Citation

Charles JD. Fordham Urban Law J. 2023; 51(1): 259-277.

Copyright

(Copyright © 2023, Fordham University School of Law)

DOI

unavailable

PMID

unavailable

Abstract

The Supreme Court's Second Amendment is a chronological chameleon. For one purpose, its meaning is fixed in the firmament of the Founding era.1 For another purpose, its language is anchored to the understanding of living Americans.2 One clause gets projected backwards, traced to antecedents in the 17th century.3 An adjacent clause gets projected forward, evolving alongside dynamic consumer preferences.4 Still other words or phrases are cloaked in meaning from different temporal epochs -- the Long 18th Century,5 the Antebellum South,6 the Reconstruction Era,7 and even the Reagan Revolution.8 This oscillation remains unexplained in the Justices' opinions. Why so many incompatible timelines?

Only Χρόνος knows.9

Debates over timelines are common in constitutional law.10 As Alison LaCroix says, "[q]uestions of time and temporality pervade American constitutional theory."11 Indeed, in Michael McConnell's view, "disagreements about time are at the heart of the most prominent arguments in constitutional theory."12 But, despite echoes elsewhere, those debates take on dramatic significance in the Second Amendment context. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a new past-bound Second Amendment test. There, the Court said that no gun regulation can be upheld unless it has an analogue in the distant past -- unless, that is, the government can "demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."13 History, tradition, and analogy alone now determine constitutionality.14 That historical test masks the ways that the Supreme Court's own pronouncements refer different questions to different time periods.

Language: en