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Abstract
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Never before has the Supreme Court relied on the history and tradition standard to such a magnitude as in the 2021 term to determine the scope of a range of consti- tutional rights. The Court in New York State Rifle & Pistol Ass'n v. Bruen doubled down on the historical standard established in District of Columbia v. Heller, 1 mandating that lower courts compare the modern firearms regulation in dispute against the Second Amendment's text and its vast (and often conflicting) historical understanding.2 Alone, this standard is amorphous and far-reaching. 3 To further com- plicate matters, the Court's historical analyses in both Dobbs v. Jackson Women's Health Organization and Kennedy v. Bremerton School District fail to square neatly with the historical analyses the Court engaged in Bruen, leaving federal courts of appeal and district courts in difficult places in applying precedent.4
Post-Bruen, the Supreme Court has tasked judges with making value judgments on the significance of laws passed hundreds of years ago, with determining how these laws affected the public at large, and with deciding whether the historical laws are "relevantly similar" to the modern laws in question--tasks best completed when researched against the backdrop of U.S. history as a whole. 5 The reality is that most lawyers and judges are not trained historians, and that they are not experts on the subject. By nature of litigation, court-led historical inquiries are necessarily surface level and lopsided, favoring some historical evidence over the other, and often outright missing the proper historical context to frame the evidence provided. Applying certain facts of history and pronouncing those facts as the definitive answer by way of undercutting or dismissing other factual occurrences transforms the truth and fosters serious ramifications that stretch beyond the law and bleed into all facets of society, culture, and politics. 6
Apart from truth-preserving concerns, an additional problem remains: the work- ability of the test itself. Lower courts lack the time and resources to engage inproper, full-scale historical studies.7 Supreme Court Justices have near unlimited resources at their fingertips to engage in lengthy historical inquiries. These Justices hire the top law students in the country as clerks, have the best access to legal resources, and most significantly, enjoy ample time to dig through mountains of historical documents and amicus briefs. Lower courts, however, face a much higher caseload, a much tighter timeline, and have far fewer hands on deck to help reach a proper decision using the history and tradition standard.
In reaffirming this standard, the Supreme Court provided no guidance to lower courts on how to apply and analyze the history and tradition standard. Along with balancing the lack of resources in deciding cases with the history and tradition framework, lower courts must face the reality that this standard presents ample opportunity for one-sided historical analysis. To combat the temptation of conduct- ing unbalanced and cursory reviews of historical sources and to ensure consistent interpretation and application of the law, lower courts must administer a workable, practical, and predictable method to apply the history and tradition standard. Acting within the vague boundary lines set out by the Court in Bruen, Dobbs, and Kennedy, lower courts must evaluate the history and tradition surrounding a given right through finding historical evidence that the right, or foundations of the right, sur- vived to become the law of the Founders or adopters. 8 But lower courts must recognize the pitfalls of the history and tradition test. Lower courts should avoid over-relying on amicus briefs,9 listening to "law office history,"10 or scrutinizing historical outliers in drawing conclusions.
Language: en |