The Concrete Second Amendment: Traditionalist Interpretation and the Right to Keep and Bear Arms

26 Texas Review of Law and Politics 103-157 (2021)

55 Pages Posted: 4 May 2022 Last revised: 21 Jul 2022

See all articles by Michael P. O'Shea

Michael P. O'Shea

Oklahoma City University School of Law

Date Written: April 8, 2022

Abstract

(07/20/2022: The prepublication version originally posted has been replaced with the final published article.)

Since the modern affirmation of the Second Amendment right to keep and bear arms in District of Columbia v. Heller (2008), much scholarly attention has focused on two issues: the soundness of Heller's originalist approach to the Second Amendment, as well as the pragmatic question of whether the Second Amendment right is now being underenforced by the lower federal courts.

This Article examines a subject at the intersection of both of these questions: the role of traditionalist interpretation in interpreting and applying the Second Amendment. It particularly focuses on how traditionalist interpretation sheds light on the constitutionality of restrictions on the carrying of handguns for self-defense, the issue before the U.S. Supreme Court in the case of New York State Rifle & Pistol Association v. Bruen.

Traditionalist interpretation focuses on the concrete practices of subnational governments and of individual citizens as an aid to defining the content of constitutional rights. It differs from originalist interpretation, yet has deep historical roots in the jurisprudence of the American right to arms. Heller itself embraced numerous doctrinal tests that clearly reflect a traditionalist orientation. Moreover, a number of contemporary jurists, in view of the lower courts' weak enforcement of Heller, have called for deciding Second Amendment cases based on criteria of "text, history, and tradition," which they hope will lead to a more uniform and less grudging enforcement.

This Article unpacks the nature of traditionalist interpretation by distinguishing two basic forms of traditionalist argument. In the negative, or limiting form of argument, courts find the existence of an enduring practice by state or municipal governments to provide a reason to uphold the practice against a constitutional rights challenge. Conversely, the positive, or constitutive form of traditionalist argument looks to the practices of individuals as providing a reason to deem those practices to be constitutionally protected. The former tends to limit the scope of constitutional rights claims, while the latter tends to extend them.

This distinction proves highly illuminating for understanding the reception of the Second Amendment since Heller. Lower courts have indeed been quite willing to embrace the limiting, negative form of traditionalist reasoning in order to reject plausible Second Amendment claims -- often taking aggressively broad views of relevant rights-limiting "traditions" even when supported only in a minority of jurisdictions. What the lower courts have mostly rejected, instead, is the reception of the constitutive, rights-expanding traditionalist elements that were prominent in Heller.

Thus, if "text, history, and tradition" is to provide the corrective to Second Amendment jurisprudence that many desire, it must be through decisions that specifically stress the rights-constitutive aspects of traditional practices such as the widespread carrying of defensive handguns, or the widespread possession of semiautomatic firearms that thereby enter "common use." The Article concludes by showing how the Bruen case offers a strong opportunity for righting the constitutional course in this way.

Keywords: Second Amendment, NYSRPA v Bruen, concealed carry, constitutional interpretation, tradition, practice

Suggested Citation

O'Shea, Michael P., The Concrete Second Amendment: Traditionalist Interpretation and the Right to Keep and Bear Arms (April 8, 2022). 26 Texas Review of Law and Politics 103-157 (2021), Available at SSRN: https://ssrn.com/abstract=4078897

Michael P. O'Shea (Contact Author)

Oklahoma City University School of Law ( email )

800 N. Harvey Ave.
Oklahoma City, OK 73102
United States
(405) 208-5215 (Phone)

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