In 1720, writer and self-designated medical expert Joseph Browne published his A Practical Treatise of the Plague, in which he extolled the benefits of the “firing of Guns, especially Cannon” to “purify” an atmosphere laden with pestilence. In recommending this approach, Browne had significant company. It appears that igniting gunpowder had been the folk medicine of soldiers, sailors, and city-dwellers for decades, if not centuries. Stephen Bradwell, a seventeenth century English physician, in addition to dispensing sound public health advice like keeping the streets clean, and avoiding throngs, recommended launching fireworks and firing guns in the public streets so that the gunpowder would “dry” the air. Daniel Defoe, in his Journal of the Plague Year (1722) also writes of the common practice of sanitizing dwellings by burning gunpowder. (Defoe includes the story of one poor man who used so much that he destroyed his house.)
For the Founding Fathers (for whom the germ theory of disease was by no means universally accepted), the idea of shooting cannon and firing guns to cleanse the air of “miasma” may have seemed reasonable – no matter how risible it is today. The technique’s widespread acceptance as good practice in the 1700s may not be a problem for medicine, but it does present a problem for law.
Originalism, in particular its focus on text, history, and tradition to construe constitutional rights, is the theory that constitutional rights are understood to have the content and contours of the era in which the relevant constitutional provision is enacted. For the Second Amendment, lower courts routinely look to practices, customs, and traditions that existed in 1791, the time the States ratified the Amendment. Some judges, including Justice Kavanaugh, say that text, history, and tradition is the only legitimate form of analysis. These jurists suggest that any regulation or custom must be evaluated by reference to modern analogues to past practices to see if they square with the Constitution.
For many questions, this may not be an insuperable problem. There are plenty of traditions that have justifications just as applicable today as they were in 1791. One may need to take a gun to a smith or to a range today for much the same reasons as one did over a century ago; and the wisdom of prohibiting guns “into any circus, show or public exhibition of any kind” applies just as well, for exactly the same reasons of public safety and order, to prohibitions on guns at public entertainments today.
But what of those traditions, practices, and customs whose principal justifications has not kept up with time – or worse, now seem utterly ridiculous? Can it be that one looks at just the superficial phenomenon of any given tradition or custom, without any inquiry into its underlying purpose? Elsewhere I have written that if the Court decides to construct a unique text, history, and tradition approach to Second Amendment doctrine, it will have to contend with superannuated customs that have fallen into desuetude.
My question in this short post is different: what does a jurisprudence of text, history, and tradition do with practices, customs, or laws, that may have contemporary justification, but whose antecedents rely on what we now understand to be patently nonsensical or offensive rationales?