History's Identity Crisis

Abstract

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges.  This article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past.  Is it traditional legal reasoning – weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about – conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of fact-finding – generalized and closer to policy – such that we want appellate judges to make the calls after studying in the law library or digesting dozens of amicus briefs?  This matters because each alternative identity carries significant practical litigation consequences, and – because of those consequences -- the players are motivated to manipulate the different labels in strategic ways.

I call for some nuance and “bottom line thinking:” if what really matters is who makes the decision and under what conditions, then we should ask that question directly and specifically rather than getting hung up in definitions and labels. This article assumes a good-faith judge confronting a history-based test in the Second Amendment context, and then offers a way to help: by detangling this identity crisis, exploring the implications of each alternative identity, and then offering preliminary thoughts on a possible path forward.