The Ambitions of History and Tradition—In and Beyond the Second Amendment

Guest Blogger

Joseph Blocher & Reva Siegel

Earlier this month, the Supreme Court signaled that it is interested in hearing a challenge to the constitutionality of assault weapons bans “in the next Term or two.” In hearing such a case, the Justices would revisit the history-and-tradition (HAT) mode of review that the Court adopted in Bruen and refined in Rahimi, and has increasingly employed other areas of constitutional law.

The Justices claim that HAT constrains judicial discretion because it ties the Court’s decisions to original meaning and to text, history, and tradition, as means-ends review does not. Our close reading of Second Amendment cases demonstrates otherwise.

In The Ambitions of History and Tradition in and Beyond the Second Amendment (forthcoming in 174 U. Pa. L. Rev.), we show that HAT provides judges discretion to engage in values-based decision making that is less visible, and so less subject to democratic oversight, than the means-end scrutiny it replaces. We identify passages in Second Amendment opinions revealing that the conservative Justices are well aware of these properties of their method and are debating whether and how to cabin that discretion, even as they push to expand the method into other areas of law.

The Justices’ interest in preserving discretion is remarkable given the arguments critics advanced to justify repudiating means-end review and substituting HAT in the decade between Heller and Bruen. We focus in particular on arguments of then-Judge Kavanaugh and Prof. Joel Alicea (whose recent defense of Bruen will appear in the same volume as ours). These critics argued that means-end scrutiny is not grounded in the original understanding and enables shifts in levels of generality that give judges discretion to enforce their own value-based understandings.

But our close reading of Second Amendment cases shows that HAT exhibits the very problems that its supporters imputed to means-end review: HAT has no clear grounding in originalism, and licenses judicial discretion by shifting levels of generality and other framing devices. Troublingly, HAT does this while proclaiming objectivity and constraint. We show this dynamic unfolding outside the Second Amendment context as well, as HAT has spread into First Amendment and Due Process cases.

Why are so many of the conservative Justices uneasy taking responsibility for the exercise of role-based judgment? Perhaps after developing originalist theory to criticize decisions of the Warren and Burger Courts, the Justices who identify as originalists have not yet learned how to reconcile their theories of judicial review with the responsibilities of the judicial role. Or, perhaps, as the Court’s ambivalent performance in Rahimi suggests, only some of the Justices have.

Whatever the roots of this unease, its effects are plain. The Justices have produced a body of history-and-traditions law that encourages them to hide value-based reasoning from the public and to ignore the concerns of living Americans, especially those with whom the Justices lack instinctive identification or empathy.

These deflections have structural consequences. The strategy the conservative Justices employ to present the vindication of judicial values as deference to the past itself inflicts unique harms on democracy. By instructing judges to assemble evidence of a tradition to which they will defer, HAT review directs judges away from the reasons that living Americans have advocated legislation or asserted rights. And HAT review provides judges resources to mask their reasons for declaring laws or rights unconstitutional. In this way, we argue, the HAT framework makes judicial review less responsive and less transparent, without resolving the problems that purportedly motivated its adoption.

The harms to democracy that HAT inflicts take many forms. Two are especially prevalent. First, judges can apply the HAT framework to strike down gun regulation without seeming to engage in any value judgments or balancing. As we observed before Rahimi, and demonstrate more systematically in our forthcoming paper, judges can interpret the Second Amendment at a high level of generality to cover new forms of weaponry while interpreting the government’s authority to regulate weapons at a low level of generality, insisting that modern gun laws resemble those of the distant past. Nothing in originalism demands or legitimates defining the right and regulation at disparate and asymmetric levels of generality. Second, HAT systematically directs attention away from the public concerns that animate demand for firearm regulation and onto questions having to do with firearm laws at the founding or methodologically problematic efforts to count guns today.

These problems were on full display in Justice Thomas’ dissent from denial of cert in the assault weapons case, where he objected “AR–15s are clearly ‘Arms’ under the Second Amendment’s plain text,” and “[b]ecause AR–15s are ‘Arms,’” the burden shifts to Maryland to show that banning AR–15s is “consistent with this Nation’s historical tradition of firearm regulation.” Thomas wrote that he was “not aware of any ‘historical regulation’ that could serve as ‘a proper analogue’ to Maryland’s ban.” The shift in levels of generality makes the Second Amendment into an engine of judicial deregulation—a form of review that appears to be at odds with original understanding.

Thomas goes on to adopt a distinctly presentist approach to the scope of the Second Amendment, suggesting that the popularity of AR-15s renders them immune to prohibition: “Our Constitution allows the American people—not the government—to decide which weapons are useful for self-defense.” By drawing a distinction between “the American people” and “the government” and equating the former with AR-15 owners, this approach explicitly transfers democratic legitimacy from the elected representatives of Maryland to the minority of Americans who own AR-15s.

This version of Bruen is not consistent with original understanding or tradition. Nor is it constrained or “right.”

Joseph Blocher is Lanty L. Smith ’67 Distinguished Professor of Law at Duke Law School. You can reach him by e-mail at blocher@law.duke.edu.

Reva Siegel is Nicholas deB. Katzenbach Professor at Yale Law School. You can reach her by e-mail at reva.siegel@yale.edu.