Joel Alicea writes about one of U.S. Supreme Court Justice Clarence Thomas’ most significant majority opinions.
New York State Rifle & Pistol Association v. Bruen heralded a potential revolution in the Supreme Court’s approach to adjudicating constitutional rights, rejecting judicial interest-balancing tests like the tiers of scrutiny in favor of a text-and-history methodology. Bruen staked the legitimacy of its methodology on its ability to faithfully capture the original meaning of the Second Amendment, yet Bruen never defended the historical accuracy of the conception of constitutional rights on which it rests.
Bruen’s conception of rights cannot be taken for granted in light of recent scholarship by Jud Campbell, Jonathan Gienapp, and Jamal Greene challenging many of the assumptions about rights undergirding Bruen’s methodology. These three scholars, whom I will refer to as the “rights-revisionists,” argue—to varying degrees—that the Founders placed much less importance on the text of the Bill of Rights than modern rights jurisprudence tends to do. … [T]hey have challenged a conception of rights at the Founding put forward by other scholars—such as Michael McConnell and Philip Hamburger—that gives more importance to the text of the Bill of Rights and generally sees rights as trumps on government action.
Thus far, no scholar has answered the rights-revisionist critique of the conception of rights Bruen assumes. But the critics of Bruen’s methodology are mistaken. By describing the text as a “mere placeholder,” they overlook Campbell’s own descriptions of how the Founders understood the role of the text. By accusing Bruen of undercutting democratic governance, they misunderstand Bruen’s methodology. And by disparaging Bruen’s historical analysis because it assumes that rights generally operated as trumps on government action, they overstate the extent to which constitutional rights were seen as regulable by legislatures. On each of these points, Bruen’s methodology is not only grounded in the Founding-era conception of rights; it is consistent with the rights-revisionists’ own account of rights at the Founding. There need be no significant conflict between Bruen’s methodology and rights-revisionism.
