As the Supreme Court prepares for oral argument on Tuesday next week in Wolford v. Lopez, it should consider resolving the relevant time period for interpreting the scope of the Second Amendment. The issue arises in contexts as diverse as the federal prohibitions on certain classes of people (see post here) and whether adults aged 18 to 20 have Second Amendment rights (see post here). It is pertinent to the Wolford issue of Hawaii's default rule of no guns on private property open to the public without prior consent.
In New York State Rifle & Pistol Association v. Bruen, the Supreme Court rejected interest-balancing under the Second Amendment, instead requiring that laws that implicate the plain text of the Second Amendment be "consistent with this Nation's historical tradition of firearm regulation." In doing so, Bruen reiterated the Supreme Court's assurance, offered many times before, that rights applied to the states have the same scope when applied to the federal government. And it further stated that it had "generally assumed that the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791." (Some lower courts have decided that the Supreme Court was incorrect when it so "assumed" and have purported to decide that 1868 is the better date.) And when it came time to reviewing late-nineteenth century evidence, the Court said that such evidence has no more than confirmatory value "of what the Court thought had already been established [by earlier sources]."
To be sure, the Court in Bruen acknowledged a "ongoing scholarly debate" over whether courts should rely on evidence from the ratification of the Bill of Rights in 1791, or on evidence from when the Fourteenth Amendment was ratified in 1868. The Court's statements throughout the rest of the opinion, and its prior precedent establish that 1791, not 1868, is the proper period to look for evidence of the original public meaning of the Second Amendment.
