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Abstract
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In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, the Supreme Court adopted a text, history, and tradition modality to adjudicate Second Amendment claims.1 Lower courts have struggled to apply Bruen's framework and have grappled with the difficulty of evaluating historical sources, competing narratives about the Founding era, silences in the historical record, and the problem of analogizing Founding-era laws to modern statutes.
This Article offers some much-needed historical context or understanding the interpretive issues posed by Bruen, and it offers some insights into the nature of the Founding era's views of gun rights and gun regulation. The key to unlocking the historical meaning of the Second Amendment's text is recovering the interpretive assumptions and methods that lawyers would have used to read the text in 1791 and applying those assumptions to the historical reality Americans faced in the early years of the Republic.3 In addition to canvassing the statutory history of gun regulation, it is vital to recover the way common law practices, including peace bonds, were used to preserve the peace.4 Moreover, one must acknowledge the silences in the historical record. These silences are in some cases artifacts of the nature of historical archives and document preservation, and in other instances are a consequence of a dearth of research in this field.5 Finally, some silences reflect the fact that early America was a pre-industrial and agrarian society and simply did not face many of the gun violence problems that plague modern America.6 Given these facts, it is not surprising that Founding-era legislatures addressed problems they confronted and did not legislate to remediate problems they could not have foreseen.7
Finally, Bruen's methodology requires judges to distinguish between the actual history necessary to understand early American constitutionalism and a series of myths about guns and regulation that were created by later generations to sell novels, movies, and guns themselves.8 Unfortunately, many of these myths continue to cloud legal discussions of American gun policy and Second Amendment jurisprudence
Language: en |