Law professors have finally found a positive aspect of Dobbs v. Jackson Women’s Health Organization, the case that overruled Roe v. Wade’s creation of constitutionally protected abortion rights. They claim that its jurisprudential logic requires overruling two of the cases most hated by the left-liberal legal academy—Buckley v. Valeo, which recognized the right of citizens to spend money on candidates and causes at election time, and New York State Rifle and Pistol Association v. Bruen, which invalidated a regime that required a license granted only under strict conditions to carry a gun.

　　But these claims misunderstand the common originalist basis, if not all the reasoning, of these decisions. Roe recognized an unenumerated substantive due process right that Dobbs found unsupported by text, history, or tradition. Buckley and Bruen concern rights expressly named in the Constitution: political speech under the First Amendment and the right to keep and bear arms under the Second. Originalism seeks to apply the Constitutions meaning as it was understood at the time of enactment. It is not a direction to apply judicial restraint, but rather to interpret the Constitution fairly. To be sure, it restrains judges from inventing unenumerated rights. But it also restrains judges and legislatures from balancing these rights away.

　　In a recent article, scholars Rebecca Brown, Lee Epstein, and Mitu Galuti discount the importance of this distinction, declaring it a “thin reed.” But for originalists, it is the beam around which constitutional law is built. Given past precedent, an unenumerated right may be protected, but only if it is deeply rooted in America’s traditions. Dobbs correctly held that abortion was not such a right because it lacked the long tradition of protection that undergirded other unenumerated rights.

　　By contrast, no one needs to infer from the due process clause that speech and gun rights are protected. The First and Second Amendments say so. Whatever the contest of the scope of these rights, their existence is secured by the text of the Constitution itself. Whatever the disputed meaning of the Ninth Amendment, it does not make enumeration irrelevant. Enumeration establishes a constitutional baseline that has made the treatment of enumerated rights different from that of unenumerated rights.

　　In If Roe … then Buckley, Lawrence Lessig’s treatment of the original meaning of the text is more sophisticated. He argues that the original First Amendment left legislatures the power to determine the contours of speech freedom for the public good and, therefore, that the regulation of independent political spending on behalf of candidates struck down in Buckley should have survived. His argument relies on the work of Jud Campbell, who argues that at the Founding, legislatures had broad authority to regulate rights such as freedom of speech in the interests of the “common good.”

　　These historical claims have been sharply contested, most recently by Philip Hamburger, who shows that the Founders wrote such rights down precisely to make them legal limits on government and enforceable by courts. In Hamburger’s view, Campbell turns the Constitution “upside down” by mistaking the Founders’ acceptance of narrow common law regulations, such as laws against libel or fraud, for a much broader power of government to reshape basic liberties. Narrow historical regulations of libel, fraud, bribery, or treating do not establish a general legislative power to redefine the freedom of speech.

　　For those concerned with the text, it would be particularly odd to apply this analysis to the First Amendment, which is expressly phrased as a restriction on the legislature: Congress shall make no law abridging the freedom of speech. It is not enough for Lessig to show that some Founding-era rights were regulable. He must show that an amendment phrased as a prohibition on Congress left Congress with substantial authority to define the very freedom it was forbidden to abridge. Lessig’s interpretation would instead convert this prohibition into a delegation to the legislature to decide on the wisdom of restrictions. And there is an additional reason to resist this reading. Putting legislators in charge of speech related to their reelection is a recipe for protecting incumbents.

　　We cannot make the error of ignoring the original meaning of the enumerated rights of the First and Second Amendments.

　　To be sure, Buckley, written long before the rise of modern originalism, is no jurisprudential masterpiece. But Buckley’s holding was right to invalidate limits on independent expenditures and campaign spending because they directly restrict political advocacy. Just as it would be unconstitutional to impose a ceiling on the New York Times and other media for editorializing or reporting, so too is it unconstitutional to impose a ceiling on Bill Gates or any other citizens. (It is not possible to make a distinction because the New York Times is the press without giving the government the authority to determine who the press is.) Neutral principles are especially needed in campaign finance because campaign rules structure the entire political process, because the First Amendment reflects distrust of government, and because incumbent legislators have obvious incentives to skew the rules.

　　Lessig also has a specific public-good argument, which he thinks has more clearly defined boundaries than it does. He seems to think that broadening the legitimate concern about quid pro corruption that justifies restrictions on the amount of campaign contributions to mean politicians dependence on outside interests justifies restricting the wealthys independent expenditures. But as I note in my book, Why Democracy Needs the Rich, politicians are even more dependent on the long-term influence of the professional influencers—the media, academics, and entertainers. It is unclear why, under Lessig’s theory, Congress could not decide to regulate that influence as well. Nor can legislatures regulate speech to protect “undistorted” public opinion. The Constitution provides no baseline to determine when opinion is distorted. Indeed, public opinion is created through the exercise of First Amendment freedoms.

　　Finally, Lessig argues that Bruen supports the case for overruling Buckley. This is amusing because Brown, Epstein, and Gulati want to overrule the case on which Lessig wants to rely on because its test is difficult to apply. But in any event, even if Bruen’s analysis were to be applied in the First Amendment context, Bruen does not reveal what Lessig thinks it does. Bruen does not stand for judicial retreat whenever the legislature invokes the public good. It stands for the proposition that when constitutional text covers protected conduct, the government must justify restrictions by reference to historically grounded limits.

　　For instance, that framework may support laws against bribery and other practices historically understood as corrupting elections. It does not support a general legislative power to use theories of “dependency” to ration “political advocacy.” A colonial law forbidding candidates from buying punch for voters provides an analog for vote-buying, not for limiting independent expenditures on campaign books and television spots, the modern equivalent of pamphlets. Lessig thus uses Bruen to reach a result of the kind that Bruen itself would not accept.

　　Brown and her colleagues’ most insistent point is not jurisprudential or historical as is Lessig’s, but more pragmatic. They argue that lower courts have struggled to apply Bruen, and its ambiguities have led to ideologically inflected decisions in the lower courts. But their empirical evidence, at best, is an argument for refining Bruen’s implementation, a process that has already begun, not for abandoning the judicial protection of an enumerated right. It is often the case that a series of cases in an area is needed to give direction to lower courts. The Court can refine its reasoning for clarity while adhering to a decision for its correctness.

　　Bruen’s result is easy for an originalist. The New York law at issue required licenses to carry a gun outside the home. And to get a license, the applicant had to show a “special need.” Enjoying the right to bear arms cannot require showing a special need to exercise it. That is a contradiction in terms. Thus, Bruen itself was an easy case.

　　The Court, however, sought to guide the lower Courts by stating that when the conduct fell within the terms of the Second Amendment, it could be regulated only if such regulation had traditionally curtailed the scope of the right. Again, Bruen itself was an easy case on that score because there was no history and tradition of bureaucratic licensing schemes, like those in New York, which undermined the purpose of the right. But Bruen did leave it somewhat unclear how historical examples were to be used.

　　Three years ago, United States v. Rahimi made clear that the “fit” between the historical examples of regulation and modern regulation was looser than some lower courts had presumed. Courts should compare modern law with historical regulations by asking whether they address a similar problem for a similar reason and impose a comparable burden on the right. The authors of the Bruen article are right that the test is hardly mechanical, but it still corrects one kind of mistaken understanding of the lower courts.

　　This term, the Court will decide yet another gun rights case, offering opportunities for further refinement. In the interim, scholars have suggested various frameworks to bring more order to the law. For instance, Randy Barnett and Nelson Lund suggest what they regard as a clearer test: courts should require the government to prove that a challenged restriction of the right to keep or bear arms does not vitiate the ability of Americans to use firearms to defend themselves against violent threats that the government cannot or will not prevent.” Here, the historical analogs would provide useful, though not exclusive, guidance. Scholars can help the Court to better calibrate its doctrine and work the law purely over the long term. We cannot expect judges to do all the heavy lifting unassisted. But any birthing difficulties in making Second Amendment doctrine more tractable do not justify overruling Bruen’s correct result.

　　Lessig contends that Roe and Buckley must stand or fall together. Brown, Epstein, and Gulati argue that Roe and Bruen must stand and fall together. But both make the same error of ignoring the original meaning of the enumerated rights of the First and Second Amendments. That distinguishes the result in Buckley and Bruen from Roe, making the latter suitable for overruling. The Constitution does not require judges to be libertarians in every case. But it does require them to distinguish between liberties judges invented and liberties the people wrote down.