by Corer Feuer and Rachael Perrotta
Two days after a fatal shooting at The Covenant School in Nashville, Leigh Rome and Brynn Jones (BA‘24) spoke with students about originalism’s rise and its role in gun safety legislation. The event was planned before the shooting took place.
Rome, who joined the event via Zoom, is a litigation and pro bono attorney at Giffords Law Center. Jones works for March for Our Lives as a judicial advocacy associate. The two organizations have partnered to promote the Law Student Gun Safety Pledge, which encourages law students to pledge to not work for law firms that force them to represent firearm companies or pro-gun lobbyers.
Following a moment of silence honoring the victims of the shooting, Rome and Jones outlined originalism’s path to prominence, Second Amendment Supreme Court cases, and how students can advocate for gun control.
The Rise of Originalism
Rome emphasized that originalism started out as an obscure judicial theory, emerging in the 1970s and 1980s as a conservative response to what legal theorists considered liberal judicial activism. Over time, the legal philosophy grew to dominate the nation’s highest courts.
According to Rome, originalists oppose the notion that the constitution is a “living document” and denounce what they consider to be excessive use of judicial review. She argued that this philosophy aids in the marginalization of historically oppressed people.
“Women, Black, Brown, Indigenous people – they were not consulted by the founders,” Rome told students about the framing of the Constitution. “They were explicitly and deliberately excluded from being present.”
In addition to these concerns, Rome stated that originalism represents a static approach to history and is driven by political outcomes.
“It seems that magically only a conservative judge can define what the founders were thinking,” Rome contended, “It’s coincidentally the party platform of the Republican party that nominated those judges in the first place.”
Citing Fordham University Chair in American History Saul Cornell, Rome referred to originalism as a “constitutional etch-a-sketch,” stating that judges can interpret the “original” intent of the founders as they please due to the limited and subjective information available on these goals. Rome and Jones added that originalist interpretations differ among judges and between judges’ own decisions.
“Lawyers and judges are not historians,” Rome said. “You’re not learning how to be a historian when you are in law school.”
Changing Interpretation of Second Amendment
Jones noted that there had not been a Supreme Court case about the Second Amendment for the first 150 years of the United States.
Rome and Jones then detailed four landmark Supreme Court cases addressing the Second Amendment: United States v. Miller (1939), which upheld the National Firearms Act of 1934; District of Columbia v. Heller (2008) which reversed Miller and deemed gun possession a “codified, pre-existing right”; McDonald v. City of Chicago (2010), which incorporated Heller to the states; and New York State Rifle & Pistol Association, Inc. v. Bruen (2022), which protected the ability to freely carry a handgun in public for self-defense.
Talking about Bruen, Rome pointed out that Justice Clarence Thomas’s majority decision quotes legal historians with connections to the gun industry.
“A lot of the historians that Thomas cites in his opinion are former law clerks of Thomas who are funded by members of the gun lobby, Federalist Society, and NRA for their historical research,” Rome said.
Thomas’s decision, according to Rome, was deliberately confusing.
“There’s one set of rules that Thomas puts out there for interpreting texts that support gun rights, and there’s another, more demanding set of rules that apply to legal texts that support reasonable gun safety legislation,” Rome said.
Rome also gave students examples of some cases resulting from the Bruen decision that she thinks are problematic. Specifically, she highlighted a case in which a judge ruled that guns cannot be taken from domestic abusers because men who beat their wives in the 1700s were allowed to keep firearms.
“Bruen is now commanding courts to measure contemporary gun regulations by using a yardstick of historical analogues,” Rome said.