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Text, History, and Tradition: A Workable Test that Stays True to the Constitution

By on May 4, 2022 Categories: , , ,

Last week Professor Charles highlighted the burgeoning legal controversies involving “ghost guns” (homemade firearms that have no serial numbers) to illustrate what he perceives to be problems with a judicial test based on text, history, and tradition (THT). As an advocate of the THT Test, I offered a response, which Professor Charles graciously accepted. I thank him for presenting my opposing view.

Although imperfect, the THT Test is the best test available. The THT Test focuses on the Second Amendment’s text, using history and tradition to inform its original meaning. The alternative is the Two-Part Test, which has most commonly been adopted by lower courts. The first part of the Two-Part Test considers whether the challenged law burdens the Second Amendment, and if it does, tiered scrutiny is then applied in the second part.

The THT Test is more faithful to the Constitution because it focuses on the actual words of the Second Amendment. It then uses history and tradition to confirm the interpretation of those words, by determining how the right was understood when the Amendment was ratified. As Chief Justice Marshall explained, “the enlightened patriots who framed our constitution, and the people who adopted it, must be understood . . . to have intended what they have said.” The THT Test centers on what the Second Amendment says and how it was understood.

The importance of the Second Amendment’s text in interpreting the right it protects may seem self-evident, but under the Two-Part Test the text is often ignored. Courts typically assume without deciding that the challenged law burdens the Second Amendment in part one and skip ahead to part two. There, the analysis boils down to whether the challenged law is reasonably related to the government’s interest in reducing gun violence—as the Ninth Circuit put it, “[t]he legislature must have drawn ‘reasonable’ conclusions, and the evidence must ‘fairly support’ the legislative judgment.” What the Constitution says and what the Founders intended to protect take a backseat to whether the court believes the legislature acted reasonably.

The difference between the tests is clearly illustrated by the issue of whether ordinary Americans have a right to bear arms. The THT Test answers this with remarkable simplicity: the Second Amendment’s text provides that “the people” have the “right” to “bear arms,” so anyone among “the people” must be able to “bear arms.” Reassurance that the text means what it says can be found in history and tradition, including the common tradition of carrying arms and the lack of restrictions on the activity throughout the founding era. Applying the Two-Part Test, however, several courts have decided that only individuals who face an imminent threat—if the government deems the threat credible—may bear arms. If the Two-Part Test can mutate the explicit “right of the people to . . . bear arms” into a privilege of a select few, it can easily eliminate aspects of the right not expressly included in the text.     

Admittedly, few issues are as straightforward as whether “the right of the people to keep and bear arms” protects the right of the people to bear arms. And it is those issues supported by fewer historical analogues and evidence, according to Professor Charles, that make the THT Test unworkable. He is not alone. As he notes, Antonin Scalia Law School professor Nelson Lund expressed skepticism about the THT Test in a 2020 law review article. Professor Lund acknowledged that “text and history are sufficient” to invalidate laws that “forbid almost everyone to carry a loaded weapon in public,” but he contended that history and tradition provide no clear answer to felon disarmament statutes, thus revealing the test’s impracticality. Instead, he suggested, in most cases—including felon disarmament cases—courts should apply tiered scrutiny, as in the Two-Part Test.

This turned out to be a miscalculation. A wealth of historical research (including my article, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms) has revealed that the Second Amendment’s original scope allows only dangerous persons to be disarmed. Meanwhile, application of the Two-Part Test has allowed the permanent disarmament of countless peaceable Americans, in violation of their constitutional rights.

The prohibited persons experience also alleviates a concern raised by Professors Joseph Blocher, Darrell Miller, and Eric Ruben in their Bruen brief, which Professor Charles also cites. The professors argued that “for many regulations, there will be no history or tradition on which to draw for answers,” thereby “forc[ing] lower courts into covert, unguided, ad hoc balancing, disguised as analogy.” This echoes Professor Lund’s concern about prohibited persons, where before long historical research provided the solution. If the Supreme Court reaffirms that THT is the proper test in Bruen, the result will be an increased emphasis on historical research, which will inevitably produce historical evidence that now appears to be lacking. Indeed, the Duke Center for Firearms Law’s outstanding Repository of Historical Gun Laws is an example of the exceptional research a THT approach will inspire.

For an example of a problematic issue, the professors pointed to 3D-printed guns: “it is hard to see how a court could use history to assess the constitutionality of laws regulating technology that did not exist for most of the history of Anglo-American law.” This demonstrates, they claimed, “how demanding that courts travel back in time to decide all Second Amendment cases will often send them to a dead end.” As with the prohibited persons issue, only a short time passed before a thorough historical exploration of the right to build personal arms was published—my forthcoming article, The American Tradition of Self-Made Arms. The article notes the centuries-long tradition of Americans manufacturing their own arms, that American success in the Revolutionary War depended on the domestic manufacture of arms, and that self-manufacturing arms has been unregulated until very recently.

Now that self-made arms are a hot-button issue, further investigation by more able scholars will undoubtedly uncover additional history. Nevertheless, there is already sufficient evidence to conduct a THT analysis. Here is an abbreviated version: the Second Amendment’s text protects the right to keep arms. One must be able to acquire something to keep it, and the most fundamental way to acquire something is to produce it oneself—indeed, it would be strange to mandate that people purchase from others something that they have a right to own and can produce themselves. Therefore, the text seemingly protects the building of personal arms. History and tradition support this interpretation: building arms for personal use was common throughout American history and never regulated. Further, Americans depended on domestic manufacture during the Revolutionary War, and it is unlikely that immediately thereafter they granted the government the power to severely restrict domestic manufacture. As for the government requiring that homemade firearms be marked for identification, it evokes the Founders’ experience throughout the 1770s, when identifying marks were intentionally omitted from guns so that the tyrannical British—who had already prohibited the import of firearms and gunpowder and confiscated Americans’ stores of arms—could not find and retaliate against domestic gunmakers. The Founders recognized the dangers of government being able to trace every single arm—even those that never exchange hands.

Professor Charles contends that the THT approach is flawed because it “transform[s] nonregulation into a right.” He criticizes the assumption that “the existence of some unregulated practice in the past is not ambiguous evidence about the status of government power, but a sign that the practice was protected as a right.” Yet it is evidence of a right—not conclusive evidence, but evidence to be considered along with other factors. After all, if there is a right to do something, it will presumably be subjected to fewer regulations. Take two countries. In Country A, everyone is free to own a gun. In Country B, it is illegal to own a gun. In which country is it more likely that the right to own a gun exists?

Professor Charles mistakenly asserts that “THT and arguments like those about self-made guns imply that government always regulates to the outer limits of its power.” To the contrary, THT analyzes centuries of history to see how many governments (local, state, or federal) ever extended their power during that time to the extent the government currently being challenged has.

He concludes that “[i]f historical argument is going to take a prominent place in Second Amendment analysis, it ought to be based on evidence of widespread understanding that a past practice was protected as a right, not simply that it existed without regulation.” Placing the burden on the people to prove the existence of their constitutional rights fails to appreciate the nature of the United States government. As James Wilson famously declared while discussing a bill of rights during the constitutional debates, “the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that . . . every thing which is not given, is reserved.” Presumptions favor liberty, not governmental authority.

Moreover, there are over 300,000 federal crimes—so many, in fact, that the Department of Justice is unable to count them. The number of state and local laws throughout American history are countless as well. It is reasonable to infer that there must be a reason why none of these hundreds of thousands of laws has touched upon a common practice—especially when the activity is associated with a constitutional right.