Judging History: How Judicial Discretion in Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment Cases
29 Wm. & Mary Bill Rts. J. 413 (2020)
41 Pages Posted: 21 May 2020 Last revised: 22 Mar 2021
Date Written: April 25, 2020
This article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis — specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality — can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.” Examining how courts answer these threshold questions and make nuanced judgments about history is necessary if courts are going to make consistent and predictable decisions in Second Amendment cases.
In researching this article, the author looked at fifty of the most significant Second Amendment cases across the federal circuit courts and analyzed their treatment of several methodological points. Ultimately this research shows that, while there is near unanimous national consensus within the federal circuit courts on the overall methodology with which to assess Second Amendment challenges — a framework for deciding cases known as the “two-step test” or the “two-part test” — there are important unresolved methodological issues that have an important impact on how Second Amendment cases are analyzed and decided. These methodological issues, which exist within the consensus framework, allow judges to influence the ultimate decision in a case while appearing to apply objective criteria. This article aims to bring these issues to the fore and to encourage further consideration of these important originalist methodological points.
Keywords: Second Amendment, 2nd Amendment, Fourteenth Amendment, Gun Rights, Incorporation, Originalism, Fixation Thesis, Legal History, Original Public Meaning
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