Blocher and Siegel on The Ambitions of History and Tradition in and Beyond the Second Amendment

Joseph Blocher, Duke University School of Law, and Reva Siegel, Yale University School of Law, are publishing The Ambitions of History and Tradition In and Beyond the Second Amendment in volume 174 of the University of Pennsylvania Law Review. Here is the abstract.

This Article examines the ambitions of history-and-tradition review in and beyond the Second Amendment. In Bruen and Rahimi the Roberts Court rejected means-end review in favor of a historical-analogical approach, claiming to constrain the exercise of judicial discretion, and thus to promote the democratic decisions of the founders. But our examination of these cases shows that the Court has created new opportunities for judges to advance their values in considerably less transparent ways. We identify contexts in which Second Amendment doctrine enables judicial discretion, key among them that it allows judges to reason about gun rights and regulation at disparate levels of generality, extending rights protection to modern guns while requiring gun laws to resemble ancient analogues. When applied in this asymmetric fashion, the historical approach deregulates in ways that are neither acknowledged nor justified. An eight-member majority objected to this strategy in Rahimi and voted to uphold a federal gun law. Yet numerous Justices wrote separately to limit Rahimi’s reach—and, a year later, to suggest that the Court should take a case involving an assault-weapons ban to clarify the method set forth in its earlier cases. Our close reading of the history-and-tradition (HAT) cases shows that there is a persistent gap between what the Court says and does—between the judicial constraint the Roberts Court promises and the actual decisions it delivers. Understanding this dynamic in the Second Amendment cases helps us recognize it in the First Amendment and Substantive Due Process cases as well. We can better appreciate the Court’s reasoning in extending HAT review if we excavate the arguments advanced in the decade between Heller and Bruen for substituting the HAT approach for means-ends review. This retrospective shows us that HAT approaches exhibit the very problems imputed to means-ends review: HAT review is not grounded in original understanding and employs shifts in generality to provide judges discretion to enforce value-based understandings. We can see this dynamic unfolding inside and outside the Second Amendment context. HAT decisions pose distinctive threats to democracy. First, Bruen has implemented HAT through judicial review with a strong presumption of unconstitutionality, a counter-majoritarian practice lacking precedent at the founding. Second, HAT review is not transparent, obscuring reasons for judicial decisions from the people and thus obstructing democratic dialogue. Third, the HAT framework encourages judges to decide the constitutionality of public safety laws on grounds that ignore the public’s most urgent reasons for enacting the laws. This reading of the Court’s Second Amendment cases indicates that the push to adopt HAT approaches in First Amendment, Due Process, and other areas of constitutional law is likely to compound the problems it is supposed to solve, while insulating the Court’s control of the Constitution from the public governed by it.

Download the article from SSRN at the link.

Kopel on Machine Gun History and Bibliography

David B. Kopel, University of Wyoming, Firearms Research Center; Independence Institute; Cato Institute; Denver University Sturm College of Law, is publishing Machine Gun History and Bibliography in volume 25 of the Wyoming Law Review. Here is the abstract.

This Article provides an introductory history of machine guns and books about them. First, the Article describes federal machine gun laws and regulations, and related legal resources. Then the Article presents the historical development of machine guns from 1862 to the present, covering the various types of machine guns: heavy, medium, light, general purpose, submachine gun, machine pistol, and assault rifle. The first machinegun to achieve broad commercial success was the Gatling gun, invented during the American Civil War. Although the Gatling had little effect on that war, shortly thereafter the Gatling gun and other manual machine guns started to change warfare.Later, heavy machine guns such as the automatic Maxim gun, and its successor, the Vickers gun, dominated battlefields. Towards the end of World War I, the heavy machine gun was dethroned from its supremacy by the widespread adoption of new, portable light machine guns, which could be used to suppress an enemy machine gun nest while other troops advanced. In the subsequent two decades, especially during World War II, machine guns that were easily portable by a single soldier became much more common, such as the Thompson submachine gun widely used by American and British forces. During the Cold War, the assault rifle, no bigger than an ordinary rifle, became increasingly important. Most influential, almost always for ill, was the Soviet Union’s AK-47 and its progeny. The American counterpart, the M16, proved much less effective in battle, at first due to technical problems, and everlastingly because of its puny bullet. Improvements in metallurgy, manufacturing, and design have improved the quality of infantry machine guns. But a soldier with a machine gun on a battlefield in the third decade of the twenty-first century will likely be using a machinegun of a broad type that was already in widespread use by the 1950s.

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Shusterman on England's Standing Army Controversy (1697-99) and the Origins of the Second Amendment

Noah Shusterman, The Chinese University of Hong Kong, has published England’s Standing Army Controversy (1697-99) and the Origins of the Second Amendment. Here is the abstract.

This article explores the writings of England's Standing Army Controversy at the end of the seventeenth century, and the links between those writings and the debates over military policy during the founding era that would eventually lead to both the Constitution’s militia clause and the Second Amendment. Staring in 1697, a small group of British authors turned what had been a long-standing but undertheorized distrust of professional armies into an elaborate theory in favor of citizens’ militias. These authors argued that standing armies were inconsistent with a free society; that militias were superior fighting forces; and that maintaining a professional army would inevitably result in the army's leaders becoming despots. To prove their arguments, the authors used a combination of historical examples and theoretical discussions, drawing on Ancient Rome, Medieval Europe, and their understandings of what would or would not motivate soldiers. These writings became relevant to colonists in North America once the British began stationing troops around Boston during the buildup to the American Revolution. The ideas of the Standing Army Controversy provided colonists with a framework and vocabulary that linked Britain's action to those of other tyrannies, because of the use of professional soldiers against a civilian population. As states began issuing their own constitutions in 1776, several included language that grew out of the Standing Army Controversy, including the claim that "standing armies, in times of peace, are dangerous to liberty." These fears of standing armies, and the belief in citizen-soldiers rather than professional soldiers, remained the basis for the Second Amendment and for the broader debates it grew out of. The claim that a well-regulated militia is necessary for the security of a free state grew out of the writings of the Standing Army Controversy.

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Cramer on The National Firearms Act and Perceived Constitutional Limitations in 1934

Clayton E. Cramer, College of Western Idaho, has published The National Firearms Act and Perceived Constitutional Limitations in 1934. Here is the abstract.

Laws regulating firearms based on their lethality as "weapons of mass destruction" have no Founding Era equivalent and such weapons were for sale to civilians. They were common enough to be subject to fire safety regulations. How long did this Framing Era understanding persist? What implications does this have for so-called "assault weapons" and machine gun regulation? When Congress held hearings on the National Firearms Act (1934), discussions between Members of the Subcommittee and Executive branch advocates for the bill repeatedly phrased their support for this rather complex tax law because they recognized that a federal ban on civilian ownership or manufacture of machine guns was likely unconstitutional. This argues that the Framing Era understanding persisted well into the 20th century and should be part of understanding current post-Heller challenges to bump stock and machine gun regulation.

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Heniford and Still on Panic! At the Ballroom: The 1804 New Orleans Ballroom Weapons Ban in a Post-Bruen Context

Kellen Heniford, Everytown for Gun Safety, and Kari Still, Johns Hopkins Center for Gun Violence Solutions, are publishing Panic! At the Ballroom: The 1804 New Orleans Ballroom Weapons Ban in a Post-Bruen Context in the Buffalo Law Review. Here is the abstract.

In the aftermath of the Supreme Court’s decisions in New York State Rifle & Pistol Ass’n, Inc. v. Bruen in 2022 and United States v. Rahimi in 2024, history has taken a central role in the adjudication of Second Amendment cases. Researchers, courts, and litigators across the country have taken on the arduous task of sifting through archives of our nation’s history in order to compile a record of early American arms regulations. Litigation moves quickly, and too often, historical context is missing or selectively marshaled in these cases. This article builds upon efforts to provide that crucial context, specifically in relation to the history of the United States’ earliest enactments that banned weapons in ballrooms. Within, we (1) identify an as-of-yet uncited ballroom weapons ban in 1804 New Orleans, which is the earliest known regulation of its kind; (2) explicate the historical context surrounding that regulation, as well as the even stricter 1808 and 1817 bans that followed it; and (3) suggest general principles that may be distilled from these restrictions when they are considered within a larger historical tradition. We explain that these early nineteenth-century regulations can be understood as part of a historical tradition of weapons bans under either of two different types of sensitive places: places where there is a high probability of conflict and places where the presence of weapons is incompatible with the actual functioning of the place itself.

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Willinger on Missing Pieces: Gaps in the Record of Early American Decisional Law @AndrewWillinger @DukeFirearmsLaw @DukeLawJournal

Andrew Willinger, Duke University School of Law; Center for Firearms Law, is publishing Missing Pieces: Gaps in the Record of Early American Decisional Law in the Duke Law Journal Online. Here is the abstract.

In its most recent major Second Amendment decision, NYSRPA v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were subject to judicial scrutiny during crucial eras of American history because many court decisions—especially from the Founding Era—were simply never recorded for posterity. Those omissions were not random and they do not represent merely what we today would consider insignificant holdings. Rather, omissions from the surviving record of decisional law are the product of curation by early court reporters, newspaper editors, and other actors often motivated by profit or partisan bias. Therefore, it is often perilous to extrapolate “the general law” from the extant, unrepresentative caselaw that happens to be preserved today. This Essay examines how the non-legal choices and preferences of those who recorded early American decisional law prior to the gradual emergence of more consistent reporting of judicial decisions in the late 19th century shaped the historical record of early decisional law that exists today. Part I chronicles the largely inconsistent and at times chaotic practice of court reporting at and after the Founding and explores how judicial decisions were preserved and published during that time. Part II addresses how modern originalist theories should approach and appreciate the “curated” nature of legal history from that time. I argue that the record of early American decisional law has been profoundly influenced by various actors (legal and non-legal) according to considerations other than preserving an accurate, comprehensive snapshot of “general law” at the time—namely, based on motives including profit and partisanship. This reality, I suggest, means that it is crucial to expand the universe of historical sources when possible to capture what may be missing from the universe of preserved decisional law.

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Charles on Time and Tradition in Second Amendment Law @JacobDCharles @PeppLaw @FordhamULJ

Jacob D. Charles, Pepperdine University School of Law, has published Time and Tradition in Second Amendment Law at 51 Fordham Urban Law Journal 259 (2023). Here is the abstract.

The Supreme Court’s Second Amendment is a chronological chameleon. For one purpose, its meaning is fixed in the firmament of the Founding era. For another purpose, its language is anchored to the understanding of living Americans. One clause gets projected backwards, traced to antecedents in the 17th century. An adjacent clause gets projected forward, evolving alongside dynamic consumer preferences. Still other words or phrases are cloaked in meaning from different temporal epochs — the Long 18th Century, the Antebellum South, the Reconstruction Era, and even the Reagan Revolution. This oscillation remains unexplained in the Justices’ opinions. Why so many incompatible timelines? Only Χρόνος knows. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a new past-bound Second Amendment test. There, the Court said that no gun regulation can be upheld unless it has an analogue in the distant past — unless, that is, “the government can demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” That historical test masks the ways that the Supreme Court’s own pronouncements refer different questions to different time periods. Lower court judges have drawn attention to how the Court’s new guidance creates a “logical inconsistency” in the time that matters and fuels “anachronism” in the Court’s doctrine. They have recognized, that is, that time takes on supreme importance, but that the relevant temporal frame is not uniform across the questions pervading Second Amendment law. Neither the Court nor commentators give any reason to refer some questions to the Founding generation and others to Gen X. This brief Essay explores the inconsistency in the current doctrine. Part I charts the different questions that the Supreme Court has divided up among different temporal epochs. Part II begins to think through how the Court could redirect or justify its practice, either by referring all questions to the same time period or explaining why the existing diversity makes sense. Whatever the pathway, the Court should justify its doctrinal treatment of time.

Download the essay from SSRN at the link.

Buffington on Being vs. Because: New Observations on the Syntax & Semantics of the US Constitution's Second Amendment @AlbanyLaw

Joe Buffington, Albany Law School, has published Being vs. Because: New Observations on the Syntax & Semantics of the US Constitution’s Second Amendment. Here is the abstract.

The Second Amendment of the US Constitution is ambiguous due to its subordination of one clause to another without the use of an overt subordinating conjunction. Many scholars have argued that the subordination is more or less similar, if not identical, to what is seen in because-clauses. One such scholar, Karen Sullivan, has recently used corpus linguistics to conclude that the likeliest interpretation of the Second Amendment’s subordination when the Amendment was written was one of “external causation,” where the militia clause is understood as the real-world reason why the right-to-bear-arms clause is true. This essay responds to Sullivan’s significant work by presenting three synchronic differences between being-clauses and because-clauses that suggest that external causation may not be an optimal interpretation of the Amendment’s structure, after all. An alternative analysis, where the missing conjunction is modeled as a covert proform, is proposed, and consequences of the analysis are considered – in particular, I present a novel argument that the US Supreme Court’s controversial decision in District of Columbia v. Heller was, in essence, correct.

Download the essay from SSRN at the link.

Spitzer on Understanding Gun Law History After Bruen: Moving Forward by Looking Back @spitzerb @WMLawSchool

Robert J. Spitzer, SUNY Cortland; College of William & Mary School of Law, is publishing Understanding Gun Law History After Bruen: Moving Forward by Looking Back in volume 51 of the Fordham Urban Law Journal. Here is the abstract.

The Supreme Court’s 2022 Bruen Second Amendment decision has remade the criteria for judging the constitutionality of contemporary gun laws. As a consequence, every manner of modern gun law has been subject to new court challenges. Courts and lawyers are now struggling to determine whether modern challenged gun laws are “consistent with this Nation's historical tradition of firearm regulation.” My article takes Bruen at its word that American weapons law history matters as the primary basis for determining the constitutionality of modern gun laws. Therefore, this article does two things. First, I argue that a specific and sequential set of steps explains the relationship between the invention and development of various weapons and weapons technologies, their circulation in society, and subsequent governmental efforts to regulate, restrict, or prohibit those weapons in order to protect public safety and thwart crime. This relationship exists consistently throughout American history and is found to apply to three types of dangerous weapons—guns, fighting knives, and certain types of clubs and other blunt objects—that were subject to widespread, extensive, and varied regulation in the colonies, states, and localities across 300 years of American history. Second, this framework is applied through a detailed examination of weapons and weapons laws, including state restrictions on fully automatic and semiautomatic firearms in the early twentieth century; surprisingly extensive regulation of ammunition feeding devices during the same period; pre-20th century firearms technologies, incorporating an array of experimental multi-shot weapons dating back several hundred years; and historical restrictions on fighting knives (most notably the Bowie knife), blunt weapons and clubs, pistols, and trap guns. This article demonstrates that firearms and other dangerous weapons were subject to remarkably strict, consistent, and wide-ranging regulation throughout our history when they entered society, proliferated, and resulted in violence, harm, criminality, or threats to public safety and good order. This is even more remarkable given that the United States was an evolving and developing nation-state that could not claim to have reached maturity until the twentieth century. Gun ownership is as old as the country. But so are laws restricting guns and other dangerous weapons. If this history teaches anything, it is that the state has no less an abiding interest in preserving public safety today by restricting the tools that magnify violence than it did in prior centuries. Contemporary firearms restrictions are merely the latest iteration of a centuries-long tradition of weapons regulation and restriction.

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Charles on Time and Tradition in Second Amendment Law @JacobDCharles @PeppLaw @FordhamULJ

Jacob D. Charles, Pepperdine University School of Law, is publishing Time and Tradition in Second Amendment Law in volume 51 of the Fordham Urban Law Journal. Here is the abstract.

The Supreme Court’s Second Amendment is a chronological chameleon. For one purpose, its meaning is fixed in the firmament of the Founding era. For another purpose, its language is anchored to the understanding of living Americans. One clause gets projected backwards, traced to antecedents in the 17th century. An adjacent clause gets projected forward, evolving alongside dynamic consumer preferences. Still other words or phrases are cloaked in meaning from different temporal epochs — the Long 18th Century, the Antebellum South, the Reconstruction Era, and even the Reagan Revolution. This oscillation remains unexplained in the Justices’ opinions. Why so many incompatible timelines? Only Χρόνος knows. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a new past-bound Second Amendment test. There, the Court said that no gun regulation can be upheld unless it has an analogue in the distant past — unless, that is, “the government can demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” That historical test masks the ways that the Supreme Court’s own pronouncements refer different questions to different time periods. Lower court judges have drawn attention to how the Court’s new guidance creates a “logical inconsistency” in the time that matters and fuels “anachronism” in the Court’s doctrine. They have recognized, that is, that time takes on supreme importance, but that the relevant temporal frame is not uniform across the questions pervading Second Amendment law. Neither the Court nor commentators give any reason to refer some questions to the Founding generation and others to Gen X. This brief Essay explores the inconsistency in the current doctrine. Part I charts the different questions that the Supreme Court has divided up among different temporal epochs. Part II begins to think through how the Court could redirect or justify its practice, either by referring all questions to the same time period or explaining why the existing diversity makes sense. Whatever the pathway, the Court should justify its doctrinal treatment of time.

Download the essay from SSRN at the link.

DeLay on The Myth of Continuity in American Gun Culture @BrianDeLay @UCBerkeley

Brian DeLay, University of California, Berkeley, has published The Myth of Continuity in American Gun Culture. Here is the abstract.

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen elevated history, text, and tradition as the sole criteria for assessing the constitutionality of firearms restrictions. Gun-rights advocates have responded with a wave of Second Amendment challenges, most employing a three-part argument: 1) X firearms-related issue has been around since the founding; 2) the Founders did little or nothing about it; 3) therefore we cannot do anything about it, either. Legal scholars are engaged in critical work on parts 2 and 3 of that argument. As a professional historian involved in several Second Amendment cases over the past year, I have the disciplinary expertise to offer a critique of part 1. This Article explains why the argument for continuity in American gun culture is largely a myth, and offers a case study in the role that historical research can play in Second Amendment cases in the Bruen era. It begins by arguing that whereas today’s gun culture is consumerist, state-phobic, and individualist, early America’s gun culture was utilitarian, state-led, and collective. The Article then presents detailed critiques of the iterations of the myth of continuity being deployed to overturn laws regulating assault weapons, large-capacity magazines, and ghost guns. It demonstrates that these were nonexistent or impractical technologies in the Founding era, no more likely to attract regulatory attention than jetpacks do in our own times. Once these products finally became reliable enough consumer items to cause societal problems in the twentieth and twenty-first centuries, regulation quickly followed. Put into proper historical context, then, assault weapons, large-capacity magazines, and ghost guns represented “dramatic technological changes” that provoked “unprecedented societal concerns.” Regulations addressing those concerns should be found constitutional under Bruen’s history-centric framework. Good history should help preserve some firearms laws in the Bruen era. More importantly, by forcing states to research Founding-era history in order to defend firearms regulation, the decision will inevitably bring renewed scrutiny to Heller’s ahistorical claim that the Second Amendment was crafted to protect an individual right to armed self-defense. The Article therefore concludes by predicting that Bruen will ultimately destabilize the very foundation of modern Second Amendment jurisprudence.

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Kopel and Greenlee on This History of Bans on Types of Arms Before 1900 @SturmCOL @HeartlandInst @gunpolicy @CatoInstitute

David B. Kopel, Independence Institute; Denver University College of Law; Cato Institute, and Joseph Greenlee, The Heartland Institute; Firearms Policy Coalition; Millenial Policy Center, are publishing This History of Bans on Types of Arms Before 1900 in volume 50 of the Journal of Legislation (2024). Here is the abstract.

This Article examines all American state, territorial, and colonial laws that prohibited possession or sale of any type of arm. Also covered are English laws before 1776, and the Dutch and Swedish colonies in America. Among the arms studied are handguns, repeating guns, Bowie knives, daggers, slungshots, blackjacks, brass knuckles, and cannons. The U.S. Supreme Court's decision in New York State Rifle and Pistol Association v. Bruen directs lower courts to review modern gun control laws in part by analogy to historic laws before 1900. This Article provides the resources to do so, and offers its own analysis. Besides describing prohibitory laws, the Article details other types of regulation, such as forbidding concealed carry, forbidding all carry, restricting sales to minors, licensing dealers, or taxing possession. It is the first comprehensive study of historic American laws about knives, swords, and blunt weapons. It is also the first comprehensive study of the types of arms for which colonies and states required ownership by militiamen, by some men not in the militia, and by some women. The arms regulation laws and cases of the 19th century are examined in the context of the century's tremendous advances in firearms. The century that began with the single-shot muzzle-loading musket ended with modern semiautomatic handguns and magazines. Synthesizing Supreme Court doctrine with historic statutes and cases, the Article concludes that prohibitions on semiautomatic rifles and magazines lack foundation in American legal history. In contrast, other regulations, such as restricting the purchase of certain arms by minors, have a stronger historic basis.

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Rosenthal on Nonoriginalist Laws in an Originalist World: Litigating Original Meaning from Heller to Bruen @Chapman_Law @AmULRev

Lawrence Rosenthal, Chapman University School of Law, is publishing Nonoriginalist Laws in an Originalist World: Litigating Original Meaning from Heller To Bruen in volume 73 of the American University Law Review. Here is the abstract.

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the Second Amendment, in District of Columbia v. Heller. Last Term, the Court, in New York State Rifle & Pistol Association v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. There is a great deal to criticize in the Court’s treatment of the original meaning of the Second Amendment in the line of cases beginning with Heller and culminating in Bruen. That is the focus of Part I. Part I observes that by the time of Bruen, the Court had taken to ignoring the Second Amendment’s preamble altogether; a position difficult to reconcile with the view taken of preambles in both the framing era and Heller itself. The Court had also managed to both acknowledge and then ignore the demonstrable ambiguity in the meaning of the Second Amendment right to “bear arms.” These errors seriously distorted the Court’s purportedly originalist analysis. Part I is a relatively conventional example of the type of legal scholarship that dissects Supreme Court opinions. Part II takes a less familiar turn by focusing on the lawyering of those who defended the laws at issue in these cases. After undertaking to show that the Supreme Court’s decisions should not be regarded as autonomous, but instead as reflecting to a considerable extent the arguments pressed on it, Part II demonstrates that the Court’s errors mirror serious litigating errors by the attorneys defending the laws at issue in these cases. These flawed litigating strategies reflect, Part II shows, an incomplete grasp of the conceptual underpinnings of originalism as a method of constitutional interpretation. Lawyers defending statutes or other legal regimes without clear framing-era antecedents must develop a more sophisticated understanding of originalist constitutional interpretation. Part III offers a guide for avoiding the kind of errors reflected in the thus-far unavailing efforts to defend challenged firearms regulation from Second Amendment attack, in both Second Amendment litigation and other areas of constitutional law.

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Charles on The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History @JacobDCharles @PeppLaw @DukeLawJournal

Jacob D. Charles, Pepperdine University School of Law, is publishing The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History in volume 73 of the Duke Law Journal. Here is the abstract.

In June 2022, the Supreme Court struck down a state concealed carry law on Second Amendment grounds. In that decision, New York State Rifle & Pistol Association v. Bruen, the Court declared that future Second Amendment challenges should be evaluated solely with reference to text, history, and tradition. That test is essentially sui generis in the Court’s individual-rights jurisprudence. Yet it represents both an extension of an increasingly historically-focused Supreme Court case law and a harbinger of future doctrinal transformations in other domains. This Article critically assesses Bruen’s test, and in the process raises concerns about other areas of rights-jurisprudence trending in ever more historically-inflected directions. In critiquing Bruen’s method, the Article foregrounds the unsatisfying justifications for the novel test and its unworkable features. It underscores how Bruen’s emphasis on historical silence imbues an absent past with more explanatory power than it can bear—or than the Court even tries to justify. The Article then synthesizes and analyzes the results from the more than 100 lower federal court decisions applying Bruen, which reveals the test’s fundamental unworkability. On top of that descriptive and critical work, the Article makes several prescriptive arguments about possible judicial and legislative responses to the decision. For judges, the Article endorses and augments arguments about the use of neutral historical experts appointed by courts, identifies ways that lower courts can usefully underline Bruen’s flaws and mitigate its open texture, and suggests that courts are justified in narrowing Bruen from below. For lawmakers, it argues that when legislatures pass new gun laws, they ought to be explicit about four types of evidence for the law’s constitutionality that track Bruen’s new demands: the purpose for the law, the expected burden on armed self-defense, the precise nature of the problem to which the law is directed, and the historical tradition from which the law springs.

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Connolly on Maryland's Historical Firearms Restrictions and What They Mean After Heller, McDonald, and Bruen

John Connolly has published Maryland's Historical Firearms Restrictions and What They Mean After Heller, McDonald, and Bruen. Here is the abstract.

Historical state laws regulating firearms have become relevant to modern firearms legislation after the Supreme Court’s decisions in Heller, McDonald, and Bruen. This article tries to catalog and analyze all historical firearms laws in one of the original 13 states, Maryland, and considers how those laws might affect modern legislative efforts to regulate firearms.

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Behrens and Blocher on A Great American Gun Myth: Race and the Naming of the "Saturday Night Special" @DukeLawLibrary @DukeLaw

Jennifer L. Behrens, Duke University School of Law, J. Michael Goodson School of Law Library, and Joseph Blocher, Duke University School of Law, have published A Great American Gun Myth: Race and the Naming of the 'Saturday Night Special' as Duke Law School Public Law & Legal Theory Series No. 2023-02. Here is the abstract.

At a time when Second Amendment doctrine has taken a strongly historical turn and gun rights advocates have increasingly argued that gun regulation itself is historically racist, it is especially important that historical claims about race and guns be taken seriously and vetted appropriately. In this short article, we evaluate the often-repeated claim that the nickname “Saturday Night Special” derives from the phrase “[n___er]-town Saturday night.” Based on a review of newspapers, legislative debates, dictionaries, slang compendiums, and other sources, we find no historical support for this claim. It apparently appeared for the first time, unsourced, in a 1976 article and has been repeated in dozens of briefs and scholarly sources since. Advocates and scholars should stop invoking this unsupported origin story, which if anything serves as a cautionary example of how citations can cascade. The most plausible origin of the nickname as it related to cheap firearms stemmed from the turn of the century when the phrase “Saturday-night special” was already in common usage with connotations of cheapness and convenience.

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Stevenson on Revisiting the Original Congressional Debates about the Second Amendment @STCL_Houston

Drury D. Stevenson, South Texas College of Law, Houston, has published Revisiting the Original Congressional Debates about the Second Amendment. Here is the abstract.

Many scholars and courts have written about the historical background of the Second Amendment, either to emphasize its connection to state-level citizen militias or to argue that the Amendment protects an individual right to own and carry guns for self-defense. While many authors have mentioned the original Congressional debates about the Second Amendment, the literature is missing a thorough, point-by-point analysis of those debates, situating each statement in Congress within the context of the speaker’s background and political stances on issues overlapping with the right to keep and bear arms. This Article attempts to fill this gap by providing a methodical discussion of each comment or argument made in Congress when the Second Amendment was under consideration. This discussion addresses how each of the Congressmen’s comments connect to public statements made by the same members of Congress in the months that followed on related topics: taxation and public debt related to militias, the supply of available firearms and their legal status as private or public property, the institution of slavery, westward expansion, and especially the complications for each of these issues posed by the Quakers, who became the center of attention during the debates about the Second Amendment. These original Congressional debates have taken on more importance following the Supreme Court’s recent holding that courts should decide Second Amendment challenges based historical evidence from the years immediately preceding and following ratification. While this Article does not take a position on current litigation over modern firearm regulations, the discussion here can offer courts and commentators new insights into the original public meaning of the Second Amendment.

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ICYMI: Goldfarb on A (Mostly Corpus-Based) Linguistic Reexamination of D.C. v. Heller and the Second Amendment @NealGoldfarb

ICYMI: Neal Goldfarb has published A (Mostly Corpus-Based) Linguistic Reexamination of D.C. v. Heller and the Second Amendment. Here is the abstract.

This is an in-depth linguistic analysis of the key language in the Second Amendment ("the right of the people to keep and bear Arms") that is based primarily on evidence of actual 18th-century usage. That evidence comes from two corpora that have been developed and made available by the BYU Law School as resources for researching the original meaning of the language used in the Constitution: COFEA (the Corpus of Founding Era American English) and COEME (the Corpus of Early Modern English). The corpus data provides powerful evidence that contrary to what the Supreme Court held in District of Columbia v. Heller, "bear arms" was used in the Second Amendment in its idiomatic military sense, and in fact that it was most likely understood to mean serve in the militia. Thus, the right to bear arms was most likely understood as being the right to serve in the militia. The analysis proceeds roughly as follows: "BEAR" and "ARMS": The Supreme Court’s interpretation of "bear" and "arms" in District of Columbia v. Heller was accurate as far as it went, but it is clear from evidence of historical usage that was unavailable at the time that the Court’s interpretation failed to reflect how "bear" and "arms" were actually used in the late 18th century. Although "bear" was sometimes used to mean ‘carry,’ the two words weren’t generally synonymous. The ways in which "bear" was used differed substantially from those for "carry." While "carry" was often used to denote the physical carrying of tangible objects (e.g., "carry baggage"), "bear" was seldom used that way. In fact, "carry" had by the end of the 1600s replaced "bear" as the verb generally used to convey the meaning ‘carry.’ In addition, although "arms" was often used to mean ‘weapons,’ it was also used roughly as often to convey a variety of figurative meanings relating to the military. "BEAR ARMS": The corpus data for "bear arms" was overwhelmingly dominated by uses of the phrase in its idiomatic military sense. (This is unsurprising given the conclusions, above, regarding "bear" and "arms.") The Supreme Court in Heller was therefore mistaken in declaring that the “natural meaning” of "bear arms" was essentially, ‘carry weapons in order to be prepared for confrontation.’ The phrase was ordinarily used to convey the meaning ‘serve in the military’ (specifically, ‘in the militia’) or ‘fight in a war.’ "THE RIGHT OF THE PEOPLE TO...BEAR ARMS": Consistently with how "bear arms" was ordinarily used, the right to bear arms was most likely understood as conveying its idiomatic military sense, and in particular as meaning ‘the right to serve in the militia.’ That conclusion is based to a large extent on the fact that there is reason to think that "bear arms" was understood to mean the same thing as to the right to bear arms as it meant with respect to the duty to bear arms — and the duty to bear arms was understood as a duty to serve in the militia. In addition, there is reason to believe, contrary to what the Court said in Heller, that as used in the Second Amendment, "the people" referred to those who were eligible for militia service. The interpretation described above is not ruled out by the fact that "bear arms" appears as part of the phrase "keep and bear arms." Although that interpretation requires that arms be understood as being simultaneously literal (as part of "keep arms") and figurative (as part of "bear arms") there is reason to believe that that was in fact how "keep and bear arms " was understood at the time of the Second Amendment’s framing and ratification.

Download the article from SSRN at the link.

Phillips and Blackman on Corpus Linguistics and Heller @JoshMBlackman

James Cleith Phillips, Chapman University School of Law, and Josh Blackman, South Texas College of Law, are publishing Corpus Linguistics and Heller in volume 56 of the Wake Forest Law Review (2021). Here is the abstract.

In District of Columbia v. Heller, the Supreme Court sharply divided over the meaning of the twenty-seven words in the Second Amendment. Justice Scalia wrote the majority opinion. He concluded that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” In short, an “individual” right. Justice Stevens, in his dissent, contended that the Second Amendment “is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” That is, a “collective” right. Justice Scalia and Justice Stevens both made linguistic claims about four elements of the Second Amendment: “right of the people,” “keep and bear arms,” “keep arms,” and “bear arms.” Both the majority and the dissent used various textualist approaches to consider these four phrases, but their toolkit in 2008 was limited. They considered only a fairly narrow range of sources to interpret the text. Today, we can do better. In this Article, we will grade the four linguistic claims made in the Heller case using corpus linguistics. We rely on the Corpus of Founding Era American English (“COFEA”). In 2015, one of us conceptualized and oversaw the initial development of COFEA. We performed five queries with COFEA. First, we queried right of the people. Second, we queried keep and bear arms (and synonyms). Third, we queried the word right within six words of arms. Fourth, we queried the word keep, and variants of keep, within six words of arms. Fifth, we queried the word bear, and variants of bear, within six words of arms. We used multiple coders who independently coded their results using a type of double-blind methodology. Both the majority and the dissenting opinions erred with respect to some of their linguistic claims. Justices Scalia and Stevens should have expressed far more caution when reaching their textualist conclusions based on the narrow subset of founding-era sources they reviewed. Additionally, corpus linguistic theory reveals that there are inconsistencies in both Justice Scalia’s and Stevens’s descriptions of the Second Amendment’s original public meaning.

Download the article from SSRN at the link.

Smith and Peterson on Big Data Comes For Textualism: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation

Mark W. Smith, Oxford University Department of Pharmacology; The King's College, and Dan M. Peterson, Independent, have published Big Data Comes for Textualism: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation. Here is the abstract.

Some scholars, judges, and advocates have recently urged that legal corpus linguistics, a methodology that uses computerized searches of large volumes of texts known as “corpora,” can determine the original meaning of constitutional provisions. More particularly, certain of these advocates have argued that corpus linguistics searches of Founding era corpora prove that the Second Amendment right to keep and bear arms protects only a collective, militia right and not an individual, private right to arms, contrary to the Supreme Court’s interpretation of that amendment in District of Columbia v. Heller, 554 U.S 570 (2008). In this article, we argue that relying on corpus linguistics to determine the meaning of the Second Amendment suffers from severe conceptual and practical difficulties. One of the most fundamental flaws concerns the central methodological assumption of corpus linguistics—the “frequency hypothesis”—which posits that the most frequent meaning of a word or phrase returned by a corpus search should be the meaning adopted for purposes of constitutional interpretation. Even if the phrase “bear arms” most frequently appears in a military context, that does not mean that the constitutional language excludes an individual right to bear arms for self-defense and other private purposes. Military and militia references were more likely to appear in public discussions of the right to bear arms simply because they were more “newsworthy” than the mundane acts of ordinary people carrying a firearm for hunting or defense, which would rarely be recorded. Contemporary examples, including references by the Founders themselves, show that the right to “bear arms” included protection of an individual right as well as furthering a well-regulated militia. In addition, corpus linguistics suffers from serious problems concerning the composition of the corpora, which are biased in favor of elite language usage and are critically incomplete, missing some of the key texts that historians and legal scholars have long relied upon in discerning the Second Amendment’s meaning. Use of legal corpus linguistics also raises serious practical difficulties in actual constitutional litigation, including the absence of the usual safeguards applicable to expert or “scientific” evidence. In the end, the counting of words resulting from a corpus search cannot overcome the history and traditions at the time of the Founding that allowed free carry and use of firearms, and the core conception by the Founders that self-protection with arms is a pre-existing right that cannot be taken away from the individual by any act of civil society.

Download the article from SSRN at the link.