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The Perils of Independent Judicial Analysis of Historical Sources

By on January 17, 2023 Categories: , ,

The Bruen majority writes that “[t]he job of judges is not to resolve historical questions in the abstract” (emphasis added).  Rather, the legal inquiry is distinct from traditional historical study in that it demands answers even when history may not speak clearly and relies on adversarial presentation to resolve difficult historical questions.  In other words, judges should generally “decide a case based on the historical record compiled by the parties,” rather than attempt to resolve historical questions by themselves “in the abstract.”

While the majority’s explanation of this principle has some logical force, one practical problem with the approach is that few—if any—judges want to write an opinion which admits that the result may be inconsistent with history but places the blame on the parties.  A lower-court judge who writes such an opinion would be complying with Bruen, but likely also risks appearing unmotivated (by not searching themselves for historical sources) and potentially being overruled and criticized on appeal.  Thus, it is not surprising that judges applying Bruen have largely gone out of their way to explain that they have independently investigated historical sources. 

However, it may be worth considering whether Bruen’s recommendation that judges rely on adversarial presentation was more than a casual aside.  One of the primary dangers of a legal test that focuses heavily on historical sources is the possibility that judges—who we all agree are not, for the most part, trained historians—will fail to treat the historical record with the appropriate level of care and suspicion.  There are many reasons to be concerned that those without specialized expertise will draw the wrong conclusions from their own examination of historical sources.  For example, the temptation to treat history as finite, knowable, and capable of producing a definitive answer to any question is very strong to the untrained eye.  If it’s possible to immediately determine present-day statistics with the click of a mouse, why should historical statistics be any different? 

As I’ve previously written, Judge Suddaby conducted independent analysis of historical laws in the Antonyuk case and peppered his opinions with his own observations about the relevant history.  In his decision in United States v. Quiroz striking down the federal ban on receipt of a firearm while under felony indictment, Judge David Counts considered “other historical analogies that neither the Government nor Defense explore.”  Now, Judge Roger Benitez of the Southern District of California—who is presiding over several ongoing Second Amendment cases, including a challenge to the fee-shifting provision of California’s S.B. 1327 and a challenge to California’s large-capacity magazine ban—has taken a similar course.  At a December 12 status conference, Judge Benitez rebuffed the state’s request for additional time for expert discovery in several Second Amendment cases and remarked that:

I mean, the history and tradition is what it is. I don’t need, you know, [an expert historian] to tell me what his view of the history and tradition is. I see no point in that; nor do I think any additional discovery is necessary or additional expert work is necessary.

Judge Benitez went on to explain that he had conducted his own statistical analysis of U.S. civilian repeating-rifle ownership in the 1800s, by consulting the Winchester company website and anecdotal evidence, and concluded that “there was an awful lot of those weapons that wound up in civilian hands.” 

There are at least two major problems with these observations.  First, they speak to the way that non-historians commonly view the historical record: as something that is factual and susceptible only to one reasonable interpretation.  In Judge Benitez’s view, history is simple, knowable, and factually verifiable. But history does not come to us predetermined and pre-packaged as a set of knowable, objective facts.  Many historical events can be verified, to a high degree of certainty, by consulting contemporaneous sources.  But all history is created, and shaped, by those who initially chronicle it through their own perspective.  As Hayden White has queried:

[D]oes the world, even the social world, ever really come to us as already narrativized, already “speaking itself” from beyond the horizon of our capacity to make scientific sense of it? Or is the fiction of such a world, a world capable of speaking itself and of displaying itself as a form of a story, necessary for the establishment of that moral authority without which the notion of a specifically social reality would be unthinkable?

Noel Carroll, summarizing White’s work, explains that “historical writing cannot afford a perfect simulacrum of the past. It involves selection and filling in; so it is actually a deviation from an exact copy or representation of the succession of events.”  Even those, like Carroll, who believe that historians can uncover objective facts, also accept that history is fundamentally narrative and that “narratives are a form of representation, and, in that sense, they are invented.” 

The history of civilian gun ownership that is chronicled and shaped into a narrative by the Winchester Repeating Arms Company will be vastly different from the history of civilian gun ownership as chronicled and shaped by modern state governments seeking to regulate firearms.  Contrary to Judge Benitez’s suggestion, there’s no reason to think it is easy (or even possible, in some cases) to determine that one of those narratives is objectively correct and one is objectively wrong.  Rather, they are simply different narratives, or different fictions.  The reality may be far from either narrative and may ultimately be unknowable, depending on who else may have attempted to chronicle the specific question at that time in U.S. history. 

Moreover, the fact that someone has studied the history of firearms for a long time does not mean that person already knows all there is to know on the subject.  This perspective overlooks that a historian’s work is never “complete”—new narratives are always unearthed, and must be tested and weighed against the existing ones.

Second, treating history as capable of producing a single, determinative answer, on questions for which it almost certainly cannot, leads to undesirable consequences in the courtroom.  For one, this approach to history magnifies judicial discretion.  The judge who conducts independent historical analysis will, almost certainly, adopt his or her own preferred historical narrative.  It’s hard to see how that approach is any less constraining of judicial discretion than the means-ends scrutiny Bruen rejected as “judge-empowering.”  Perhaps even more importantly, these judicial statements and methods are inconsistent with Bruen itself.  The Supreme Court seems reticent of judges resolving historical controversies in the abstract (and the Court almost certainly does not want a federal judge conducting his own statistical analysis of historical gun ownership using Winchester’s data).  That’s not what Bruen contemplates; in fact, the decision counsels against independent judicial analysis, exhorts judges to rely on party presentation to resolve historical questions, and warns that judges should not “make difficult [] judgments” when they “lack expertise” in a certain area.

Judges should—at the least—consider opposing expert testimony, provide a full and fair opportunity for such testimony to be stress-tested through the adversarial process, and rely upon such testimony rather than their own examination of preferred historical sources.

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