Nikhil AgarwalIt’s been a good couple of weeks at the Supreme Court for gun-rights advocates. In United States v. Hemani, a unanimous Court held that the Federal government may not disarm habitual drug users, while in Wolford v. Lopez, the Court ruled 6-3 that a Hawaii law which required gun-owners to seek express authorization from property owners before carrying handguns on private property open to the public was similarly unconstitutional under the Second Amendment.
While gun owners will no doubt welcome these decisions, court-watchers, constitutional scholars, and lower-court judges seeking clarification on the Court’s “history and tradition” test for firearm regulations may be left feeling disappointed.
In many areas of constitutional law, Courts have employed means-ends balancing tests to laws that burden constitutionally recognized rights, weighing the policy goals of legislatures against the asserted liberty interest at stake.
For example, laws that infringe upon certain fundamental rights or rely upon suspect classifications are often subjected to “strict scrutiny,” an exacting standard of review that requires governments to show that such laws further a “compelling” interest and burden the right no more than is necessary.
Originalists have long criticized these tests as applied to enumerated constitutional rights, arguing that they lack any foundation in the Constitution’s text and structure and empower judges to make value-laden and normative policy judgements that undermine these rights.
Sensing an opportunity to course-correct in a theretofore scarcely litigated area of constitutional law, the Court in the landmark Second Amendment case DC v. Heller (2008) chose not to subject firearm laws to either strict scrutiny or any other type of means-ends test. In Bruen v. New York State Rifle & Pistol Association (2022), the Court instead introduced its “history and tradition” test, which requires a showing that a law burdening the right to bear arms is consistent with the nation’s historical tradition of firearm regulation. According to the Court, the Second Amendment’s text fixed its meaning, while contemporaneous practice and firearm regulations illuminated how the founding era understood the scope of that right. The balance struck between individual liberty and the public good, reflected in Constitutional text and historical practice, must be respected by modern-day judges, rather than upset by judicially invented balancing tests.
Perhaps the history and tradition test is more faithful to the Constitution. But four years on from Bruen, jurists from across the legal spectrum have highlighted issues with the test that call into question its workability. Dissenting in Bruen, Justice Stephen Breyer asked a slew of questions regarding the test, many of which remain largely unanswered. Among them, which historical regulations and laws qualify as analogues to modern laws? How many laws suffice to constitute a “tradition” of regulation? And how do we ensure that judges don’t selectively cherry-pick the historical record to reach their preferred conclusion?
On the other side of the aisle, Justice Amy Coney Barrett questioned which era of history Judges ought to situate themselves when assessing challenges to state laws: 1791, when the Second Amendment was ratified, or 1868, when the 14th Amendment incorporating the Bill of Rights against the States was ratified?
Two years after Bruen, the Court in Rahimi sought to clarify the history and tradition test, requiring governments to show that a challenged regulation is merely “consistent with the principles that underpin the nation’s regulatory tradition,” rather than identify a “dead ringer” or “historical twin.” Under this approach, courts now consider the broader “how” and “why” behind challenged regulations, rather than matching up specific elements of modern and historical legislation. The upshot is that legislatures potentially enjoy more breathing room to explore policy solutions for contemporary gun-related issues.
By and large, however, the Court has declined to resolve many of the issues raised with the test, arguing that scholarly debates concerning, for example, the level of generality at which laws must be defined and the appropriate period for historical analysis were irrelevant for the purposes of Bruen and Rahimi.
Unfortunately, this term’s decisions in Hemani and Wolford yielded no further insights or clarifications. In Hemani, Justice Jackson, a vocal critic of Bruen, wrote separately as she did in Rahimi to highlight the chaos she believed the history and tradition test had created in the lower courts, and suggests that if the question ever arises, the Court should consider retiring the test and returning to means-ends scrutiny. Her remarks, however, went unaddressed by Justice Gorsuch’s majority opinion, which focused squarely on applying the test to the case at hand.
Justice Alito similarly applied Bruen to Hawaii’s law in Wolford, and while Justice Jackson’s dissent engaged in its own historical analysis to reach the opposite conclusion, it sought primarily to frame the conflict as outside the scope of the Second Amendment. She argued instead that Hawaii’s prohibition merely “applie(d) a principle of property law-the right to exclude” and that the Second Amendment, as a protection against government interference, was silent on how private property owners may communicate a decision to exclude or invite armed carry.
Courts routinely decide no more than is necessary, but as lower-court judges across the country continue to grapple with thorny Second Amendment-related cases, further clarification on the application of the history and tradition test is essential.
Since Heller, the Supreme Court has identified the core protection of the Second Amendment right and clarified the settings in which individuals may bear arms. Before too long, however, the Court will be asked to clarify which weapons are protected by the Second Amendment. The status of the AR-15, among the most popular and divisive class of firearms in the country, remains uncertain, and several Justices have signaled their eagerness to settle the question. On an issue so contentious, the Court must be ready to answer that question with a history and tradition test that is robust and defensible. Failure to do so could spell disaster for its legitimacy in the eyes of the public.
Nikhil Agarwal is an incoming J.D. student at Columbia Law School.
Views expressed by guest contributors to Issues & Insights are their own and don’t necessarily reflect the views of the I&I Editorial Board.
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