Will Baude

So it's just like there's three good things to want doctrine to be, and they seem to just think they could all be there together.

Yeah.

I think it's not quite a purpose argument.

I think it is more of a history argument, although it's not the kind of neat and clean kind of history that Justice Kavanaugh wants.

And I will say if you do start – if you go further into the general law –

One of the things you discover is that at the general law, the purpose mattered.

Like the general law in general was quite tolerant of legislative regulation of general law rights as long as it was for a public reason and not out of hostility to the right.

Yeah.

That was like one of the important principles.

So this article I wrote with Robert Leiter, who is, of course, not responsible for anything I'm about to say.

But the general idea was that the Second Amendment was – when Heller described it as a preexisting right, and then in the Fourth Amendment context, again, the court describes it as a preexisting right.

What they mean is this is one of these rights that unwritten law just sort of recognized in Anglo-American tradition as a form of general law before Erie kind of –

what now we might call federal common law, but it wasn't really federal common law.

It was just kind of common law.

And that's actually why in state constitutional decisions about the right to keep and bear arms throughout the 19th century, you see the courts all talking as if they're talking about the same thing.

Like the Alabama Supreme Court will uphold or strike down some law and cite a bunch of cases from other jurisdictions saying they're talking about the same thing.

It's just the right of Americans to keep and bear arms.

That happens to be referenced in their constitution and sometimes regulated in different ways in different places.

They talked about the right of trial by jury this way, too, or the right of freedom of speech.

And because of that, when we think about history and tradition, the nature of regulation, we should be thinking about that piece of the fabric.