Revisionist History? Responding to Gun Violence Under Historical Limitations

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