Yesterday, I was surprised and delighted to learn that Justice Jackson had cited Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013), in her dissenting opinion in Wolford v. Lopez, 609 U. S. ___ (2026) (slip op., at 15 n.8) (Jackson, J., dissenting). Justice Jackson cited me to establish the interpretation-construction distinction. “Interpretation” is the activity that discovers the meaning or communicative content of constitutional provisions. “Construction” determines their legal effect, including the articulation of implementing doctrines and the decision of particular cases. Naturally, I was curious: why had Justice Jackson invoked a general and abstract distinction from originalist constitutional theory in a case about the Second Amendment?
To answer that question, we need to back up. In Wolford, the Supreme Court held that Hawaii could not require a concealed-carry permit holder to obtain a property owner’s express consent before carrying a firearm onto private property open to the public. The holding applies New York State Rifle & Pistol Ass’n v. Bruen, 597 U. S. 1 (2022), and the Court divided 6–3 along familiar lines. Jackson’s citation to my article is relevant to a methodological exchange between Justice Barrett and Justice Jackson over the structure of Bruen’s first step. That exchange is, in the vocabulary of contemporary originalist theory, a disagreement about where interpretation ends and construction begins.
Bruen prescribes two steps. At the first, a court asks whether the Second Amendment’s “plain text” covers the regulated conduct. At the second, the court asks whether the challenged regulation is consistent with the Nation’s historical tradition of firearm regulation: the second step required the Bruen Court to devise an implementing rule, the much-discussed historical analogue test. The interpretation-construction distinction maps onto this structure. Interpretation ascertains the communicative content of the constitutional text—the linguistic meaning the words contributed at the time of framing and ratification: Bruen follows Heller by interpreting “the right to bear and keep arms” as a reference to a pre-existing legal right. Construction determines legal effect—the doctrines and decisions that give the text application, including in cases where communicative content runs out. Bruen engaged in construction when it adopted the historical analogue test: that test is the implementing doctrine that fixes the current legal effect of the communicative content of the operative text.
That brings us back to Wolford and the exchange between Justices Barrett and Jackson. The question that divides Barrett and Jackson is how much of Bruen’s first step is interpretation and how much is already construction.
Justice Barrett treats the first step as a fixed-meaning, plain-text inquiry. On her account, history enters at the first step only to elucidate communicative content, and “historical gun regulations” are reserved for the second. She states the point directly in her first footnote: the text has a fixed meaning that must be satisfied before a law is deemed presumptively unconstitutional, and the only live question is whether courts may “smuggle additional limits, drawn from our regulatory tradition, into the plain-text stage.” Wolford, 609 U. S., at ___ (Barrett, J., concurring) (slip op., at 2 n.1). Her answer, she writes, “is and always has been no.” This is a recognizably originalist position. It accepts the fixation thesis and insists that the communicative content of the operative terms governs the first step, while consigning the harder, judgment-laden inquiry to the second. That is a claim about the location of the construction zone, not a denial that one exists.
Justice Jackson pulls the two steps apart in the opposite direction. She argues that the first step cannot be a pure plain-text reading, because the Second Amendment “codified a pre-existing right,” and the pre-existing limits on that right—here, the property owner’s right to exclude—are “part and parcel of it.” Wolford, 609 U. S., at ___ (slip op., at 9) (quoting United States v. Rahimi, 602 U. S. 680, 737 (2024) (Barrett, J., concurring)). On her view, the question is how a property owner must communicate the decision to exclude, and “[t]he Second Amendment has nothing to say about that.” Id. (slip op., at 6). Determining the content of those pre-existing limits is an inquiry that history must inform and that communicative content alone does not resolve. It is at this point that she invokes the distinction. The question whether implied consent to armed entry is part of the codified right is, on her view, not answered at the level of linguistic meaning. The first step opens onto a zone of judgment.
This is the answer to the question with which I began: why did Justice Jackson invoke a general and abstract distinction from originalist constitutional theory in a case about the Second Amendment? The answer to that question is that the distinction determines the scope of the inquiry for Bruen’s step one. Justice Jackson, who writes that she believes Bruen was wrongly decided, deploys a tool developed within originalist theory to widen the space for judgment at the first step. She charges that the majority’s two-step division leaves judges “free to insert any meaning they desire into the text of the Second Amendment.” Wolford, 609 U. S., at ___ (Jackson, J., dissenting) (slip op., at 17). Justice Barrett, an originalist, resists the operation of that tool at the first step in order to keep the inquiry text-bound. She quotes that very charge and answers it: “No one disputes that the Second Amendment’s text has a fixed meaning.” Id. (Barrett, J., concurring) (slip op., at 2 n.1). The disagreement is not whether the text has a fixed meaning but where construction begins. The distinction appears on both sides of the exchange, and each Justice invokes or resists it to control where the construction zone falls. The interpretation-construction distinction is not the property of a single methodological camp. It is a piece of analytical apparatus, and in Wolford it is being contested across camps.
The fuller theoretical statement of what is at stake appears in the originalist literature on history and tradition. Randy Barnett and I have argued that the appeals to history and tradition in Dobbs, Bruen, and Kennedy are best understood through the interpretation-construction distinction: history can serve as evidence of original communicative content, but where that content underdetermines outcomes, history enters again at the stage of construction. See Randy E. Barnett & Lawrence B. Solum, Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev. 433 (2023). On that framework, original meaning is fixed, and it does not fully determine the decision of constitutional cases, leaving a construction zone in which an exercise of judgment is unavoidable. Justice Barrett’s first footnote is, in effect, the contention that Bruen’s first step contains no such zone—that the subsidiary questions about “the people,” “Arms,” and “bear” exhaust the inquiry, and that everything else belongs to the second step. Justice Jackson’s footnote is the contrary contention that the codification of a pre-existing right carries the construction zone into the first step.
I bracket the merits of the Second Amendment holding, which raise distinct questions about the application of the historical-analogue test. The point here is narrower and methodological. Wolford is a live instance of the interpretation-construction distinction doing contested work at the Court, with the Justices disagreeing not over whether the distinction is sound but over where, within Bruen’s two-step structure, the line between communicative content and constitutional construction should be drawn. That the resistance to opening a construction zone at the first step comes from within originalism, and the pressure to open it from a Justice who rejects Bruen, is the feature of the case most worth marking from a theoretical perspective.