Original article Founding Era Translations of the US Constitution (ssrn.com/abstract=248...) and appendix (ssrn.com/abstract=248...).

Or, who is a legal academic and just in the Bay Area generally next week…. (Clearly I have a specific ask here.)

More from me here: Diverse Originalism, History & Tradition papers.ssrn.com/sol3/papers....

Finally, from the oral arguments, I’d be shocked if (c)(1) weren’t held to be constitutional. No justice seemed to push back on the central claim that judges can disarm people who are individually assessed to be dangerous today.

J. Jackson asks both advocates how we can care abt history & tradition when 2A didn't protect arms rights for Black people and Native Americans. Wish someone had noted that 14A reaches back and erases constitutionality of those bans, & that you have to read 2A in light of 14A.

(2) Clarify you don’t need a dead ringer regulation, but evidence of historic principles for limiting 2A rights; (3) Clarify not to put too much weight on lack of regulation when there’s no evidence that absence of regulation speaks to a judgment about constitutionality.

Read more in my essay Diverse Originalism, History & Tradition papers.ssrn.com/sol3/papers....

Tomorrow, Rahimi creates the opportunity for the Court to clarify that it still cares about the OPM of the 2A and the 14A, which would yield more accurate and just results than what’s followed immediately from Bruen.

Only looking to regs also sends the unfortunate message that the whole public’s understanding – including non-elites, women, PoC – don’t matter, when they do matter for OPM.

And it doesn’t know how to deal with situations where a regulation wasn’t passed because of other legal or cultural factors (like how society understood the domestic sphere), not because of opinions about constitutionality.

Why is only looking to historic regulation bad? It misses situations where there was agreement about constitutionality of passing a statute, but not political will to pass. (And this happens! E.g. Michael McConnell's argument that Brown v. Board is originalist is based on this.)

(There was some discussion at ND about whether Bruen *really* requires the government to find an analogous statute or not, but lower courts have been acting as though it does, so if Bruen didn’t mean that, Rahimi needs to clarify.)

Whereas OPM asks how text was understood by the public in context, Bruen only looks to regulations. This limits the relevant evidence to a subset of that which speaks to the public understanding of 2A (& 14A).

Instead, Bruen asks what the “plain text” of 2A covers, and then says for any limitation to be constitutional, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

Bruen’s majority says the “original public understanding” of 2A is “a critical tool” for interpreting it, but Bruen is not really an “original public meaning” originalism (OPM) opinion.