Michael L. Smith (University of Idaho College of Law) has posted Historical Tradition: A Vague, Overconfident, and Malleable Approach to Constitutional Law on SSRN. Here is the abstract:
In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court overturned a century-old firearms licensing scheme that required people seeking concealed carry permits to demonstrate that they had a special need for self-defense. Rather than balancing government interests against the scope of firearms restrictions through strict or intermediate scrutiny, the Bruen Court held that a “historical tradition” approach was required. Under this approach, where the Second Amendment’s plain text covers an individual’s conduct, a law restricting that conduct must be consistent with “the Nation’s historical tradition of firearm regulation.”
At first glance, the historical tradition approach may seem desirable. One might agree with the Bruen Court’s assertion that historical legal analysis is easier than the alternative empirical analysis of gun restrictions and their impacts. And the historical tradition approach seems objective, requiring courts to determine historical legal facts rather than engaging in goal-oriented analysis of the desirability and effectiveness of firearms restrictions.
These first impressions are mistaken. The Bruen Court minimizes the difficulty of the historical tradition approach. And, through its vague and virtually nonexistent guidance on drawing historical analogies, the Court leaves numerous avenues for judges and Justices to inject their preferences as they weigh historical evidence and determine whether sufficient evidence exists to establish a historical tradition. This Article examines the Bruen Court’s statement of the historical tradition approach and reveals multiple instances in which the Bruen Court engaged in shoddy historical analysis and took an inconsistent approach to historic evidence in order to arrive at a desired result. In light of the complexity and malleability of the historical tradition approach, the Court will likely continue to twist this approach to achieve its desired ends—a phenomenon that will likely be magnified in the lower courts and in future decisions in Second Amendment and other constitutional cases.
Timely and recommended.
