The Supreme Court has once again declined to answer an important unresolved question in Second Amendment law: when interpreting the right to keep and bear arms, do courts look to 1791, when the Bill of Rights was ratified, or to 1868, when the Fourteenth Amendment was adopted? In United States v. Hemani, slip op., No. 24-1234 (U.S. June 18, 2026), the Court repeated the dodge it first deployed in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022): “As in Bruen, we need not decide today ‘whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868’ or when the Bill of Rights was ratified in 1791.” The honest truth is that the question has been resolved. The Court simply will not say so in a Second Amendment case.
The Time Period Is the Ballgame
This is not an academic parlor game. Under the Bruen framework, once the plain text of the Second Amendment covers your conduct, the burden shifts to the government to identify a long-standing, well-established historical tradition of firearms regulation analogous to the modern law it seeks to defend. Which historical record the government may mine therefore could be decides cases.
In 1791, when the Bill of Rights was ratified, there were almost no laws restricting the peaceable carrying of arms by free citizens. The Post-Civil War era tells a slightly different story. The late nineteenth century produced a wave of restrictive legislation, including the Black Codes and Jim Crow statutes enacted by Southern states for the express purpose of disarming freed Black Americans. That is precisely why the gun-control movement insists on 1868: not because of sound constitutional theory, but because the later period offers a richer menu of analogues, many of them racially motivated and constitutionally suspect.
Why 1791 Is the Only Defensible Answer
A written instrument means what it meant when adopted. As the Supreme Court has held since the nineteenth century and repeated in Bruen, “the Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now.” You interpret a contract when it is executed, not at a later date when one party finds the original terms inconvenient.
When it comes to the Second Amendment, it was ratified by Americans in 1791 and it means the same today as it did then. The 1868 Fourteenth Amendment did nothing more than take the Second Amendment, as it was understood in 1791, and applied it against state and local governments in favor of all American citizens including a new group of rights claimants, i.e., the freed African-American slaves.
Further, an incorporated right compounds the point. It cannot mean one thing against the federal government and another against the states. In McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court rejected the idea that the Fourteenth Amendment applies to the States only “a watered-down, subjective version of the individual guarantees of the Bill of Rights.” A 1868 rule for state cases and a 1791 rule for federal cases would give us two different Second Amendments. And every incorporation case the Court has decided looks to the Founding: the very decisions Bruen cited as exemplars examined the 1791 record, not the 1868 one.
Then Why the Dodge? One Justice
Here is the part that makes you the smartest person in the room. The reason the Court will not close this question is Justice Clarence Thomas whom is great on Second Amendment issues. The Second Amendment was incorporated against the states through the Fourteenth Amendment’s Due Process Clause, as nearly every right has been for decades. Justice Thomas believes that was a mistake. He maintains that the proper vehicle to apply the Bill of Rights against the states is the Fourteenth Amendment’s Privileges or Immunities Clause. Unfortunately, the privileges or immunities clause was gutted by the Supreme Court in The Slaughter-House Cases, 83 U.S. 36 (1873). As a result, the Supreme Court has subsequently deployed the Due Process Clause as the legal hook to incorporate the Bill of Rights against the states.
Although I am not offended by Justice Thomas’s view, the reality on the ground is that the privileges or immunities clause is not going to be revived anytime soon. Yet, this doctrinal fight is the reason the 1791 vs. 1868 question stays open. To revive the Privileges or Immunities Clause, the meaning of the right as understood in 1868 must carry independent weight. At the Bruen oral argument, NYRSPA’s attorney Paul Clement, sensing where Justice Thomas stood, conceded that the relevant date for interpreting the Second Amendment might (in some cases) be 1868. That answer was wrong, and the cost of that concession is the ambiguity the Court now hides behind.
Confirmatory, Never Controlling
There can be no serious debate that the current Supreme Court views the Founding era as the relevant period for interpreting the Second Amendment. One need only look at the Court’s decision in Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020). There, Chief Justice Roberts rejected over 30 state laws enacted in the latter half of the nineteenth century as arriving too late to establish an early American tradition delimiting the scope of the First Amendment’s religious clauses. Relatedly, Justice Barrett’s Bruen concurrence sounded the same warning against “freewheeling reliance on historical practice from the mid-to-late 19th century.” Post-ratification 19th century history can confirm the original 1791 understanding — but it can never override it.
To close, the argument for 1868 is self-defeating in one final respect. The legislators who framed the Fourteenth Amendment understood the right to keep and bear arms exactly as the Founders did. They sought to extend the 1791 right to Americans long denied it, not to redefine its content. The ratifiers of 1868 were themselves operating under the understanding of 1791. This was one reason why Congress created the Freeman’s Bureau and ratified the Fourteenth Amendment to overturn the Supreme Court’s Dred Scott decision. I have made the case for 1791 at great length in the Harvard Journal of Law and Public Policy, and the conclusion is not a close call: the key year is 1791 and relevant time period of America’s Founding.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.