Historical Tradition: A Vague, Overconfident, and Malleable Approach to Constitutional Law

Abstract

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court overturned a century-old firearms licensing scheme that required people seeking concealed carry permits to demonstrate that they had a special need for self-defense. The Court did so by applying a “historical tradition” approach to determine the scope of Second Amendment protection. Under this approach, where the Second Amendment’s plain text covers an individual’s conduct, a law restricting that conduct must be consistent with “the Nation’s historical tradition of firearm regulation.”

At first glance, the historical tradition approach may seem objective and easier than an empirical analysis of gun restrictions and their impacts. These first impressions are mistaken. In fact, the historical tradition approach presents significant challenges for attorneys and judges—challenges that the Bruen Court minimizes. And, through its vague and virtually nonexistent guidance on drawing historical analogies, the Court leaves numerous avenues for judges and justices to inject their preferences as they weigh historical evidence and determine whether sufficient evidence exists to establish a historical tradition. Indeed, within the Bruen opinion itself there are multiple examples of shoddy historical analysis and inconsistent approaches to historic evidence, all aiming to achieve a desired result. In light of the complexity and malleability of the historical tradition approach, the Court will likely continue to twist this approach to achieve its desired ends—a phenomenon that will likely be magnified in the lower courts and in future decisions in Second Amendment and other constitutional cases.

Keywords: Constitutional Law, Constitutional Interpretation, Originalism, Second Amendment, History, Scrutiny, New York State Rifle & Pistol Association Inc. V. Bruen