Revisionist History? Responding to Gun Violence Under Historical Limitations

American Journal of Law and Medicine, Vol. 45, No. 2-3, 2019

14 Pages Posted: 29 Jun 2020

See all articles by Michael R. Ulrich

Michael R. Ulrich

Boston University - School of Law; Boston University School of Public Health; Yale Law School

Date Written: May 1, 2019

Abstract

In the D.C. Circuit case Heller v. District of Columbia (Heller II), Judge Kavanaugh wrote that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Now Justice Kavanaugh, will he find support on the highest court for what was then a dissenting view? Chief Justice Roberts, during oral arguments for Heller I, asked “Isn’t it enough to…look at the various regulations that were available at the time…and determine how these—how this restriction and the scope of this right looks in relation to those?” Justice Thomas, in cert denial dissents for recent Second Amendment cases, has referenced the importance of history in determining what the Framers understood the Second Amendment to protect. There is an open question as to what role history should play in evaluating gun control regulations and, given present circuit splits, it is only a matter of time before this debate finds its way to the highest court. Absent in these debates on history, and Second Amendment discussions more generally, is police power doctrine in the area of public health. The judiciary must recognize that police power enables the state to recognize the changes in firearm technology and the continued growth of gun violence plaguing this country. Looking to relevant public health law cases, particularly Jacobson v. Massachusetts, helps to illustrate that history has not, and cannot, be the sole focus in determining the scope of the state’s ability to tackle public health problems, including gun violence.

Keywords: gun violence, gun rights, Second Amendment, constitution, public health, health law, constitutional law, public health law, history, legal history, originalism, supreme court, police powers, vaccine, quarantine, social contract, regulation

Suggested Citation

Ulrich, Michael R., Revisionist History? Responding to Gun Violence Under Historical Limitations (May 1, 2019). American Journal of Law and Medicine, Vol. 45, No. 2-3, 2019, Available at SSRN: https://ssrn.com/abstract=3613851

Michael R. Ulrich (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Boston University School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

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