Lawyers, Historians and 'Law Office History'

Abstract

Fifty years ago, historian Alfred H. Kelly coined the term “law office history” to describe history as written by legal advocates rather than dispassionate scholars, which seeks to manipulate historical data to achieve a legal end. Ironically, Kelly published his article, not in a historical journal, but in the Supreme Court Review. The choice of venue reflected the simple fact that lawyers and legal academics had not invaded the historians’ turf so much as they had filled a vacuum within it, a vacuum created by historians’ shift toward social history.

The “law office history” charge was recently revived as part of the controversy surrounding the Court’s recognition of an individual right to keep and bear arms. This article will explore the uses and abuses of history that occurred in connection with that controversy. If “law office history” is taken as describing history written as manipulation, it becomes apparent that the very historians who lightly invoke that term are in fact among its most enthusiastic practitioners. We will also examine instances in which courts have been influenced, sometimes to their regret, manipulations of the historical record.

Keywords: second amendment, slavery, history

JEL Classification: K10, Z18