More on Text, History, and Tradition and NYSRPA

Much of the oral argument in NYSRPA v. New York City dealt with mootness: whether there was even a case or controversy before the court, as required by Article III of the United States Constitution.   But someday, whether in NYSRPA or some other case, the Court will have to address the question of which method to use to analyze the Second Amendment.  The two main contenders are the two-part framework, adopted by most of the lower courts; and text, history, and tradition, endorsed by a minority of judges, including now-Justice Brett Kavanaugh.

Often these two approaches are treated as opposites, but they are not.   The first step of the two-part framework uses text, history, and tradition to assess whether some activity actually raises a Second Amendment concern. Carrying “dangerous and unusual weapons” does not, according to District of Columbia v. Heller; carrying firearms in public might, according to most lower-court decisions.  The second step of the two part framework asks whether there are valid government interests advanced by credible evidence or legitimate predictions of efficacy to uphold the regulation and investigates the effect of those regulations on the function of the right.   The two-step framework does not reject text, history, and tradition; it incorporates it at step one (and perhaps at step two as well).

The other option is something like a text, history, and tradition-only approach, where there’s no opportunity to define the government interests at stake, no chance to argue about the actual or predicted efficacy of the regulation, or no opportunity to discuss whether the right is preserved in its fundamental elements with those regulations.   At its most restrictive, a text, history, and tradition-only approach would lead to the conclusion that only those regulations that existed in 1791 are valid, and that any regulation that has arisen since the Founding Era is unconstitutional.

But almost no judge, including Justice Kavanaugh, endorses that stringent a use of history.  Instead the typical approach is to argue from analogy to text, history, and tradition to evaluate the constitutionality of modern regulations.  That effort, though, brings with it some problems.   As my colleague Joseph Blocher has discussed, it can be incredibly judge-empowering; it disguises substantive judgments with a veneer of “relevant similarity”; it requires difficult calibration of the level of generality.

I want to focus on one additional issue.  What happens when (as Kathleen Sullivan once said) the analogies run out?  Take the prohibition on loaded private firearms in the cabin of a commercial airliner.   At its strictest, a text, history, and tradition approach would say because there’s no regulation on firearms in jet airliners in 1791, no regulation on firearms in jet airliners can be constitutional today.   But that is a bizarre way of doing constitutional law.  We don’t ask that kind of question for whether a certain type of modern weapon (like a stun-gun) is an “Arm” under the Second Amendment.   Why must we reason this way to decide whether a regulation is constitutional?

Once we’re dealing with jet planes, the analogies cease to be helpful and become abstruse and alienating.  The law presently prohibits loaded firearms in commercial jets.   What kind of vehicle in 1791 is most like a jet plane?  A horse?  A horse-drawn carriage?  A sailboat?   Justice Samuel Alito in his Fourth Amendment jurisprudence appears skeptical that this is a fruitful line of inquiry.  What’s more, this kind of exercise makes constitutional reasoning seem like a parlor game, played by an elite legal cognoscenti, completely divorced from everyday experience.

This doesn’t mean that text, history, and tradition can’t answer some questions.   A home in 1791 has many of the same features as a home today.  And, to the extent the Framing generation made judgments in 1791 about firearms in homes; homes should be just as important to our construction of the amendment today.

But what the second step of the framework does is provide judges some guidance when the analogies become too thin – or too fantastic – to do any real work.   And, more importantly, the framework does so in a way that is intelligible to the people who must abide by those judge’s decisions.