Originalism, the Second Amendment, and the Vibe of the Constitution

Abstract

Constitutional law often comes down to how judges feel about the vibes of the Constitution’s text, structure, and history. This has always been true, but in the past, courts had more leeway to be honest about this. With a majority of the Supreme Court embracing an originalist approach to constitutional interpretation, the opportunity for candor has been lost. Judges now pretend that history and tradition supply the answers to difficult constitutional questions, even when they must rely on tenuous inferences from the historical record. This Essay examines major cases from the past where the Supreme Court acknowledged that it was making decisions based on constitutional vibes, contrasts those with more recent decisions made under the cloak of originalism, and explores how the lower courts in Second Amendment cases must now struggle to follow the Supreme Court’s lead