I’ve written previously about the surprising agreement among courts of appeals interpreting and applying the Second Amendment. They all agree, for instance, that the standard two-part framework is the best way to analyze Second Amendment challenges. Under that framework, the first question is whether the challenged law burdens conduct protected by the Constitution; if it does, the second question is whether the law passes some form of heightened scrutiny. But there’s an alternative test that has been strongly urged by gun-rights advocates and some dissenting judges. That test looks solely to “text, history, and tradition” to assess compliance with the Second Amendment. This debate peaked through the mootness fog during this week’s NYSRPA arguments.
As I observed earlier this week, Justice Alito was the first justice to bring up the question of Second Amendment methodology in oral arguments. But before he even got there—indeed before a single justice asked any question—Paul Clement, the attorney for the challengers, led with this opening line: “Text, history, and tradition all make clear that New York City’s restrictive premises license and accompanying transport ban are unconstitutional.” Clement argued that the Supreme Court should “send a very important signal to the lower courts” by stating “that when a regulation like this is inconsistent with text and has no analogue in history or tradition, it is unconstitutional, full stop.” Under his view of the THT test, historical or traditional pedigree is both a necessary and sufficient condition for constitutionality. Pushing the THT test in place of the two-part framework has been a key effort of gun-rights advocates, as illustrated in amicus briefs by the NRA and other groups. Jeff Wall, arguing on behalf of the government in NYSRPA, also urged such a test.
These litigants are not the only ones in favor of the THT alternative. In Heller II, a challenge to D.C. laws banning assault weapons and requiring firearm registration, then-Judge Kavanaugh also argued forcefully for the THT test. In a 52-page dissent, Kavanaugh argued that Heller mandates that judges look only to text, history, and tradition to determine whether a regulation comports with the Second Amendment. He rejected the majority’s invocation of the normal means-end scrutiny as a type of forbidden “interest balancing.” Just like the version Clement argued for in NYSRPA, Justice Kavanaugh’s makes historical or traditional roots both a necessary and sufficient condition. In his words:
Heller was up-front about the role of text, history, and tradition in Second Amendment analysis – and about the absence of a role for judicial interest balancing or assessment of costs and benefits of gun regulations. Gun bans and gun regulations that are longstanding – or, put another way, sufficiently rooted in text, history, and tradition – are consistent with the Second Amendment individual right. Gun bans and gun regulations that are not longstanding or sufficiently rooted in text, history, and tradition are not consistent with the Second Amendment individual right.
Other judges have, also in dissenting opinions, echoed Justice Kavanaugh’s view. This version of THT requires a historical tradition before a court can uphold regulations. But what about new regulations that respond to modern concerns? For those, according to Justice Kavanaugh, we have to “reason by analogy,” though he concedes that “applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins.” As Chief Justice Roberts said during oral arguments in District of Columbia v. Heller in 2008, “we are talking about lineal descendants of the arms but presumably there are lineal descendants of the restrictions as well.” One concern for this view, when dealing with the difficulty of analogical reasoning across technical subjects, is deciding how certain one must be about the analogy before striking down democratically-enacted legislation.
But this is not the only way to conceptualize a test that looks to text, history, and tradition for guidance. The Center’s own Darrell Miller has argued that the Seventh Amendment’s historical framework can provide a useful guide for courts confronting Second Amendment challenges. In the Seventh Amendment context, Miller notes, the Supreme Court “has converged on a historical test that attempts to remain true to the text, history, and tradition of the Seventh Amendment, but is supple enough to address the demands of a twenty-first-century judicial system.” Unlike the tests proposed by dissenting judges and gun-rights advocates, the Court’s Seventh Amendment case law has already grappled with complex but inevitable questions like, “Whose history is preserved in the Seventh Amendment? How much history? And what does a court do with conflicting or indeterminate history?” Miller describes how the Court’s historical test for the Seventh Amendment performs similar functions to those used in scrutiny analysis:
First, history serves as a familiar boundary-setting device. It guides judicial discretion as to which cases fall within the scope of the Seventh Amendment and which cases do not. Second, history serves a tailoring function. It dictates the extent to which legislatures or courts may alter both the form and the function of the jury that the Seventh Amendment guarantees. Procedural innovations that preserve the fundamentals of the jury-trial right are constitutional; procedural innovations that destroy the fundamentals are not.
Miller notes that flexibility and not rigidity has been the hallmark of the historical test in the Seventh Amendment. In assessing whether the fundamentals are preserved, the Court looks to things like the purposes for which the Founders protected the jury right and the functional considerations of having a judge versus jury decide an issue.
Drawing on the Court’s rich experience with the Seventh Amendment, Miller proposes a possible historical test for the Second:
First, does the asserted right to “keep” or “bear” or to a particular “arm” have a clear or arguable historical analogue? If it does, then it can be said to implicate the Second Amendment. If it does not, there is no Second Amendment right. Assuming the right asserted has a clear or colorable historical analogue, the second part of the test asks whether the regulation “infringes” upon the right to keep and bear arms. Here, infringement means something similar to a failure to preserve in the Seventh Amendment context, i.e., a law that regulates keeping or bearing an arm so thoroughly as to destroy the fundamental nature of the right. Regulations that have precise common law or historical antecedents or analogues do not infringe upon the right; newer regulations grounded in precedent or functional considerations do not infringe upon the right so long as they retain the Second Amendment right in its essential features.
Notice that, in this version of the test, historical or traditional pedigree is a sufficient reason to uphold a regulation, but it is not a necessary one. New innovations can occur in areas affecting constitutional rights—like the right to a civil jury, or the right to keep and bear arms—and that novelty alone does not doom the regulations. Even where no analogue exists, states are free to experiment so long as the fundamental aspects of the right are preserved (i.e., not infringed). This is where Miller’s historical test and the one advocated by Clement and the gun-rights advocates splits apart.
If the Supreme Court does eventually adopt a test focused on text, history, and tradition, it ought to at least stay consistent with how it has employed that type of analysis for other constitutional rights. After all, as Justice Alito said in McDonald—and Justice Sotomayor echoed in the NYSRPA oral arguments—the Second Amendment should not be “subject to an entirely different body of rules than the other Bill of Rights guarantees.” But the gun-rights advocates’ version of the THT test would do just that. It would turn the Second Amendment, in Timothy Zick’s words, into “a kind of super-right, one defined in absolute terms and buttressed by the most rigid standards.”