The debate over how the Supreme Court interprets the Second Amendment, with the assumptions around the “history and tradition” test, is under scrutiny. Many legal professionals assume that the Court employs this test in adjudicating Second Amendment cases, but some argue that this label is potentially misleading. For instance, in a detailed analysis, Haley Proctor, in a recurring series on the Second Amendment for SCOTUSblog, discusses why the label of “text, history, and tradition” may not accurately describe the Court’s approach.
According to some scholars, the traditional approach analyzes two distinct parts of the past: the constitutional meaning at the time of its ratification and the political practices that followed. This dual approach can morph constitutional interpretation, allowing later practices to overshadow original intents. For instance, the aftermath of the Blaine Amendment, rejected in the 1870s, illustrates how late 19th-century practices diverged significantly from constitutional principles, reflecting societal prejudices rather than original intents.
This has significant implications for the Second Amendment, with firearm regulations post-dating the Civil War era, reflecting biases such as those against former slaves. As an analysis by Sherif Girgis outlines, the “history” refers to evidence of constitutional meaning at ratification, whereas “tradition” leans into political practices thereafter. However, the “text and history” approach, as promoted in New York State Rifle & Pistol Association v. Bruen, emphasizes a return to historic textual analysis over traditional interpolations.
In the Bruen decision, the Court held New York’s concealed carry law unconstitutional, arguing that when the plain text of the Second Amendment covers an individual’s conduct, it warrants protection. The government must show justification through regulations consistent with historical firearm rules. This reflects a jurisprudential method that relies on the clear wording of the Amendment at its conception.
While some justices, like Brett Kavanaugh, maintain that historical traditions might sometimes inform constitutional interpretation, the Bruen majority did not align with this methodology. Evidence inconsistent with original constitutional meanings, even if historically accepted post-ratification, is rejected, marking a clear preference for historical text over evolving traditions.
In conclusion, Proctor and others argue for a clearer alignment of judicial approaches with original texts rather than evolving traditions that may compromise constitutional safeguards established through democratic processes. This discussion highlights the importance of interpreting written amendments as the ultimate democratic expression that should not be reshaped by later traditions.