The Proper Role of History and Tradition in Second Amendment Jurisprudence
- Author(s): Nelson Lund
- Posted: 9-2019
- Legal Studies #: 19-17
- Availability: Full text (most recent) on SSRN
The Supreme Court’s decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010) resolved two foundational issues. First, the Second Amendment protects the inherent right of individuals to self-defense, not a right of states to maintain an organized militia. Second, the Amendment applies to state and local governments in the same way that it applies to the federal government. Both cases also held that a general ban on the possession of a handgun in one’s home are unconstitutional. In the ensuing decade, the lower courts have confronted many questions about the scope and application of the Second Amendment that were left unanswered by these decisions.
Shortly after the retirement of Justice Anthony Kennedy, who was probably the median voter in the 5-4 decisions in Heller and McDonald, the Court granted certiorari in New York State Rifle & Pistol Association v. City of New York. This challenge to New York City’s uniquely severe restrictions on transporting firearms in public raises another foundational issue: whether the Second Amendment right to “bear Arms” is protected outside one’s own home. New York has attempted to render this case moot by changing the law to accommodate the plaintiffs’ very specific and modest demands. The plaintiffs maintain that the case is not moot, and the Court has not yet ruled on that issue.
Whether in this case or some other, Justice Brett Kavanaugh will have an opportunity to press an unusual jurisprudential approach that he developed in a dissenting opinion while he was on the D.C. Circuit. He contended that Heller requires courts to apply a history-and-tradition test to every issue that is not resolved by the constitutional text. No circuit court has adopted this position. Many, however, have employed a version of the means-end analysis that the Supreme Court routinely uses in analogous areas of constitutional law, and none has rejected the use of such analysis.
This Article will show that then-Judge Kavanaugh misinterpreted Heller, and it will explain why neither he nor other members of the Supreme Court should adopt the approach that he mistakenly imputed to Heller. Other circuit judges have developed a better framework, in which text, history, and tradition are relied on when, and only when, those sources provide reasonably clear guidance. In other cases, which in practice will be much more numerous, judges should engage in means-end analysis that is informed by what is known about the purpose of the Second Amendment from its text and history.