Nelson Lund has posted a new paper to SSRN, History and Tradition in Second Amendment Jurisprudence, forthcoming in the University of Florida Journal of Law & Public Policy. Lund’s paper is fascinating and provocative. He argues that the approach advocated by then-Judge Kavanaugh—that focuses on text, history, and tradition in lieu of traditional methods of means-end scrutiny—is misguided. Justice Kavanaugh, Lund contends “misinterpreted Heller” and thus adopted an approach “he mistakenly imputed to Heller.”
Lund starts first with Heller itself. The much-vaunted “common use” test, in which Heller looked to the current popularity of handguns, belies the notion that text, history, and tradition alone guided the decision. And, according to Lund, “Heller’s failure to rely exclusively on text, history, and tradition comes even more sharply into focus when we examine the dicta in which the Court approved several modern forms of gun control.” The (in)famous “exceptions paragraph,” in which the Heller Court appeared to bless a wide swath of current gun laws, lacks any explicit textual, historical, or traditional justification. Neither, says Lund, does its permission to ban concealed carry or its tethering of constitutional protection to a weapon’s widespread use by civilians. “In order to swallow this [latter] argument, one has to believe that the Second Amendment serves a military purpose by protecting weapons that have little or no military utility while leaving unprotected the standard infantry rifles used by modern military organizations.” In short, Heller did not employ a thoroughgoing text, history, and tradition approach.
Lund, however, argues that text, history, and tradition can resolve some controversies. But they cannot solve nearly all of them. For example, he thinks they show that any complete ban on public carrying would be unconstitutional, as would “may issue” regimes that issue carry permits only to those who show good cause to need a weapon. But text, history, and tradition fail to issue a univocal answer to many other questions, like state firearm licensing requirements. “In deciding which restrictions are constitutionally permissible, courts will get little or no useful assistance from history.” Such is also the case, Lund says, for felon-dispossession laws, on which the history and tradition are inconclusive.
Pointing to Judges Diane Sykes and Amy Coney Barrett (about whose approach I’ve written a bit), Lund argues that means-end scrutiny is preferable to the approach of Justice Kavanaugh or Judge Hardiman that purport to find easy answers in history or tradition. “[R]ather than read more into the sources than they contain, as I believe Judge Hardiman did, Sykes and Barrett performed means-end analyses that conscientiously sought to respect what Scalia called the ‘interest-balancing by the people’ that is reflected in the Second Amendment.” Lund remarks that Justice Kavanaugh’s rejection of means-end scrutiny misread Heller, which nowhere rejects that approach, and would substitute in its place a barely less manipulable test. Contra Kavanaugh, “[t]he Court did not so much as suggest either that all longstanding regulations are ipso facto valid or that all novel regulations are ipso facto invalid.”
At bottom, Lund’s argument is that means-end scrutiny respects the right and promotes fair and honest analysis of the history and evidence. He implores the Supreme Court to leave means-end scrutiny as a viable option if it reaches the merits in New York State Rifle & Pistol Association v. City of New York:
If [the Court] were to announce that means-end scrutiny is categorically foreclosed in Second Amendment cases, they would set the Court’s nascent Second Amendment jurisprudence on a path that will inevitably lead to a misuse of the historical sources. A Court that is only beginning to revive the now-controversial practice of taking the original meaning of the Constitution seriously should be especially careful to avoid such abuses.
In sum, although some foundational questions can be answered by reference to text, history, and tradition, many questions about the scope of the Second Amendment and the leeway government has to regulate in the public interest cannot. “Pretending to find the answers in history and tradition will encourage either covert judicial policymaking, which is just what reliance on history and tradition is supposed to prevent, or ill-supported historical stories in defense of results that could honestly and responsibly be justified through normal means-end scrutiny.”