A Second Opinion is a recurring series by Haley Proctor on the Second Amendment and constitutional litigation.

It is widely believed that the Supreme Court adjudicates Second Amendment claims using a “history and tradition” test. The label (sometimes referred to as “text, history, and tradition”) has the potential to mislead, with bad consequences for Second Amendment litigation and beyond. This month’s column explains why I believe the label is inapt, and why “text and history” is a better label for the court’s approach to the Second Amendment – and constitutional interpretation more broadly.

To illustrate the stakes, let us begin with a First Amendment example, drawn from Stephanie Barclay’s essay Replacing Smith. In the 1870s, Congress narrowly rejected a constitutional amendment now commonly known as the Blaine Amendment, after Maine Congressman James G. Blaine. That amendment would have elaborated on the establishment clause by barring the use of public education funds to support “religious sects or denominations.” As the Supreme Court explained in Mitchell v. Helms, “[c]onsideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic.’” Although the amendment failed, it reflected an attitude that (in Justice Felix Frankfurter’s words) “was firmly established in the consciousness of the nation.” Indeed, a large majority of states enacted their own versions of the Blaine Amendment; some were required to do so as a condition of being admitted to the Union. As demonstrated by a joint project of the Notre Dame Religious Liberty Clinic and the Orthodox Union, and a report by my colleague Nicole Garnett (with Tim Rosenberger and Theodore Austin), the effects of this spate of anti-Catholic activity endure to this day.

Does this “tradition,” which took shape nearly a century after “We the People” ratified the First Amendment, tell us something about what the government is and is not permitted to do “respecting an establishment of religion” or “the free exercise thereof”? The court has said no, and for good reason.

If popular practices long postdating the ratification of the Constitution can give shape to the rights that this founding document protects, many of those rights will take a form that would be unrecognizable to those who chose to codify them. This is especially true of the Second Amendment. Firearm regulations proliferated during the late 19th and 20th centuries – a trend that also began with animus against an unpopular group: former slaves. The “traditions” created by these more recent regulations suggest a circumscribed right to keep and bear arms. Many of these regulations were passed on a mistaken assumption that individuals had no right to keep and bear arms at all.

What role should such traditions play in Second Amendment litigation?

The anatomy of a “history and tradition” test

A “history and tradition” test has two elements: history and tradition. Both elements refer to the past, but if each word has a job to do – something we usually assume in the law – then they must refer to two different parts of the past.

My colleague Sherif Girgis has described these two ways of using the past: “History” refers to the evidence of what the Constitution meant at the time it was ratified. “Tradition” refers to political practices that post-date ratification.

History is the typical fare of originalist analysis and regularly features in courts’ decisions interpreting the Constitution. The Supreme Court has also developed doctrines that require courts to treat traditions as authoritative – not so much because they reveal something about the original meaning of the Constitution, but instead because they reflect the popular will of later generations. Perhaps the most prominent example is the doctrine of “substantive due process.” In the 1997 case of Washington v. Glucksberg, the court explained that “the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ … and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’” This test creates a role for popular traditions in recognition of the fact that by “extending constitutional protection to an asserted right or liberty interest” that is not explicitly written into the Constitution, the court “place[s] the matter outside the arena of public debate and legislative action.”

Is Bruen a “history and tradition” case?

Consider the anatomy of the test the court articulated for Second Amendment challenges in New York State Rifle & Pistol Association v. Bruen, in which the court held that New York’s concealed carry law violated the Second Amendment. Like a “history and tradition” test, it has two parts: “[1] When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. [2] The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

If we were working from scratch, and didn’t mind clunky labels, we might call this a “plain text and historical tradition” test. But we aren’t working from scratch, and we must ask whether “history and tradition” will do.

Certainly, “history” has a role to play at step one of Bruen in the sense that the “plain text” of the Second Amendment takes on the meaning those words would have had at the time of ratification – a necessary inquiry for any originalist. That means cracking open old dictionaries and other indicators of historical meaning. But as Joel Alicea has shown, “text” is a more apt description. The historical inquiry courts are performing at step one is not an open search for evidence about what the ratifiers understood the right to be. It is a search for the meaning of the text that they carefully selected to describe that right.

The million-dollar question is then whether the “historical tradition” at step two is about “history,” or “tradition.” In other words, does it limit courts to the sort of regulatory practices that tell us what the Second Amendment meant to the people who ratified it? Or does it instruct courts to consider the popular will of later generations?

In searching for answers to this question, it is important to distinguish between answers given by individual justices and those given by the court.

Justice Brett Kavanaugh, for example, has left the door open to using the traditions of later generations to fill gaps in our understanding of the Constitution’s original meaning. In his opinion in United States v. Rahimi, he explained that “post-ratification history—sometimes referred to as tradition—can … be important for interpreting vague constitutional text and determining exceptions to individual constitutional rights.” According to Kavanaugh, the primary function of the past is to help judges “discern the meaning of the constitutional text.” But in taking this position, he endorses a “very broad view” that may result in later generations supplying constitutional rules to a certain extent, through their political traditions. He even invokes Glucksberg.

The Bruen court does not endorse using historical traditions in this way, however. To the contrary, the majority analyzes the category of “post-ratification history” through the lens of asking what it reveals about the original meaning of the Constitution. And there, citations to Glucksberg are conspicuously absent.

Critically, the majority rejects evidence of “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text.” One might answer that later political traditions may supplement the original meaning without contradicting it. But given the “unqualified” nature of the text, any regulatory practice will be “inconsistent” with that meaning, unless it is continuous with regulatory practices that existed at the time of ratification. Thus, the only “historical traditions of firearm regulation” Bruen has blessed are those practices that are part of the “history” that supplies the original meaning to begin with.

(For more detailed analyses of Bruen’s second step, concluding that it looks to “history,” not “tradition,” see Alicea’s piece, linked above, and this article by Randy Barnett and Larry Solum. For a dissenting view, see the Girgis and Barclay articles linked above, as well as Marc DeGirolami’s Traditionalism Rising.)

Bruen purports to develop a “methodology centered on constitutional text and history.” And that, I believe, is precisely what it did.

Why not “tradition”

Democracy is a good thing. Or maybe it is “the worst form of Government except for all those other forms that have been tried.” Regardless, it is the best way of governing that we have going. Glucksberg used tradition to temper the court’s substantive due process jurisprudence with democratic input – to give the people some ongoing say in what matters are placed “outside the arena” of ordinary politics. Why not do the same in Second Amendment litigation?

There is an important difference between the rights protected by the substantive due process doctrine, and the rights protected by the First and Second Amendments: the latter are written down. No democratic tempering is needed because they are the product of a democratic process. A supermajority has already decided that they deserve protection.

Later generations may decide that they mistrust particular groups more than they value their rights. Or later generations may forget the value of their rights altogether. But that is kind of the point: We the People chose to codify those rights, at least in part, to prevent their being overrun by political zeal or overgrown in neglect. Allowing traditions to reshape the rights revealed by text and history undermines that objective.

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