Structural Originalism: A Second Amendment Case Study

“Originalism” is having a national moment, even if it is not entirely clear what the word means. What should we be originalist about? The leading academic approach asks us to parse the communicative content of text ratified in a very different linguistic culture; then construct a modern legal meaning consistent with our semantic speculations. Too often the result enforces policy judgments made in a radically different moral and technological world. This makes very little sense. In this paper I recommend a more perspicuous and coherent use of constitutional history, which I call “structural originalism.” Rather than saddle ourselves with the political judgments of an historical society, we ought instead seek to preserve the decision-making processes—the institutional structures—the Constitution establishes. This approach binds us to the historical mainmast without privileging the outdated and regressive political worldviews of a different time. I then apply this method to a modern and pressing constitutional case study: gun regulation and the Second Amendment. I make the structural case that the Constitution assigns the care of two distinct natural rights to two distinct constitutional institutions. The Second Amendment locates the right of revolution in the universal militia, while the common law entrusts the right to individual self-defense to the jury. The result of this structural clarity is that state governments may regulate the weapons of private defense by statute or common law, so long as they do not discriminate based on race.