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Abstract
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Lawyers and judges often use history in constitutional adjudication to provide context for constitutional interpretation. But there is debate about the extent to which historiography - the critical study of how history is written, developed by professional historians - is relevant to constitutional adjudication. This article argues that historiography has little relevance to constitutional reasoning grounded on historic legal sources such as court cases or legislation. But when constitutional reasoning relies on non-legal, general historical sources, historiography provides important insights. Arguments based on general historical sources - particularly originalist ones- can and should be critiqued on historiographical grounds. These methods show that general historical sources are unlikely to generate precise and objective constitutional meaning but canbe used to develop and constrain many constitutional arguments, including those concerning constitutional practice, purpose, or values. Historiographic methods are important for lawyers and judges seeking to critique or make constitutional arguments grounded on general history...
Heller:The American Supreme Court's Gun Rights Libertarianism
In Heller v District of Columbia, the United States Supreme Court relied on general historical sources to find the fixed textual meaning of the Second Amendment.87The case involved a Second Amendment challenge to a District of Columbia law prohibiting the possession of usable handguns in the home.For many decades prior to this,courts had held that the Second Amendment protected a right to a firearm that was related to service in a militia. In Heller, the Court overruled this prior interpretation, holding that the text and history of the Second Amendment guarantees an 'individual right to possess and carry weapons.' The Court reasoned, however, that this Second Amendment right was limited to the use of firearms 'in defense of hearth and home.'
This case has been roundly criticised by historians. One described the majority decision as 'a lawyer's version of a magician's parlor trick - admittedly clever,but without any intellectual heft.' Historiography helps to sharpen this criticism. In particular, it shows that the Court's argument fails to satisfy both the selectivity and over-claiming problems.
Historical account. The Supreme Court adopted a selective account of historyto show that the original meaning of this provision was to protect an individualright to possess a handgun. The Court begins this selective history by framing the historical inquiry as a choice between a Second Amendment that protects 1) 'only the [collective] right to possess and carry a firearm in connection with militia service' or 2) 'an individual right... for traditionally lawful purposes.' This binary framing of a collective versus individual right allows the Court to argue that all sources describing the Second Amendment as an individual right also support the idea that it extends beyond service in militia. Justice Stevens raised this framing problem in his dissent. He argues that the correct way to frame the question is not whether the Second Amendment protects a collective or individual right but instead the relevant 'scope' of the individual right to possess a firearm...
© 2022 The Author. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited
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