87 Pages Posted: 20 Apr 2012 Last revised: 27 Dec 2014
Date Written: January 18, 2013
In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test that many jurists and scholars consider exceedingly manipulable.
This Article argues that courts could look to the Supreme Court’s Seventh Amendment jurisprudence, and in particular the Seventh Amendment’s “historical test,” to help them devise a test for the Second. The historical test relies primarily on analogical reasoning from text, history, and tradition to determine the constitutionality of any given practice or regulation. Yet the historical test is supple enough to respond to the demands of a twenty-first-century judicial system. As such, it provides valuable insights, but also its own set of problems, for those judges and scholars struggling to implement the right to keep and bear arms.
Keywords: gun, firearm, militia, Second Amendment, first amendment, Fourth Amendment, guns, firearms, Heller, Mcdonald, jurisprudence, doctrine, free speech, arms, history, Seventh Amendment, jury, trial, Constitution, Bill of Rights, originalism, common law, custom
Suggested Citation: Suggested Citation
Miller, Darrell A. H., Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second (January 18, 2013). Yale Law Journal, Vol. 122, No. 4, 2013. Available at SSRN: https://ssrn.com/abstract=2017288