If We’re Going to Rely on History to Interpret the Constitution, We Need Historians

  • Date:
  • July 24, 2023

The Supreme Court is turning to history more than ever in deciding cases, and nowhere is this more apparent than with the Second Amendment.  In 2022, in New York State Rifle & Pistol Association, Inc. v. Bruen, a six-justice majority of the Supreme Court ushered in a new era of history-and-tradition-focused jurisprudence when it comes to Second Amendment rights.  No longer is policy data alone sufficient to sustain a regulation.  Laws must now be shown to comport with an American historical tradition of weapon regulation in some way.

Lower courts are struggling to apply this new method.  One judge, conscious of the judiciary’s lack of training in historical analysis, suggested that he may need to appoint a historian as an expert to advise him on the historical support for felon-in-possession laws.  Historians are currently in high demand and being asked to serve as experts in a host of post-Bruen litigation. 

In other contexts, judicial recourse to the opinions of experts would be unremarkable.  We would not expect a judge overseeing a toxic spill litigation to rely on her own command of biochemistry; nor demand a judge adjudicating a train derailment to rely on his personal knowledge of mechanical engineering.

Reliance on historical experts would seem natural for adherents of originalism who believe, as Justice Scalia put it, that “texts and traditions are facts to study, not convictions to demonstrate about.” A methodological program built upon a premise of historical truth would presumably value the opinions of those trained to find it.     

Nevertheless, there are some who argue that reliance on historical expertise in Second Amendment cases is unnecessary, even illegitimate. These objections go beyond claims that there can occasionally be a charlatan among historians—much as there can be charlatans in other fields, like medicine or finance.  The assumption seems to be that the very notion of historical expertise is suspect, and that conclusions of historical fact rendered by judges and lawyers are just as reliable as those produced by professional historians.  That seems unlikely, even if one concedes that the task of the judge and the historian are distinguishable.  

Against that backdrop, we’ve invited three trained historians as guest bloggers to discuss matters related to gun policy of which they have particular historical expertise:

Dr. Laura F. Edwards is the Class of 1921 Bicentennial Professor in the History of American Law and Liberty at Princeton University and an expert in nineteenth century American law and culture.  She’s the author of The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (2009).

Dr. Kevin M. Sweeney is Professor of American Studies and History, emeritus, at Amherst College and an expert in possession and use of firearms in early America.  Among other writings, he’s the author of “Firearms, Militias, and the Second Amendment” in The Second Amendment on Trial: Critical Essays on District of Columbia v. Heller (2013).

Dr. Saul Cornell is the Paul and Diane Guenther Chair in American History at Fordham University and an expert on the early Republic.  He’s the author of A Well-Regulated Militia: the Founding Fathers and the Origins of Gun Control in America (2006).