'Will the Meaning of the Second Amendment Change . . . ?' Party Presentation and Stare Decisis in Text-and-History Cases

98 New York University Law Review Online 453 (2023)

University of Missouri School of Law Legal Studies Research Paper

18 Pages Posted: 8 Jun 2023 Last revised: 6 Feb 2024

See all articles by Haley Proctor

Haley Proctor

University of Missouri at Columbia - University of Missouri School of Law

Date Written: January 31, 2023

Abstract

In the wake of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, more Second Amendment challenges will turn on courts’ answers to factual questions about history—answers courts may formulate based on the historical evidence compiled by the parties to the dispute. These answers will become precedents that tell us what types of regulations the Second Amendment does and does not permit. What happens to those precedents when new historical evidence comes to light? This Essay argues that the Court should be willing to revisit its precedents when historical evidence demonstrates error in an earlier decision. Revisiting erroneous precedents coheres with the Bruen Court’s theory of constitutional meaning, and it answers the dissent’s concern about the imperfect nature of the historical inquiry that occurs in litigation.

Keywords: NYSRPA v. Bruen, Second Amendment, stare decisis, text-and-history

Suggested Citation

Proctor, Haley, 'Will the Meaning of the Second Amendment Change . . . ?' Party Presentation and Stare Decisis in Text-and-History Cases (January 31, 2023). 98 New York University Law Review Online 453 (2023), University of Missouri School of Law Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4458279 or http://dx.doi.org/10.2139/ssrn.4458279

Haley Proctor (Contact Author)

University of Missouri at Columbia - University of Missouri School of Law ( email )

Columbia, MO MO 65211

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