Heller, Guns, and History: The Judicial Invention of Tradition

Abstract:     
It is a widely accepted fact that the firearm mortality rate in the United States exceeds that of any comparable nation. This article explores why, from a historical perspective, the United States permits widespread private use of firearms and how gun violence has been framed as a product of cultural tradition. It is not the purpose of this article to question the historical existence of such violence, which is overwhelming, but to question its historical normativity – that is, to ask why our culture has permitted this violence. As a descriptive matter, such violence has become a tradition; as a normative matter, by contrast, it is very much an invented tradition. What is invented, that is, is not the fact of its existence, but rather its elevation to a normative status which distorts the past and grants this tradition constitutional acknowledgment. What once was a regrettable and embarrassing fact of life has become a widely accepted, and often admired tradition.

Number of Pages in PDF File: 25

Keywords: Second amendment, guns, legal history, invented tradition, District of Columbia v. Heller, Johnson v. Mc’Intosh, Dred Scott v. Sandford

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