They want to know what the term meant when the Founders wrote the Constitution and they often look to English statutes.
Compare what Gray did in section IV of Wong Kim Ark with the approach that Scalia took in Heller. Gray points to the argument that the 1350 statute had incorporated the then existing common law:
It has sometimes been suggested that this general provision of the statute of 25 Edw. III was declaratory of the common law. See Bacon, arguendo, in Calvin' Case, 2 Howell's State Trials, 585; Westlake and Pollock, arguendo, in De Geer v. Stone, 22 Ch.D. 243, 247; 2 Kent Com. 50, 53; Lynch v. Clarke,1 Sandf.Ch. 583, 659, 660; Ludlam v. Ludlam, 26 N.Y. 356.
He places the source of these arguments:
But all suggestions to that effect seem to have been derived, immediately or ultimately, from one or the other of these two sources: the one, the Year Book of 1 Ric. III, (1483) fol. 4, pl. 7, reporting a saying of Hussey, C.J.,
that he who is born beyond sea, and his father and mother are English, their issue inherit by the common law, but the statute makes clear, &c.,
-- which, at best, was but obiter dictum, for the Chief Justice appears to have finally rested his opinion on the statute. The other, a note added to the edition of 1688 of Dyer's Reports, 184a, stating that, at Trinity Term, 7 Edw. III, Rot. 2 B.R., it was adjudged that children of subjects born beyond the sea in the service of the King were inheritable -- which has been shown, by a search of the roll in the King's Bench so referred to, to be a mistake, inasmuch as the child there in question did not appear to have been born beyond sea, but only to be living abroad. Westlake's Private International Law (3d ed.) 324.
In rebutting them, he shows that in 1483 and in 1688, it was not commonly understood that natural born included those born abroad to subjects. That's, at best, 99 years before the adoption of the Constitution.
Scalia would ask what the Founders understood "natural born" to mean in 1786, not 1483. In that sense, Lynch v. Clarke is a much better source of evidence than the 1483 statute that expressed doubts about foreign born subjects:
I believe it to have been the common law of ,England that children born abroad of English parents, were subjects of the crown. The statute, 25 Edward III., st. 2, De natis ultra marc, appears to have been declaratory of the old common law. In Dyer’s Reports, 224 a, note, it is said to have been adjudged in the King’s Bench in 7th Edward III., that children of subjects born beyond the sea, in the service of the king, shall be inheritable; and that this was resolved in parliament in the 17th Edward III. The fact of being in the king’s service, does not import being in his dominions, or within his ligeance. It was Lord Bacon’s opinion that the act was declaratory of the old common law. Mr. Reeves says it was made to remove some doubt which was entertained about the denization of children born of English, parents out of the kingdom. (2 Reeces’ Hist. of the English Law, 400.) In Bacon v. Bacon, (Cro. Car., 601,) two of the judges, Croke and Brampton, held that by the common law, a child born in Prussia of English parents, was a denizen, entitled to inherit and a liege subject. Berkeley, J., said it was rather by force of the statute 25 Edward III. In Doe dem. Thomas v. Ackland, (2 B. &. C., 779, 790 to 793,) Ch. J. Tindal says, that this was so by the common law, and to that effect he cites Hussey, Justice, in 1 Rich. 3, 4. Parke, Justice, in the same case, says that the 25 Edward III., was a declaratory act. (And see 22 Hen. VI., 38, per Newton, J.) Chancellor Kent appears to entertain the same opinion. (2 Kent’s Com., 50, 51, 2d ed.)
It should be noted that Lynch didn't just rely on the 1483 statute and the 1688 roll, it also relied on English legal treatises (Reece's Hist. of the English Law and Kent's Commentaries) and Bacon v. Bacon, in which two judges held that jus sanguinis
comes from common law, and Doe dem. Thomas v. Ackland where two judges also said that jus sanguinis
was a common law principle.
Lynch v. Clarke, written in 1844, is a much better indicator of what the Founders believed in 1785-1786 than a work that predated the founders by 99 years!
Gray, then, is concerned with whether there was a philosophical reason to include those born abroad in the definition of natural born. Scalia is much more concerned with whether the founders thought
the term included those born abroad.
The difference is that Gray could be completely right that no cases find a clear common law precedent for jus sanguinis
but the founders could still think that the term included those born abroad. They had Reece, Croke, Brampton, Tindal, Hussey, Parke and Chancellor Kent to support their beliefs. The founders didn't have the benefit of Justice Gray correcting their misinterpretations, nor even Binney. Remember, Binney's tract was written explicitly to correct
the public, and even correct Chancellor Kent!
However, I am not sure Gray's methodlogy is very different. I do not believe Gray would take an irrational postition that all undefined terms must be defined by the common law, whether or not they are not even common law term. Rather, he appeared to be defining a term that was clearly defined under the common law and no one argued it was understood to have a broader meaning. According to Gray, he looked to the common law because "the principles and history of which were familiarly known to the framers of the Constitution.' Hence, he too was trying to understand what the framers would have understood such language to mean, not enact a strict rule that the common law alone defined all terms.
Possibly, I think, though, that Gray's methodology stems from the ideas of natural law as separate and definable - stemming from first principles. So, if the framer's believed Kent that natural born was an inclusive term, then they were simply wrong.
That's because Common Law does not really help out here.
Scalia thinks he's defining common law when he references British statutes, etc:
The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an overreading of the prefatory clause.
NBC, you seem to be arguing the way I've characterized Gray's treatise - that if the Founders thought that British Common Law included jus sanguinis
and it, in fact, did not, then the Founders' beliefs are irrelevant and we go with British Common Law? Is that what you're arguing?