditional, means-end balancing tests.^[201] A less discerning judge might be able to find false equivalences to support their position. But this vulnerability is unavoidable in every test other than the “frivolous” fixed and dated version of semantic originalism. Heller’s common-use test certainly is not immune.^[202] The only difference between the common-use test and the common-interest test is that the common-interest test is more widely applicable and allows for the consideration of more modern interests that did not exist in the eighteenth century.

B. Bruen’s “Where” Common-Interest Test

Justice Thomas endorsed the common-interest idea in New York State Rifle & Pistol Ass’n v. Bruen: “Much like we use history to determine which modern ‘arms’ are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding.”^[203] In Bruen, the Court asked “whether the two regulations are ‘relevantly similar.’”^[204] When a court examines the similarities between historical and modern regulations, the two “‘central’ considerations” are whether (1) they “impose a comparable burden on the right;” and whether (2) “that burden is comparably justified.”^[205] The Court explained that this comparability endeavor involves an analysis of the regulation’s purpose through historical analogy, much like the common-interest test.^[206]

The Bruen case concerned concealed carry permits and much of the opinion discussed the importance of the place—the “where.” In the eighteenth century, weapons were prohibited in government buildings, such as courthouses or legislative assemblies, but very few other places.^[207] A pure semantic originalist opinion would restrict modern Second Amendment regulations to just those types of buildings as “fixed and dated.” But Justice Thomas is an originalist judge and follows closely in the footsteps of Justice Scalia. His approach in Bruen also rejected the “fixed and dated” interpretation.

In the same way that Heller defined “gun” by its common-use purpose, Bruen did not confine its analysis to just those specific places in the historical record. Instead, Justice Thomas drew from Heller’s non-exhaustive list and created a “sensitive places” category that could include schools and other areas at high risk for gun violence.^[208] Essentially, Bruen introduced the common-interest test for places, though the Court did not use that terminology. The historical equation in Bruen was:

$$Public\ Safety\ Interest + Courthouse > Concealed\ Carry\ Right.$$

Justice Thomas found that the historical purpose of the courthouse exception was rooted in “sensitive places.” Thus, any modern sensitive place could be substituted in the original equation without conducting the balance “anew” and:

$$Public\ Safety\ Interest + Modern\ Sensitive\ Place > Concealed\ Carry\ Right.$$

This is a perfect example of the common-interest test as applied to the “where” category and an illustration that semantic originalism is not as diametrically opposed to interest-balancing as Justice Scalia said. Bruen’s “where” common-interest test highlights the important ways interest-balancing can be useful to an originalist court.

Bruen, like Heller, did not offer a complete historical analysis of the Second Amendment.^[209] And though Bruen’s analysis was a common-interest approach, Justice Thomas did not outline a complete rule that covered all three of Volokh’s categories. This has proven problematic in lower courts. Bruen has already begun to cause the same stirrings of lower-court confusion as Heller.

For example, in the 2022 case of United States v. Perez-Gallan, District Court Judge David Counts recently applied the reasoning in Bruen to a law prohibiting gun ownership in situations of domestic violence.^[210] Judge Counts treated the Second Amendment as the “regulatory straightjacket” that Bruen claimed it was not.^[211] Because Judge Counts found no “dead ringer” domestic violence regulations, he concluded that there was no “history and tradition” to uphold a federal domestic violence law.^[212] Judge Counts thought his “straightjacket” interpretation of Bruen was all the precedent required.^[213] But he did consider some historical analogies, including surety statutes, “‘dangerous’ people” regulations, the “politically disloyal,” and other constitutional provisions.^[214] His approach, however, did not consider the purpose of the regulations, it only involved a straight comparison. Judge Counts thought that because none of these historic regulations specifically addressed the “societal problem” of domestic violence, they did not count as relevant history and tradition.^[215]

Judge Counts reasoned that because domestic violence was a “societal problem” in the eighteenth century and historical statutes addressed the problem differently, there was no support for these modern domestic violence laws.^[216] But schools existed in the eighteenth century too, yet schoolyard gun regulations are permissible under Bruen because the purpose of gun regulation on school grounds is to protect “sensitive places.”^[217]

Just as the Bruen Court expanded the “where” to include sensitive places, Judge Counts should have considered the “who” to include domestic violence offenders. The purpose of domestic violence regulations is to stop dangerous persons. As Justice Amy Coney Barret said, “founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety.”^[218] This is undisputed evidence that the United States has a history and tradition of removing weapons from dangerous persons. But Judge Counts dismissed the dangerous person legislation analogy because he did not think “the colonies considered domestic abusers a ‘threat to public safety.’”^[219] Judge Counts applied a metric in the exact way Bruen told courts not to.^[220] He botched the analogy of the regulation’s purpose, and the result was that violent abusers gained constitutionally protected access to deadlier methods of violence.

A Third Circuit case filed just six days after Judge Counts’s opinion makes the post-Bruen circuit split unavoidably apparent. In Range v. Attorney General of the United States, the Third Circuit upheld a federal law that prohibits welfare fraudsters from owning a firearm.^[221] The Third Circuit relied on Bruen in this case, yet its reasoning was markedly different from the Perez-Gallan case. The judgment was vacated in lieu of a rehearing en banc.^[222] But, if the district court reverses its decision, it will require overturning the plain text of the federal Gun Control Act.^[223] Regardless of the outcome of this case, Range is further evidence of the legal dissonance created by Heller and Bruen. Judge Counts asserted that the only question Bruen left unanswered was whether the “manicure [of] the Second Amendment’s landscape” should be accomplished “by scalpel or chainsaw.”^[224] But this is clearly not true.

As Justice Learned Hand once said, the severity of “evil” must be considered alongside “the [ ]probability of its occurrence.”^[225] Perhaps this is the concern that Justice Scalia took into account when the Heller court validated previous decisions and allowed for rifles like the M-16 to remain banned under the new Heller doctrine.^[226] After all, most gun violence is not caused by legally carried handguns.^[227] The Heller majority even asserted that the handguns at issue would have been protected under any sort of interest-balancing test.^[228] Domestic violence regulations should stand for the same reason that bans on M-16s and sensitive places regulations do not violate the Second Amendment. Enumerated rights evaluated under the who, what, and where categories with a common-interest approach protect vitally important public-safety interests while remaining true to the originalist ideal.

C. The Conservative Factor

The common-interest approach might be particularly appealing to conservative Justices. For example, many scholars believe Justice Coney-Barrett will aim to remove gun ownership restrictions for non-violent felons during her time on the bench.^[229] Felons of all types have faced firearm prohibitions since the 1600s.^[230] The Heller opinion specifically allows for “longstanding prohibitions on the possession of firearms by felons.”^[231] The Third Circuit relied on this straightforward similarity under its original Bruen analysis in the Range case.^[232]

But if the purpose of felony restrictions is protecting the public from the “who” of dangerous people, the common-interest test could potentially allow an interpretation of the Second Amendment that includes non-violent felons. The eighteenth-century, common law reasoning was that the risk of dangerous individuals harming Americans outweighed the balance of those individuals’ Second Amendment right to bear arms.^[233] If Justice Coney-Barrett were to combine this originalist-balancing conclusion with a modern investigation into the dangerousness of non-violent felons, according to an originalist understanding of dangerous, one possible result could be the repeal of those Second Amendment restrictions. And such a result could be reached by a majority originalist Supreme Court.

VI. Conclusion

Contrary to Heller’s assertion that all enumerated rights take the same anti-interest-balancing stance, competing views and philosophies have left the Supreme Court with an amalgamation of scattered and varied tests regarding the scope of enumerated rights over the centuries.^[234] The Court has applied some variation of interest-balancing tests to rights enumerated in the First, Fourth, Fifth, Sixth, and Fourteenth Amendments. If, as Professor Ronald Dworkin says, enumerated rights apply to all people equally, then Second Amendment jurisprudence must find a way to exist in harmony with this precedent.

Semantic originalism necessarily eschews all forms of interest-balancing tests, even if the literal fixed and dated interpretation is to be dismissed as “frivolous.”^[235] The Heller Court proposed the common-use test—a version of the common-interest test under the “what” category. Bruen legitimated this interpretation with Justice Thomas’s “where” common-interest approach to sensitive places. The common-interest test preserves the balancing equation according to the original public meaning but allows for more flexibility in the application of modern interests.^[236]

As the Supreme Court hears more enumerated rights cases, including Second Amendment cases, litigators should keep in mind the semantic originalist philosophy that underscores the constitutional interpretation of conservative Justices like Justice Scalia, Justice Thomas, and their followers. The common-interest test offers one alternative solution that preserves the balancing equation according to the original public meaning but allows for more flexibility in the application of modern interests. Considering the coming wave of lower court confusion that has already begun post-Bruen, a bright-line, categorical rule like the common-interest test is sorely needed in Second Amendment analysis and beyond. There is no other way to calm the enumeration conflagration that has dominated the American psyche and legal system for the past two decades.

Amanda Dorman

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1. Jud Campbell, Judicial Review and the Enumeration of Rights, 15 Geo. J.L. & Pub. Pol’y 569, 584 (2017).

2. Enumerated right, Black’s Law Dictionary (11th ed. 2019).

3. District of Columbia v. Heller, 554 U.S. 570, 592, 636 (2008).

4. See infra note 102 and accompanying text.

5. Heller, 554 U.S. at 626.

6. See infra Section IV.A.

7. Philip Hamburger, The Inversion of Rights and Power, 63 Buff. L. Rev. 731, 747–48 (2015).

8. Heller, 554 U.S. at 626.

9. Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942). See also Wood v. Moss, 572 U.S. 744, 757 (2014) (“It is equally plain that the fundamental right to speak secured by the First Amendment does not leave people at liberty to publicize their views ‘whenever and however and wherever they please.’” (quoting United States v. Grace, 461 U.S. 171, 177–78 (1983)).

10. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 387 (1821) (“[A] constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.”).

11. See Antonin Scalia, Response, in A Matter of Interpretation: Federal Courts and the Law 129, 147 (1997) (“[T]he passage of time cannot reasonably be thought to alter the content of [enumerated] rights.”).

12. See infra Section II.A.

13. See infra Section II.A.

14. Lawrence B. Solum, Semantic Originalism, Ill. Pub. L. & Legal Theory Rsch. Papers Series No. 07-24, 10 (Nov. 22, 2008), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120244 [https://perma.cc/KK4K-STHB].

15. Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. Legal Studs. 725, 730–31 (1998).

16. District of Columbia v. Heller, 554 U.S. 570, 627 (2008).

17. See infra Section IV.A.

18. See generally Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in The Tanner Lectures on Human Values (delivered at Princeton University, Mar. 8 & 9, 1995). See also Scalia, supra note 11; Ronald Dworkin, The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve, 83 Fordham L. Rev. 2221, 2228 (2015).

19. See Scalia, supra note 11 at 144–45; see also Dworkin, supra note 18, at 2228.

20. See Scalia, supra note 11, at 144–45, 148 (“[Professor Dworkin] quite entirely mistakes my position.”).

21. Participants in this debate included other renowned scholars like Gordon S. Wood, Laurence H. Tribe, and Mary Anne Glendon. See id. However, this Note will focus on Justice Scalia’s interactions with Ronald Dworkin that best illustrate Justice Scalia’s position on interest-balancing tests for enumerated rights.

22. District of Columbia v. Heller, 554 U.S. 570, 572 (2008); Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 Harv. L. Rev. 246, 249 (2008).

23. See generally U.S. Const.

24. Sunstein, supra note 22, at 249. For a fascinating discussion about the express originalist provisions in the Turkish Constitution contrasted with the American approach, see generally Ozan O. Varol, The Origins and Limits of Originalism: A Comparative Study, 44 Vand. J. Transnat’l L. 1239 (2011).

25. Ryan Fortson, Was Justice Antonin Scalia Hercules? A Re-Examination of Ronald Dworkin’s Relationship to Originalism, 13 Wash. U. Juris. Rev. 253, 282 (2021); see also Originalism, Black’s Law Dictionary (11th ed. 2019).

26. See generally Scalia, supra note 11. See also Hon. Robert G. Gibson, In Memory of Justice Antonin Scalia, 28 DuPage Cnty. Bar Ass’n Brief 16 (2016) https://www.dcba.org/mpage/vol280516art2 [https://perma.cc/MYA9-ZXFA].

27. There are multiple subcategories of originalism. See Fortson, supra note 25. However, this Note will only focus on the two subcategories most relevant to the Dworkin/Scalia debate: semantic originalism and expectation originalism.

28. Scalia, supra note 11, at 144; see also Dworkin, supra note 18.

29. Solum, supra note 14. Semantic originalism is also sometimes referred to as meaning originalism or new originalism. See Fortson, supra note 25, at 284–85.

30. Solum, supra note 14, at 10, 20 (citations omitted).

31. Dworkin, supra note 18, at 2228–29.

32. Id. at 2228.

33. Scalia, supra note 11, at 144.

34. This example is a slightly more colorful version of Ronald Dworkin’s own explanation. Ronald Dworkin, Comment, in A Matter of Interpretation: Federal Courts and the Law 115, 116–17 (1997).

35. In this light at least, Semantic originalism seems a lot like malicious compliance, a popular Millennial method of revenge. Malicious Compliance, Wikipedia, https://en.wikipedia.org/wiki/Malicious_compliance [https://perma.cc/FJ4U-VF84] (last visited Mar. 20, 2022).

36. Dworkin, supra note 18, at 2228–29.

37. See generally Jeffrey Goldsworthy, Dworkin As an Originalist, 17 Const. Comment. 49 (2000).

38. Fortson, supra note 25, at 306; see also Dworkin, supra note 18, at 2230–31 (noting that both himself and Scalia “argue for our constitutional interpretations by offering the best and most honest case we can for their superiority to rival interpretations, knowing that others will inevitably reject our arguments and that we cannot appeal to shared principles of either political morality or constitutional method to demonstrate that we are right.”).

39. Dworkin, supra note 18, at 2228–29.

40. Dworkin, supra note 34, at 121, 124.

41. Scalia, supra note 11, at 135.

42. Dworkin, supra note 34, at 122–23.

43. Id.

44. Id. at 122.

45. See id.

46. See id. See infra Section IV.A.3, for an explanation as to why nonobjective individual judgments are vulnerable to judicial manipulation and abuse.

47. Scalia, supra note 11, at 145.

48. Dworkin, supra note 34, at 123.

49. Scalia, supra note 11, at 145.

50. Id.

51. Compare .950 JDJ, Wikipedia, https://en.wikipedia.org/wiki/.950_JDJ#cite_note-Barnes2014-1 [https://perma.cc/F9EP-D9CY] (last visited Feb. 9, 2023), with Artifact Descriptions and Analysis, Palo Alto Battlefield, https://www.nps.gov/parkhistory/online_books/paal/thunder-cannon/chap7.htm [https://perma.cc/3M38-XEWA]. 8.2 (weight of JDJ bullet) – 0.9 (weight of musket ball) = 7.3 (difference in weights). 7.3 (difference in weights) ÷ 0.9 (weight of musketball) = 8.11 × 100 – 811% increase.

52. Pekka M. Kolehmainen, The Founding Fathers in the Temporal Imaginaries of Texas Gun Politics, in Up in Arms: Gun Imaginaries in Tex. 52, 63 (Benita Heiskanen et al. eds., 2022).

53. Scalia, supra note 11, at 145.

54. Id.; see also Brian Porto, The Rhetorical Legacy of Antonin Scalia, 43 Vt. Bar J. 28, 28 (2017).

55. “I Never Said She Stole My Money” Has Seven Different Meanings, Fascinator, https://factinator.com/i-never-said-she-stole-my-money/ [https://perma.cc/N6QH-GPLJ] (last visited Feb. 10, 2023).

56. Louis Menand, Gibbon’s Left Testicle, New Yorker, Apr. 18, 2022, at 65.

57. Id.

58. Scalia, supra note 11, at 145.

59. Dworkin, supra note 18, at 2229 (quoting Scalia, supra note 11, at 145).

60. Scalia highly disagreed with this assessment. See id.

61. Scalia, supra note 11, at 144.

62. Dworkin, supra note 18.

63. Lawrence Rosenthal, The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control, 92 Wash. Univ. L. Rev. 1187, 1191 (2015). Scholars have critiqued the idea of originalism since before it was so termed. See Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469, 472 (1897) (“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past . . . . [W]e even are in danger of making the role of history more important than it is.”).

64. Gibson, supra note 26.

65. Keith E. Whittington, Is Originalism Too Conservative?, 34 Harv. J.L. & Pub. Pol’y 29, 34 (2011) (“[O]riginalism proves to be an awkward and inadequate vehicle for rationalizing conservative policy results.”).

66. Debra Cassens Weiss, Justice Jackson Uses Originalism to Undercut ‘Conservative Juristocracy,’ ABA J. (Dec. 13, 2022, 8:59 AM), https://www.abajournal.com/news/article/justice-brown-jackson-uses-originalism-to-undercut-conservative-juristocracy [https://perma.cc/P53B-4HEH].

67. See infra Section III.A.

68. Erwin Chemerinsky, Putting the Gun Control Debate in Social Perspective, 73 Fordham L. Rev. 477, 483 (2004).

69. Michael Waldman, How the NRA Rewrote the Second Amendment, Politico (May 19, 2014), https://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment-106856/ [https://perma.cc/6X9K-N8GC].

70. Dworkin, supra note 18, at 2229 (“[Conservative originalists] must profess fidelity but feel bound, in practice, to disown it.”); see also Mary Ziegler, Originalism Talk: A Legal History, 2014 B.Y.U. L. Rev. 869, 869 (2014) (“For many scholars, originalism appears to have succeeded because it achieves results consistent with conservative values but promises judicial neutrality to the public.”). Professor Dworkin’s own political views seem to fall somewhere in the middle between extreme conservatives like Justice Scalia and liberals like Professor Tribe. See Dworkin, supra note 18, at 2229.

71. . U.S. Const. amend. II.

72. See United States v. Miller, 307 U.S. 174, 178 (1939).

73. District of Columbia v. Heller, 554 U.S. 570, 634 (2008).

74. Sunstein, supra note 22, at 246.

75. Heller, 554 U.S. at 582 (internal citations omitted).

76. The above passage illustrates one of Professor Dworkin’s most pointed criticisms of Justice Scalia’s originalism in practice. Dworkin, supra note 18, at 2229 (“Scalia, confronted with an account of what his constitutional position would presuppose if he were a semantic originalist, rejects that account as preposterous. But when, immediately after, he tries to state a view that is both faithful to the constitution’s text and consistent with his own constitutional attitudes, he is forced to state the very view he had just rejected. His theoretical stance is therefore contradictory.”).

77. See supra Section II.A; Solum, supra note 14.

78. Scalia, supra note 11, at 146.

79. Id. at 145.

80. See supra Section II.A.

81. See, e.g., Schenck v. United States, 249 U.S. 47, 52 (1919) (discussing the First Amendment); Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (discussing the Fourth Amendment).

82. Scalia, supra note 11, at 135.

83. District of Columbia v. Heller, 554 U.S. 570, 582 (2008); see infra note 107 and accompanying text.

84. Dworkin, supra note 34, at 124.

85. Id.

86. Scalia, supra note 11, at 147–48.

87. U.S. Const. amend. I; Heller, 554 U.S. at 582.

88. R.A.V. v. City of St. Paul, 505 U.S. 377, 392 (1992).

89. Id. at 385.

90. Id. at 386 (“[T]he exclusion of ‘fighting words’ from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a ‘nonspeech’ element of communication. Fighting words are thus analogous to a noisy sound truck: Each is, as Justice Frankfurter recognized, a ‘mode of speech.’” (citing Niemotko v. Maryland, 340 U.S. 268, 282 (1951)).

91. City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).

92. One could also make the argument that the “forms of communication” have not changed at all since the eighteenth century. The framers communicated orally, nonverbally, and through the written word. Brooke Harrison, How Alexander Hamilton Wrote His Way to the Top, Medium: Brave Writer (Jul. 6, 2020), https://medium.com/the-brave-writer/how-alexander-hamilton-wrote-his-way-to-the-top-5ebf9b28d042 [https://perma.cc/6CFE-ZFGJ]. Modern society is restricted to these same three forms of communication, at least until humans develop the capacity for telepathy. It could be argued that the fact that oral communication can be recorded, or the written word can be published online, has no bearing on the form of communication.

93. Kyllo v. United States, 533 U.S. 27, 34 (2001). Justice Scalia wrote the majority opinions for both Kyllo and Heller. See id. at 29; District of Columbia v. Heller, 554 U.S. 570, 572 (2008).

94. United States v. Jones, 565 U.S. 400, 420 (2012) (Alito, J., concurring).

95. Id. at 420 n.3 (“The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.”).

96. Minnesota v. Dickerson, 508 U.S. 366, 379–80 (1993) (Scalia, J., concurring) (quoting Carroll v. United States, 267 U.S. 132, 149 (1925)).

97. Under a “fixed and dated” semantic originalist approach, this limitation of “arm” at the time it was adopted would not restrict the Second Amendment right to weapons made in the eighteenth century or modern replicas. The relevant question would be whether the weapon’s type and level of power are substantially similar to the power of weapons that would have been considered arms in the eighteenth century. See Scalia, supra note 11, at 146.

98. Balancing Test, Black’s Law Dictionary (11th ed. 2019).

99. See, e.g., Schneider v. New Jersey, 308 U.S. 147, 161 (1939) (“[A]s cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.”); Fundamental Right, Black’s Law Dictionary (11th ed. 2019).

100. Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984); see also Gitlow v. New York, 268 U.S. 652, 670 (1925) (“[W]hen the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil, is not open to consideration.”).

101. Pildes, supra note 15.

102. District of Columbia v. Heller, 554 U.S. 570, 634 (2008).

103. See United States v. O’Brien, 391 U.S. 367, 376–77 (1968) (analyzing First Amendment symbolic speech); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980) (analyzing First Amendment commercial speech); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 256, 272 (1964) (analyzing First Amendment freedom of the press); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–32 (1993) (analyzing First Amendment freedom of religion); Barker v. Wingo, 407 U.S. 514, 515, 530 (1972) (analyzing Sixth Amendment right to a speedy trial); Terry v. Ohio, 392 U.S. 1, 21 (1968) (analyzing Fourth Amendment right against unreasonable search and seizure); New Jersey v. T.L.O., 469 U.S. 325, 337–40 (1985) (analyzing Fourth Amendment administrative searches); Mathews v. Eldridge, 424 U.S. 319, 332, 347–48 (1976) (analyzing Fifth and Fourteenth Amendment rights to due process).

104. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 316, 340 (2010) (finding that the strict scrutiny interest-balancing test is the appropriate measure of First Amendment right to political speech).

105. Fundamental rights are those that inherently and naturally belong to a person by virtue of their personhood. Fundamental Right, Black’s Law Dictionary (11th ed. 2019).

106. See Heller, 554 U.S. at 592 (“[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”).

107. Scalia, supra note 11, at 135.

108. U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech, . . . .”).

109. See supra note 9 and accompanying text.

110. Heller, 554 U.S. at 635.

111. Transcript of Oral Argument at 44, Heller, 554 U.S. 570 (No. 07-290); see also Allen Rostron, Justice Breyer’s Triumph in the Third Battle over the Second Amendment, 80 Geo. Wash. L. Rev. 703, 737 (2012).

112. See infra Section IV.A.5; David B. Kopel & Joseph G.S. Greenlee, The Federal Circuits’ Second Amendment Doctrines, 61 St. Louis U. L.J. 193, 212 (2017); Rostron, supra note 111.

113. Heller, 554 U.S. at 582.

114. See supra note 69 and accompanying text.

115. Dworkin, supra note 18, at 2228–29; see discussion supra Section II.A.

116. Heller, 554 U.S. at 627 (referencing United States v. Miller, 307 U.S. 174, 179 (1939)).

117. Id. at 625.

118. See id. at 627; Balancing Test, Black’s Law Dictionary (11th ed. 2019).

119. Heller, 554 U.S. at 627 (reviewing eighteenth-century gun laws) (citations omitted).

120. Id. (quoting United States v. Miller, 307 U.S. 174, 179 (1939)).

121. Id. (quoting Miller, 307 U.S. at 179).

122. Some scholars believe this is because Justice Scalia spent most of his energy and focus trying to refute Justice Steven’s dissent that argued Miller only supported a collective right to gun ownership. See, e.g., Cody J. Jacobs, End the Popularity Contest: A Proposal for Second Amendment “Type of Weapon” Analysis, 83 Tenn. L. Rev. 231, 244–45 (2015).

123. Id. at 263; see also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1478–80 (2009) (providing six criticisms based on confusion in the common-use test’s applicability).

124. See Meaghan R. Callahan, Constitutional Law—Don’t Shoot the Messenger: The First Circuit Upholds Massachusetts Assault Weapons Ban—Worman v. Healey, 922 F.3d 26 (1st Cir. 2019), 25 Suffolk J. Trial & App. Advoc. 314, 323–26 (2020).

125. Circular Argument, Britannica, https://www.britannica.com/topic/circular-argument [https://perma.cc/SM3K-AVUJ] (last visited Mar. 20, 2022); Heller, 554 U.S. at 721(Breyer, J., dissenting); see also Michael P. O’Shea, The Right to Defensive Arms After District of Columbia v. Heller, 111 W. Va. L. Rev. 349, 384 (2009) (criticizing Heller’s mechanical application of the common-use criterion as circular and not a faithful reading of Miller).

126. Jasper L. Cummings, Jr., Circular Cash Flows and the Federal Income Tax, 64 Tax Law. 535, 542 (2011).

127. See, e.g., William G. Merkel, District of Columbia v. Heller and Antonin Scalia’s Perverse Sense of Originalism, 13 Lewis & Clark L. Rev. 349, 360–62 (2009).

128. Id. at 362. But cf. Heller, 554 U.S. at 627 (asserting that citizens in the militia would bring weapons that they possessed at home to militia duty).

129. See, e.g., Merkel, supra note 127, at 360–62; see also Jacobs, supra note 122, at 275–76 (noting that the common-use test is not mandated by historical precedent).

130. Symposium, Heller: Past, Present, and Future, 40 Campbell L. Rev. 361, 369 (2018).

131. Jacobs, supra note 122, at 266–67.

132. Geoff Weiss, Remembering Gary Dahl, the Marketing Magician Who Made Millions Selling Pet Rocks, Entrepreneur (Apr. 1, 2015) https://www.entrepreneur.com/article/244602 [https://perma.cc/6VC4-KH36].

133. Jacobs, supra note 122, at 267–68.

134. See id.

135. Id.

136. Id. at 268–69.

137. See Andres Paciuc, Personalized Smart Guns: A Futuristic Dream or a Pragmatic Solution?, 1 Duke L. & Tech. Rev. 198, 205–09, 223 (2022).

138. See Jacobs, supra note 122, at 265 (“[T]he common use test creates an incentive for governments that are interested in restricting access to firearms to ban new weapons completely before they can become popular.”).

139. See id. at 268–69.

140. See id. at 267–68.

141. Id. at 269.

142. McDonald v. City of Chicago, 561 U.S. 742, 804 (2010) (Scalia, J., concurring).

143. District of Columbia v. Heller, 554 U.S. 570, 634 (2008).

144. Jacobs, supra note 122, at 286.

145. Id.

146. Some scholars suggest that this ambiguity is an unavoidable product of originalism itself. See Merkel, supra note 127, at 356–57, 362.

147. Craig S. Lerner & Nelson Lund, Heller and Nonlethal Weapons, 60 Hastings L.J. 1387, 1393 (2009).

148. See Demography of Article III Judges, 1789-2020: Gender, Fed. Jud. Ctr., https://www.fjc.gov/history/exhibits/graphs-and-maps/gender [https://perma.cc/K6VK-HKS2] (last visited Feb. 10, 2023); see also Demography of Article III Judges, 1789–2020: Race and Ethnicity, Fed. Jud. Ctr., https://www.fjc.gov/history/exhibits/graphs-and-maps/race-and-ethnicity [https://perma.cc/CU6F-PKFY] (last visited Feb. 10, 2023); Quick Facts: United States, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/US/PST045222 [https://perma.cc/XW9T-LTLX] (last visited Feb. 10, 2023).

149. Sam Zuidema, Raising Heller: Constitutional Scrutiny in a New Age of Second Amendment Rights, 2018 U. Ill. L. Rev. 813, 836.

150. See Kyllo v. United States, 533 U.S. 27, 41 (2001) (Stevens, J., dissenting) (“Moreover, I believe that the supposedly ‘bright-line’ rule the Court has created in response to its concerns about future technological developments is unnecessary, unwise, and inconsistent with the Fourth Amendment.”).

151. District of Columbia v. Heller, 554 U.S. 570, 572 (2008).

152. See, e.g., Kyllo, 533 U.S. at 40 (“Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”). See also infra notes 163–167 and accompanying text.

153. See Jacobs, supra note 122, at 270.

154. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (“[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”).

155. O’Shea, supra note 125.

156. Id.

157. See supra Section IV.A.2.

158. See supra Section IV.A.3.

159. Kathryn M. Stanchi, The Science of Persuasion: An Initial Exploration, 2006 Mich. St. L. Rev. 411, 419.

160. Id.

161. See Merkel, supra note 127, at 380–81 (suggesting somewhat cynically that the explanation could merely be one of hubris).

162. Minnesota v. Carter, 525 U.S. 83, 97 (1998) (Scalia, J., concurring) (calling the reasonable expectations test “self-indulgent” and claiming that what judges ultimately conclude to be “reasonable” always “bear[s] an uncanny resemblance to those expectations of privacy that this Court considers reasonable” (quoting Katz v. United States, 389 U.S. 347, 361 (1967))). But see Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1006, 1016–17 n.7 (1992) (finding potential answers to a constitutional takings issue in the reasonable expectations test).

163. Georgia v. Randolph, 547 U.S. 103, 128, 130 (2006) (Roberts, C.J., dissenting) (protesting the application of the reasonable expectations test to a threshold consent to search case and positing that precedent dictates the use of an assumption of the risk standard instead).

164. Carpenter v. United States, 138 S. Ct. 2206, 2223, 2227, 2235 (2018) (Kennedy, J., dissenting) (protesting the majority’s application of the reasonable expectations test and suggesting that “accepted property principles” should be the basis of the Fourth Amendment search analysis). But see Byrd v. United States, 138 S. Ct. 1518, 1523, 1527 (2018) (applying the reasonable expectations test without protest).

165. Carpenter, 138 S. Ct. at 2235–36 (2018) (Thomas, J., dissenting) (lamenting that the reasonable expectations test “has no basis in the text or history of the Fourth Amendment. And, it invites courts to make judgments about policy, not law”).

166. United States v. Jones, 565 U.S. 400, 427 (2012) (Alito, J., concurring) (asserting that the reasonable expectations test is “not without its own difficulties”). But see id. at 418–19 (protesting Justice Scalia’s attempt to twist the reasonable expectations test into a common-use test).

167. Justice Gorsuch, while not on the bench for the Heller decision, has shown a similar distaste for the reasonable expectations test. Carpenter, 138 S. Ct. at 2261, 2264 (Gorsuch, J., dissenting) (agreeing wholeheartedly with Justice Thomas’s fierce dislike of the reasonable expectations test); District of Columbia v. Heller, 554 U.S. 570, 572 (2008).

168. See, e.g., Jacobs, supra note 122, at 263–78; see also Volokh, supra note 123, at 1478–80.

169. Sunstein, supra note 22, at 267.

170. Merkel, supra note 127, at 380.

171. Friedman v. City of Highland Park, 784 F.3d 406, 409 (7th Cir. 2015) (“[R]elying on how common a weapon is at the time of litigation would be circular to boot. . . . Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.”); see also Callahan, supra note 124, at 324–25.

172. See, e.g., Hollis v. Lynch, 827 F.3d 436, 451 (5th Cir. 2016) (acknowledging the circular nature of the argument but assuming the Heller majority had some reason to implement it anyway); see also Rostron, supra note 111, at 728.

173. Kodak v. Holder, 342 F.App’x 907, 909 (4th Cir. 2009) (“Even if possession of armor-piercing ammunition would be more common were it not banned, it does not necessarily follow that it would be commonly used by law-abiding citizens for lawful purposes, considering the great risk such ammunition poses to law enforcement officers.”).

174. Jacobs, supra note 122, at 258.

175. See id. at 263–78; Volokh, supra note 123, at 1479 n.147; Rostron, supra note 111, at 732; Callahan, supra note 124, at 324–26; see also Rogers v. Grewal, 140 S. Ct. 1865, 1866 (2020) (Thomas, J., dissenting in the Court’s denial of certiorari) (“In the years since [the 2008 Second Amendment] decisions, lower courts have struggled to determine the proper approach for analyzing Second Amendment challenges.”).

176. See infra Section V.B.

177. District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008) (“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”).

178. Id. at 626 n.26.

179. Id. at 721 (Breyer, J., dissenting) (“I am similarly puzzled by the majority’s list, in Part III of its opinion, of provisions that in its view would survive Second Amendment scrutiny . . . . Why these? Is it that similar restrictions existed in the late-[eighteenth] century? The majority fails to cite any colonial analogues.”).

180. See id. at 625–26.

181. Rosenthal, supra note 63, at 1194.

182. Heller, 554 U.S. at 684–86 (Breyer J., dissenting) (presenting numerous opposing laws and other historical evidence that contradict the majority’s historical references); see also Rostron, supra note 111, at 732 (“The historical evidence simply is too easy to spin in either direction.”).

183. Heller, 554 U.S. at 627 (quoting United States v. Miller, 307 U.S. 174, 179, (1939)); see also Jacobs, supra note 122, at 243.

184. João Costa-Neto, Rights as Trumps and Balancing: Reconciling the Irreconcilable?, 11 Revista Direito GV 159, 178 (2015), https://www.scielo.br/j/rdgv/a/pg6PTTRNYFSHtwPn9HDdnKn/?lang=en&format=pdf [https://perma.cc/6E4R-3Z73].

185. See Scalia Response, supra note 11, at 145 (finding that the Eighth Amendment prohibition of cruelty applies “to all sorts of tortures quite unknown at the time the Eighth Amendment was adopted”).

186. Heller, 554 U.S. at 635.

187. Id.

188. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2131–32 (2022).

189. Heller, 554 U.S. at 622, 627.

190. Volokh, supra note 123, at 1453, 1475–1533.

191. See id.

192. Robert J. Cottrol & Raymond T. Diamond, “Never Intended to Be Applied to the White Population”: Firearms Regulation and Racial Disparity—the Redeemed South’s Legacy to a National Jurisprudence?, 70 Chi.-Kent L. Rev. 1307, 1320–21 (1995) (“The first set of limits were widespread throughout the South and generally agreed upon, that blacks whether slave or free would have severely limited access to firearms. This form of firearms control provoked little controversy in the white South, even amongst slave-owners who felt secure enough to allow their own slaves to possess firearms and hunt on their land.” (internal citations omitted)).

193. See Mark Anthony Frassetto, The Nonracist and Antiracist History of Firearms Public Carry Regulation, 74 SMU L. Rev. F. 169, 173 (2021) (“These states were not subtle about their racist laws . . . .”).

194. See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2236 (2022) (using pointedly sexist historical authority to show the “history and tradition” of the abortion right).

195. Megan Ruebsamen, The Gun-Shy Commonwealth: Self-Defense and Concealed Carry in Post-Heller Massachusetts, 18 Suffolk J. Trial & App. Advoc. 55, 64 (2013).

196. Race is now a protected class under the Fourteenth Amendment and white supremacy is no longer a legitimate government interest. U.S. Const. amend. XIV § 1; Loving v. Virginia, 388 U.S. 1, 11 (1967).

197. See supra Section II.A.

198. United States v. Kokinda, 497 U.S. 720, 743 (1990) (Brennan, J., dissenting).

199. Jon Golinger, Shopping in the Marketplace of Ideas: Why Fashion Valley Mall Means Target and Trader Joe’s Are the New Town Squares, 39 Golden Gate U. L. Rev. 261, 262–63 (2009).

200. Interestingly, this approach often reaches the same result that expectation originalism would, but it does not delve into the impermissibly subjective nature of the framers’ specific intent.

201. See supra Section IV.A; District of Columbia v. Heller, 554 U.S. 570, 634 (2008) (calling interest-balancing tests flawed and “judge-empowering”).

202. See supra Section IV.A.3.

203. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2132 (2022).

204. Id. (quoting Cass R. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993)).

205. Id. at 2133 (quoting McDonald v. City of Chicago, 561 U.S. 742, 767 (2010)).

206. Id. at 2132–33.

207. Id. at 2133.

208. Id.

209. Id. at 2134.

210. United States v. Perez-Gallan, No. 22-CR-00427, 2022 WL 16858516, at *3–4 (W.D. Tex. Nov. 10, 2022).

211. Bruen, 142 S. Ct. at 2133.

212. Id.; Perez-Gallan, 2022 WL 16858516, at *15.

213. Perez-Gallan, 2022 WL 16858516, at *15.

214. See id. at *9–12.

215. See id.

216. Id. at *10 (quoting Bruen, 142 S. Ct. at 2131).

217. Bruen, 142 S. Ct. at 2133 (quoting District of Columbia v. Heller, 554 U.S. 570, 626); see also id. at 2162 (Kavanaugh, J., concurring).

218. Kanter v. Barr, 919 F.3d 437, 458 (7th Cir. 2019) (Barrett, J., dissenting).

219. Perez-Gallan, 2022 WL 16858516, at *11.

220. Bruen, 142 S. Ct. at 2133.

221. Range v. Att’y Gen. U.S., 53 F.4th 262, 266 (3d Cir. 2022), reh’g granted and vacated, 56 F.4th 992 (3d Cir. 2023) (en banc).

222. Range v. Att’y Gen. U.S., 56 F.4th 992 (3d Cir. 2023) granting reh’g en banc and vacating Range, 53 F.4th 262.

223. See Range, 53 F.4th at 285 (explaining that the government satisfied its burden under 18 U.S.C. § 921).

224. Perez-Gallan, 2022 WL 16858516, at *1.

225. United States v. Dennis, 183 F.2d 201, 214 (2d Cir. 1950) aff’d, 341 U.S. 494, (1951) (“[Courts must] balance[ ] the repression necessary to avoid the evil, against the evil itself, discounted by the improbability of its occurrence.”).

226. District of Columbia. v. Heller, 554 U.S. 570, 627 (2008).

227. Christopher Ingraham, New Evidence Confirms What Gun Rights Advocates Have Said for a Long Time About Crime, Wash. Post, https://www.washingtonpost.com/news/wonk/wp/2016/07/27/new-evidence-confirms-what-gun-rights-advocates-have-been-saying-for-a-long-time-about-crime/ [https://perma.cc/TP95-AM88] (last updated July 27, 2016, 10:15 AM).

228. Heller, 554 U.S. at 628–29. But see id. at 687 (Breyer, J., dissenting) (challenging the majority’s position and claiming the handgun statute would fail a rational-basis standard).

229. See Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting) (considering unconstitutional Second Amendment restrictions as applied to nonviolent felons); see also Anthony P. Picadio, In Scalia’s Wake: The Future of the Second Amendment Under an Originalist Supreme Court Majority, 92 Pa. Bar Ass’n Q. 145, 153 (2021); Jake Charles, Amy Coney Barrett on Guns, Duke Ctr. for Firearms L., https://firearmslaw.duke.edu/2020/10/amy-coney-barrett-on-guns/ [https://perma.cc/YG48-LKNY] (Oct. 14, 2020).

230. Robert J. Spitzer, Gun Law History in the United States and Second Amendment Rights, 80 L. & Contemp. Probs. 55, 72 (2017). But see Kanter, 919 F.3d at 451 (asserting the common law does not support Second Amendment restrictions for nonviolent felons).

231. Heller, 554 U.S. at 626.

232. Range, v. Att’y Gen. U.S., 53 F.4th 262, 266. (3d Cir. 2022).

233. Regrettably, the Founders’ analysis of the risk of danger focused the “dangerous person” classification toward Native Americans for racist reasons. Spitzer, supra note 230. However, the originalist balance can still apply to nonprotected classes like duly convicted felons.

234. See supra Section III.B; supra Section V.B.

235. See supra Part V; supra Section III.A.

236. See supra Part V.