If a constitutional amendment were written today, one might assume an originalist would interpret it according to its meaning today. If that originalist were on the Third Circuit, however, one might be wrong. Recently, in Lara v. Commissioner Pennsylvania State Police,1 the Third Circuit struck down a Pennsylvania statute, which restricted the firearm rights of eighteen- to twenty-year-olds, due to the lack of analogous restrictions when the Second Amendment was ratified in 1791.2 However, the right to bear arms only applies to the states because of the Fourteenth Amendment,3 passed during Reconstruction in 1868, at which point analogous age-based restrictions abounded.4 The question of which period defines the incorporated right to bear arms — Founding or Reconstruction — was central to the case. The Third Circuit read an answer into Supreme Court precedent, but the precedent offered no such clarity. The court should have instead performed an originalist analysis, which would have revealed that Reconstruction-era meanings are central to interpreting the right to bear arms.
Pennsylvania’s Uniform Firearms Act of 19955 (UFA) restricted the firearm rights of those under twenty-one via a licensing scheme.6 Normally, these minors could open carry, but not concealed carry, in public.7 However, during a state of emergency, they could do neither, subject to exceptions for work and for urgent defense of self and property.8 In 2020, Pennsylvania had been in a state of emergency for nearly three years due to the opioid epidemic and then COVID-199 — effectively barring many eighteen- to twenty-year-olds from carrying weapons in public. That October, three eighteen- to twenty-year-olds and two Second Amendment advocacy groups sued the Pennsylvania State Police Commissioner to enjoin enforcement of the UFA.10
In 2021, the U.S. District Court for the Western District of Pennsylvania granted the Commissioner’s motion to dismiss.11 Judge Stickman examined the interplay of the various statutory provisions and noted the wide-ranging professional and recreational exceptions allowing plaintiffs to carry guns even during states of emergency.12 Then, under District of Columbia v. Heller,13 the district court asked whether the restrictions in question were “longstanding” and “presumptively lawful.”14 Relying on a variety of cases confronting similar questions, the court held that Pennsylvania’s law was consistent with “longstanding” practices and therefore “presumptively lawful.”15
The Third Circuit reversed,16 finding the UFA unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen.17 The Commissioner petitioned the Supreme Court, which granted certiorari, vacated the judgment, and remanded “in light of United States v. Rahimi.”18 On remand, writing for the same panel, Judge Jordan again held the law unconstitutional, in an opinion largely “repetitive of [the] earlier decision.”19 As before, the panel found eighteen- to twenty-year-olds part of “the people” referenced in the Second Amendment, in part based on interpretations of “the people” elsewhere in the Constitution and on Heller’s “strong presumption” that gun rights extend “to all Americans.”20 Then, the panel again found there was one Second Amendment, whether applied against the federal government or the states, and its unitary scope was defined by 1791, when it was ratified, not 1868, when the Fourteenth Amendment was ratified.21
The panel acknowledged that the Supreme Court left the time-frame issue unsettled in Bruen and Rahimi because both approaches — defining the Second Amendment according to 1791 or 1868 — led to the same result.22 Judge Jordan thus relied on two aspects of Bruen to infer a 1791 time frame: the Court’s statement that it had “generally assumed” the Bill of Rights should be interpreted in terms of its meaning in 179123 and its string citation to prior cases exemplifying that assumption.24 The Commissioner’s evidence that over half of the states restricted the firearm rights of eighteen- to twenty-year-olds in the nineteenth century was thus treated as mere “postenactment history”25 with limited potential to illuminate 1791 understandings.26 After canvassing Founding-era firearm regulations, the court found the provisions of the UFA barring eighteen- to twenty-year-olds from openly carrying firearms during an emergency27 “[in]consistent with the principles that underpin [those] regulations”28 and enjoined the Commissioner from enforcing them.29 The court also addressed the Commissioner’s argument that a recent amendment to the Pennsylvania Constitution rendered the case moot by limiting the duration of emergency declarations.30 The panel held that the case was still justiciable because the issue was likely to recur, even if temporarily resolved.31
Judge Restrepo dissented.32 In his view, the Second Amendment did not apply to eighteen-to-twenty-year-olds because, as the majority conceded, “those under the age of 21 were considered minors”33 since before the Founding and were not part of “the people,” which includes all “adult Americans.”34 Judge Restrepo also found Pennsylvania’s regulation “consistent with this Nation’s historical tradition.”35 Given that minors were not considered part of “the people,” a search for statutes specifically barring them from firearm ownership at the Founding was a flawed enterprise: “Legislatures tend not to enact laws to address problems that do not exist.”36 He also argued that the firearm regulations after the Founding were evidence of Founding-era understandings.37
The question raised in Lara of the relevant time period for an analysis of the incorporated Second Amendment has far-reaching implications for all incorporated rights. It is also a question the Supreme Court has yet to answer38 and one on which the Third Circuit’s sister courts have split.39 Instead of searching for an answer amidst case law that explicitly disavowed one, the Third Circuit could have added clarity to this area of law by reasoning through the question with a higher-order principle like originalism. Had it done so, it would have found that 1868 meanings are essential to any Second Amendment analysis.
The Lara court relied entirely on precedent to answer the time frame question. But that authority did not provide an answer. The Bruen Court distanced itself from its “assumed”40 focus on the Founding by acknowledging an “ongoing scholarly debate”41 and choosing not to wade in.42 Justice Barrett wrote separately to emphasize the non-answer to this question.43 Looking at the same language, an Eleventh Circuit panel said “an assumption is not a holding.”44 When the Bruen Court referenced the ongoing scholarly debate, it cited two originalist arguments against this assumption.45 The Rahimi Court cited to the same academic debate when it too refrained from picking a time frame.46 The Third Circuit neither cited nor addressed their arguments. It thus rested on the “wafer-thin reed”47 of “assum[ptions].”48
Lara’s reliance on the cases that Bruen cited to exemplify the Court’s prior assumptions was similarly unavailing.49 The Third Circuit failed to note how the Court distanced itself from those cases. Further, some were more complex than they appeared. Nevada Commission on Ethics v. Carrigan50 relied on interpretations of 1791 “laws [that] . . . have been in place ever since,”51 and Crawford v. Washington52 declared “[t]he right to confront one’s accusers . . . dates back to Roman times,”53 suggesting a focus on longevity, not one time frame. The Third Circuit also failed to look beyond Bruen’s examples. McDonald v. City of Chicago,54 which first applied the Second Amendment to the states, relied heavily on Reconstruction-era history.55 The wider body of law did not overcome Bruen’s self-professed restraint on the time frame question.
The Third Circuit used ambiguous-at-best precedent to treat Reconstruction-era firearm regulations as postenactment history, but if it had instead grappled with the originalist arguments cited in Bruen, it would have found that 1868 understandings are key to the Second Amendment. One district court that did grapple with these arguments said “[i]t is difficult to see an[other] answer” under “originalist theory.”56 At oral argument in Bruen, counsel for the New York State Rifle and Pistol Association (a former Solicitor General57) agreed, saying that, given a conflict, in a “case [that] arose in the states,” one should likely “look[] at . . . Reconstruction . . . and giv[e] preference to that over the founding.”58 To understand why, a bit of history is helpful. Before 1868, the Bill of Rights applied only to the federal government.59 Then, the Fourteenth Amendment worked a sea change by requiring states to respect the rights embodied therein.60 The Bill of Rights, newly applicable against the states, retained a single scope: There was one Second Amendment whether applied to the states or the federal government.61
This single-track incorporation theory, repeatedly affirmed by the Court,62 is probably wrong from an originalist perspective,63 but even taking it for granted, as the Third Circuit must, 1868 meanings should still have guided the Lara court’s analysis. There are two primary ways to make sense of the current incorporation doctrine. Each produces a different answer to the time-frame question. Neither perfectly resolves the dubious way incorporated rights have been lashed to their original counterparts, but the 1868 approach hews closer to originalist tenets.
One approach Lara could have taken, consistent with its 1791 focus, would have been to find that the Fourteenth Amendment incorporated 1791 understandings. This approach avoids the legal jiu-jitsu of altering the first eight amendments via the Fourteenth. However, it is historically suspect. For example, the Fourteenth Amendment’s drafters said it would vest “Congress . . . with the power to enforce the bill of rights as it stands in the Constitution today.”64 The Reconstruction generation often had a negative view of the original Constitution and its Framers.65 It is thus unlikely that the Fourteenth Amendment was thought to protect whatever a judge might think the Founders meant.
Even those with “abiding originalistic reverence for the Constitution and the founding fathers” recognized that they were charting a new course.66 The Founding generation viewed the Bill of Rights “through a federalism lens.”67 The Reconstruction generation viewed those rights as individual rights.68 This is clearest with provisions like the Establishment Clause, which originally prevented the federal government from interfering with state-established religions.69 By 1868, an individualist view pervaded the same clause, such that it prevented the federal government from impeding religious liberty.70 And even when Founding-era rights protected individuals, their purpose was often federalist. The Founding generation’s Free Speech Clause covered individuals, but for the purpose of “safeguard[ing] the rights of popular majorities . . . against a . . . self-interested Congress.”71 The Reconstruction generation fought for speech rights “against the community”72 to protect unpopular speakers, like abolitionist editors.73 So too with the Second Amendment. The Lara court accurately spoke about an “individual . . . right,”74 but its original purpose was preventing “a federal[] . . . army” from “overaw[ing] state-organized militias.”75 In contrast, the 1868 generation was focused on arming freedmen and Union sympathizers against the Klan.76 This focus on individuals was a theme in speeches that made front-page news nationwide.77 Thus, the Fourteenth Amendment likely did not incorporate 1791 understandings.78
There was another approach available to the Lara court. As Professor Akhil Amar put it in a passage cited by the Court in Bruen79: “[T]he Fourteenth Amendment has a doctrinal ‘feedback effect’ against the federal government, despite the amendment’s clear textual limitation to state action.”80 As Professor Kurt Lash said in the other source cited by Bruen,81 the Reconstruction generation “respoke” the original Bill of Rights, reinvesting 1791 structural rights with new 1868 meanings.82 If the earlier discussion of a federalism-focused Bill of Rights seemed surprising, it is precisely because the Reconstruction minority-rights approach has suffused modern understanding of its content.83 The First Amendment, for example, is associated with individuality, autonomy, and dissent — an understanding alien to the Founders but justified by Reconstruction.84 Heller’s right to bear arms for self-defense would make little sense in 1791, while fitting in 1868.85
This approach also works at a theoretical level. The first eight amendments can be seen as pointing to and emphasizing bits and pieces of a large preexisting substratum of rights.86 The Fourteenth Amendment took that old 1791 set of rights and replaced it with a new one, such that the Bill of Rights points to 1868 meanings. And at the textual level, when the Fourteenth Amendment implicitly defined the rights in the first eight amendments as part of “due process” (or as part of the “privileges or immunities” of citizenship87), like raw iron passed through a forge, the text of those amendments came out refined and updated.
Precedent also supports this approach. The Fourteenth Amendment has long been held to modify the Eleventh despite a lack of explicit text to that effect.88 And through reverse incorporation, the Fourteenth Amendment alters the Fifth.89 If the Lara court had grappled with these arguments, it would have seen that an originalist analysis leads to the conclusion that, when 1791 and 1868 meanings conflict in an analysis of the Second Amendment, as in Lara, the latter prevail.
Judicial decisionmaking is not just about principled interpretational methodologies. It is also a form of storytelling.90 And instead of starring Reconstruction and honoring the sacrifices of those who died in America’s bloodiest war91 to realize the promise of a more equal country, the Lara court’s doctrinal choices continued the national hagiography of Founding-era Fathers and banishment of Reconstruction-era Founders to the backwaters of history.92 If the Supreme Court ever does confront the question of the proper time frame for analyzing fundamental rights, hopefully it makes a more grounded interpretational choice and one that gives Reconstruction a more deserving place in the national story.