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Culture War Roundup for the week of May 11, 2026

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If we are doing constitutional history (as the originalist movement says we should be) this is the key point. The people who wrote the Constitution in 1789 didn't think it needed a Bill of Rights at all because the Constitution didn't grant the federal government the kinds of power that a Bill of Rights was needed to restrict, and the people who ratified the Constitution and Bill of Rights (which they added because they quite properly didn't trust the feds on that point) definitely didn't want the Bill of Rights to be enforceable against the States.

Some of the rights in the Bill of Rights are rights the framers considered fundamental, so as well as putting them in the BoR they also wrote them into their state constitutions. Free speech and criminal juries are the classic examples*. But some of the BoR is about federalism, not fundamental rights. In particular, the Establishment clause was pure federalism (most states had state-level established religions in 1789, although not for long afterwards) and the 2nd amendment was mostly federalism (most states had some kind of RKBA in their state constitutions, but nothing as broad as the right protected against the feds by the 2nd amendment - the framers wanted the states to have the right to regulate their own militias).

The fundamental rights protected by the Bill of Rights should have become enforceable against the States under the Privileges and Immunities clause of the 14th amendment (turned into an inkblot by the Gilded Age SCOTUS in the Slaughterhouse cases) and actually did under civil rights era substantive due process doctrine.

A muscular court would roll it back and return most speech legislation to the states, but it is what it is for now.

That would be dubiously faithful to the Constitutional text given that the 14th amendment exists in a way it didn't at the founding. It would also be lousy policy given the availability of forum-shopped strategic lawsuits against online speech. But the weak version of this claim is correct - a serious originalist Court would need to think about how to mesh the founding-era understanding of the Bill or Rights as a backstop to federalism as much as to fundamental rights with the 14th amendment requirement to protect citizens' rights against overweening state government, and the only justice who has even tried to do that is Thomas in his Establishment clause dissents. The fact that the substantive due process approach to incorporation that the Court had to adopt in order to avoid publicly calling out Slaughterhouse as a Dredd Scott tier mistake is intellectually incoherent doesn't help.

* SCOTUS has never enforced the 7th amendment requirement for civil juries against the states - I'm not sure how this relates to founding-era practice.

Nothing in the 2nd Amendment implies it's only a limitation on the Federal government. It's frankly bizarre to flip the readings of the 1st and the 2nd in this manner; the 1st specifically is written to prohibit Congress from taking an action, whereas the 2nd specifically says the rights of the people to keep and bear arms shall not be abridged period, with no mention of who specifically is prohibited from abridging their rights.

The original intention of the whole Bill of Rights was that it was a limitation on the Federal government only. For SCOTUS to interfere in the internal affairs of a state in the name of enforcing the federal Bill of Rights would have been an unacceptable abridgement of state sovereignty according to both the Federalists and the Anti-Federalists.

I think the preambulatory clause of the 2nd amendment has something to do with the intended meaning - it would be odd if it was a pure rhetorical flourish on the part of the 1st Congress. The obvious interpretation of "A well-regulated militia being necessary to the security of a free State" is that the drafters of the 2nd amendment expected someone to be regulating the militia, and given the structure of the original constitution, the power to regulate the militia is shared between Congress and the states, and founding-era practice was that the power retained by the states included powers that the modern 2nd amendment movement would prefer the states not to have.

Part of the problem here is that there isn't a standard originalist theory of how the Bill of Rights became incorporated against the States. The relevant original intent is the original intent of the framers and ratifiers of the 14th amendment, and this is hard to work out because the Jim Crow-era SCOTUS rendered the Privileges and Immunities clause nugatory in a way which was almost certainly not compatible with the intent of the Reconstruction Congress. In practice originalist thought cashes out as "the 1860s Congress intended to reach back in time and impose a 1790s understanding of the Bill of Rights on the States" which usually leads to coherent law even if it doesn't make sense as political history. But it doesn't give a clear answer in cases where the 1790's understanding of the Bill of Rights doesn't make sense without federalism, like the Establishment clause, or the carefully negotiated compromise about who controlled the militia. Local byelaws against going armed in urban areas were a lot rarer in 1790s America than in the UK (where they were ubiquitous) but nobody at the time thought they were constitutionally problematic (except in Vermont, which had a much broader RKBA clause in its early state constitution than the other states), ditto state-level bans on gun ownership by free blacks if you want a less happy precedent.

The other problem is that handguns that actually worked were not available at the time of the founding, so applying the 1790's understanding of the RKBA to the most important questions in modern gun policy (which are largely about routine concealed carry of handguns) involves somewhat strained hypotheticals.

The relevant original intent is the original intent of the framers and ratifiers of the 14th amendment, and this is hard to work out because the Jim Crow-era SCOTUS rendered the Privileges and Immunities clause nugatory in a way which was almost certainly not compatible with the intent of the Reconstruction Congress.

There are some law review articles arguing why Slaughterhouse was correctly decided, which even if not persuasive, marshal some interesting evidence against the now-common position that Slaughterhouse was beyond wrong.

Rehabilitating the Slaughterhouse Cases by Maltz
Privileges or Immunities by Hamburger
The Fourteenth Amendment and the Privileges and Immunities of American Citizenship by Lash (book, not article)