The Supreme Court again turned to scholarship by Richmond Law faculty to inform and explain one of its high-profile decisions released in late June.
Justice Clarence Thomas drew on research and analysis by Kurt Lash, E. Claiborne Robins Distinguished Chair in Law, for the majority opinion in New York State Rifle & Pistol Association v. Bruen. The decision struck down a New York law requiring an applicant for a license to carry a concealed handgun outside the home to show “proper cause.”
According to Thomas, one important consideration in the case — and this is where Lash’s analysis played a role — is whether to examine the meaning of the Second Amendment as it was understood in 1791 or when it was applied to the states with the ratification of the 14th Amendment in 1868. Thomas calls the question “an ongoing scholarly debate” and quotes Lash. Thomas then writes that the debate is inconsequential to Bruen because public understanding of public carry “was, for all relevant purposes, the same” in 1791 and 1868.
Lash’s cited paper, “Re-speaking the Bill of Rights: A New Doctrine of Incorporation,” appeared on SSRN in January 2021.
