Will Baude

Yeah.

So the – I mean this in fact was part of the debate when the Constitution was enacted was should there be a Bill of Rights?

And the standard federalist talking point was we don't need a Bill of Rights.

You already have rights that are recognized in unwritten law.

They don't need to be in the Constitution because they're already there and we don't have any power to infringe them.

And the anti-federalist talking point was like, yes, we agree in principle, but we would feel safer if you put them in the Constitution anyway.

And so they compromise on putting them in the Constitution anyway.

But at the time, at least, the official story about why they're doing that is to make extra clear that Congress doesn't have the power to abrogate them.

Because, of course, sometimes common law could be changed by the legislature, and there were some enumerated powers that you could argue might be used to infringe the right to keep and bear arms.

I think – so I think the general law approach looks a lot like the solicitor general's approach, which is to say actually this kind of regulation – it's not so clear this kind of regulation is categorically forbidden.

Like there is a lot of regulation of the right that's permitted if it's done for a proper purpose and not as a – like neither to sort of functionally extinguish the right or add a hostility to the right.

But there are these arguments that some of these laws are enacted out of hostility to the right rather than just an attempt to regulate.

I think that's the kind of the right lane to be in.

I do think this is where I sort of was thinking about the court wanting two things we can't have.

The court wants a historical approach in which it doesn't have to get into kind of messy questions.

And I think the general law approach that we describe is a historical approach that does get into messy questions.

Yeah.

And so you have to kind of choose between your want for history and your desire to live.

Uh, maybe the general law can evolve, although not through things like, I mean, because it's found not made, not through things like judges trying to, trying to change it.

And the more relevant thing, and this isn't just as Barrett kept flagging, is that the general law does proceed at a certain level of generality, right?