William Baude: Supreme Court's seismic term was notable for how it used history to reach decisions. He says the court finds itself using history for both legal and practical reasons. History, practiced properly, can supply objectivity, he says, giving justices a basis for deciding beyond personal views. Baude says the Supreme Court is ultimately deciding is law, not history for its own sake, and uses legal procedures to do it. The court is not trying to provide a broader history of our society’s attitudes toward guns, sex, sex or anything else, he writes. The ultimate question is what our most fundamental law provides, which means focusing primarily on the periods when the Constitution was written and amended.
In Dobbs and Bruen, the court makes it hard to recognize rights that are not explicitly enumerated in the Constitution. But another clause protects the “privileges or immunities of citizens of the United States” against state abridgment. At the Founding and during Reconstruction, many constitutional rights were subject to regulation in the name of the public good. Such arguments could support more regulation of Second Amendment rights than the court suggests.