Fordham Urban Law Journal Fordham Urban Law Journal
Volume 51
Number 1 Public Health, History, and the Future
Of Gun Regulation after Bruen
Article 7
2023
Time and Tradition in Second Amendment Law Time and Tradition in Second Amendment Law
Jacob D. Charles
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Jacob D. Charles, Time and Tradition in Second Amendment Law, 51 Fordham Urb. L.J. 259 (2023).
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259
TIME AND TRADITION IN SECOND
AMENDMENT LAW
Jacob D. Charles
*
Introduction ...................................................................................... 259
I. The Second Amendment in Time .................................................. 263
A. Questions Referred to the Founders .................................. 264
B. Questions Referred to Later Generations .......................... 267
II. Temporal Stasis or a Dynamic Doctrine? .................................... 273
A. A Fixed-Time Doctrine ..................................................... 274
B. Dynamic Second Amendment Rights ............................... 275
Conclusion ........................................................................................ 276
I
NTRODUCTION
The Supreme Court’s Second Amendment is a chronological chameleon.
For one purpose, its meaning is fixed in the firmament of the Founding era.
1
For another purpose, its language is anchored to the understanding of living
Americans.
2
One clause gets projected backwards, traced to antecedents in
the 17th century.
3
An adjacent clause gets projected forward, evolving
alongside dynamic consumer preferences.
4
Still other words or phrases are
260 FORDHAM URB. L.J. [Vol. LI
cloaked in meaning from different temporal epochs — the Long 18th
Century,
5
the Antebellum South,
6
the Reconstruction Era,
7
and even the
Reagan Revolution.
8
This oscillation remains unexplained in the Justices’
opinions. Why so many incompatible timelines?
Only Χρόνος knows.
9
Debates over timelines are common in constitutional law.
10
As Alison
LaCroix says, “[q]uestions of time and temporality pervade American
(“ [E]ven if these colonial laws prohibited the carrying of handguns because they were
considered ‘dangerous and unusual weapons’ in the 1690s, they provide no justification for
laws restricting the public carry of weapons that are unquestionably in common use today.”)
(emphasis added); see also Philip Casey Grove, Common Use Under Fire: Kolbe v. Hogan
and the Urgent Need for Clarity in the Mass-Shooting Era, 59 A
RIZ. L. REV. 773, 799 (2017)
(discussing divergent court understandings and “the legitimate concerns surrounding the
practical consequences of the common-use test”).
5. See Heller, 554 U.S. at 593 (describing the right to arms protected in the 1689 English
Bill of Rights and arguing that it “had become fundamental for English subjects” by the time
of the American Founding).
6. See id. at 611–14 (analyzing antebellum state cases as interpretive aids); see also Eric
M. Ruben & Saul Cornell, Firearm Regionalism and Public Carry: Placing Southern
Antebellum Case Law in Context, 125 Y
ALE L.J. F. 121, 123–24 (2015) (criticizing the Heller
myopic focus on the South, with its “distinctive culture of slavery and honor”). Bruen also
relied on Dred Scott as a positive guide to the Constitution’s meaning. See Bruen, 142 S. Ct.
at 2151 (“[E]ven Chief Justice Taney recognized (albeit unenthusiastically in the case of
blacks) that public carry was a component of the right to keep and bear arms — a right free
blacks were often denied in antebellum America.”).
7. See Heller, 554 U.S. at 614–15 (discussing reports during Reconstruction about
efforts to disarm formerly enslaved people).
8. See Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in
Heller, 122 H
ARV. L. REV. 191, 192 (2008).
9. Χρόνος, or Chronos, is the personification of time in Greek mythology. Chronos,
G
REEKMYTHOLOGY.COM,
www.greekmythology.com/Other_Gods/Primordial/Chronos/chronos.html
[https://perma.cc/K6VM-PJMP] (last visited Oct. 6, 2023).
10. Many constitutional issues have engendered disputes about time or timing. These
include broad-level questions about interpretation and understanding, such as debates over
originalism, living constitutionalism, and pluralistic constitutional theories, which often
dispute the proper temporal era in which to locate constitutional meaning. See, e.g., Lawrence
B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 N
OTRE
DAME L. REV. 1, 15 (2015) (describing a core feature of originalist families of interpretation
to be the fixation thesis, which holds that “[t]he object of constitutional interpretation is the
communicative content of the constitutional text, and that content was fixed when each
provision was framed and/or ratified”); Curtis A. Bradley & Neil S. Siegel, Historical Gloss,
Madisonian Liquidation, and the Originalism Debate, 106 V
A. L. REV. 1, 11 (2020) (“In
contrast to the general receptivity of non-originalism towards post-Founding historical
practice, such practice is not a natural fit for originalism.”). See generally J
ACK M. BALKIN,
THE CYCLES OF CONSTITUTIONAL TIME (2020). They also include questions about the timing
of constitutional amendments. See, e.g., Brannon P. Denning & John R. Vile, Necromancing
the Equal Rights Amendment, 17 C
ONST. COMMENT. 593, 595–96 (2000) (discussing
questions about the passage of time between votes to ratify the proposed Equal Rights
Amendment and the 27th Amendment); Stewart Dalzell & Eric J. Beste, Is the Twenty-
2023] TIME AND TRADITION 261
constitutional theory.”
11
Indeed, in Michael McConnell’s view,
“disagreements about time are at the heart of the most prominent arguments
in constitutional theory.”
12
But, despite echoes elsewhere, those debates take
on dramatic significance in the Second Amendment context. 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.”
13
History, tradition, and analogy alone now determine constitutionality.
14
That historical test masks the ways that the Supreme Court’s own
pronouncements refer different questions to different time periods.
Who are “the people” entitled to exercise the right to keep and bear
arms?
15
What weapons qualify as “arms” meriting constitutional
protection?
16
What regulations “infringe[]” Second Amendment rights?
17
Nearly every answer to a central question about the right to keep and bear
arms turns on what some group, at some time, thought or did.
18
Lower court
judges have drawn attention to how the Court’s new guidance creates a
Seventh Amendment 200 Years Too Late?, 62 GEO. WASH. L. REV. 501, 503 (1994) (noting
that many questions about the validity of the 27th Amendment “concern the question of
whether a proposed amendment to the Constitution must be ratified in a timely manner after
its transmission to the states”); B
RUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 6–7 (1991)
(developing a theory of higher law-making in constitutional moments that can effectively
amend the Constitution outside Article V’s formal process).
11. See Alison L. LaCroix, Temporal Imperialism, 158 U.
PA. L. REV. 1329, 1331 (2010).
12. See Michael W. McConnell, Time, Institutions, and Interpretation, 95 B.U.
L. REV.
1745, 1751 (2015); cf. Yuvraj Joshi, Racial Time, 90 U. CHI. L. REV. 1625, 1678 (2023)
(exploring how the Supreme Court’s doctrine has often “played a significant role in enacting
and universalizing dominant perspectives of time”).
13. N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2126 (2022); Jacob
D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History,
73 DUKE L.J. 67, 71 (2023) (questioning the outsized role that Bruen places on historical
legislation, and thus, on historical silence).
14. See Bruen, 142 S. Ct. at 2126.
15. See U.S.
CONST. amend. II.
16. See id.
17. See id.
18. See McConnell, supra note 12, at 1750 (arguing that each of the various constitutional
methodologies “resolves uncertainties in the meaning of constitutional principles by looking
to how a particular institution or set of institutions . . . at a particular time period (the
beginning, the present, or in-between) understands or has understood that constitutional
principle”).
262 FORDHAM URB. L.J. [Vol. LI
“logical inconsistency”
19
in the time that matters and fuels “anachronism”
20
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.
To take one example, consider how to ascertain whether a given weapon
is entitled to Second Amendment protection. The Supreme Court in Heller
said that “the sorts of weapons protected” are those weapons in “common
use.”
21
Thereafter courts applied this “common use” test by asking whether
people today commonly own and use the weapon at issue.
22
Justice Thomas
has decried lower court rulings upholding restrictions on what he calls
“modern sporting rifles” like AR-15 style rifles that “millions of Americans
commonly own for lawful purposes.”
23
Other judges have curiously
emphasized that Americans purchased more of these types of weapons in
recent years than Ford F-150 trucks.
24
“Imagine,” said one judge, “every
time one passes a new Ford pickup truck, it is a reminder that two new
modern rifles have been purchased.”
25
The correct time frame in this view
is unapologetically contemporary. What do today’s armed citizens choose?
Contrast that question with what regulations government can enact to
address gun violence. Here, the Supreme Court has been equally emphatic
— but in the opposite direction. The limits on the government’s authority
2023] TIME AND TRADITION 263
respecting firearms were set in stone in the 18th (or perhaps 19th) century.
26
The Second Amendment, said Justice Scalia, “is the very product of an
interest balancing by the people” who placed it into the Constitution, and
judges today cannot conduct that balance anew.
27
Likewise, today’s
legislatures get no deference.
28
Only the ancient balance — the one “struck
by the traditions of the American people” — compels the courts’
“unqualified deference.”
29
And evidence of any tradition that comes too late
after 1791 is not a basis to uphold a modern law.
30
Comparing the common-
use test to this method shows the inconsistencies in the treatment of time.
Gun rights obtain evolving protection, but the state’s regulatory authority
stagnates, stuck behind in the dusty session laws of historical state
legislatures.
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. Some go back to the Founding era, while many
others are punted to later generations — to either the amorphous post-
ratification era (what McConnell calls “the in-between” time) or to the
present.
31
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.
I.
THE SECOND AMENDMENT IN TIME
Sundry questions about the Second Amendment’s scope haunt the Court’s
existing decisions. Some of the answers seem time-bound, while others
evolve through the passing decades. This Part traces two key timeframes
and categorizes the questions that the Supreme Court refers to both: the
Founding and the Post-Founding eras.
Section I.A focuses on questions that the Court has ostensibly bound to
earlier generations, including questions about the meaning of what the
Justices called the Second Amendment’s “operative clause” and the
regulatory baselines that set the parameters for the constitutionality of future
gun laws. Section I.B charts the surprising number of questions that were
264 FORDHAM URB. L.J. [Vol. LI
not set in stone at the Amendment’s ratification but evolve through time,
including questions about the purpose for the right to keep and bear arms,
coverage for particular types of weapons, and more.
A. Questions Referred to the Founders
In 2008, when the Supreme Court first construed the Second Amendment
to protect an individual right unconnected to service in the militia, its
decision sounded in originalist rhetoric.
32
It sought the original public
meaning of the constitutional text by appealing to Founding-era sources and
dictionaries.
33
Even in the primary dissent, Justice John Paul Stevens
engaged the majority on the question of what the Second Amendment meant
at the Founding.
34
Some commentators hailed Heller as “the finest example
of what is now called ‘original public meaning’ jurisprudence ever adopted
by the Supreme Court.”
35
Other scholars have questioned how truly
originalist the decision actually was.
36
Indeed, the Court’s decision in
Heller, and its more recent pronouncements in Bruen, refer only some
questions about the Second Amendment to the Founding generation.
Consider the paucity of questions expressly bound to early America.
Operative Clause. The Supreme Court in Heller said it was interpreting
the language of the Second Amendment with an eye toward what it meant to
the people who ratified it in 1791.
37
The primary focus of the opinion was
settling what was then the principal debate over the Second Amendment: did
it protect an individual right to keep and carry weapons for personal reasons,
like self-defense against crime, or only a militia-oriented right that was in
2023] TIME AND TRADITION 265
some way dependent on a person’s connection to collective defense?
38
Dictionaries, commentators, and other historical sources formed the grist for
the Court’s interpretive work.
39
The answer to the perennial question, Heller
said, was settled over 200 years ago in favor of a personal right devoid of
militia baggage.
40
“The right to keep and bear arms,” which the Heller
majority dubbed the Second Amendment’s “operative clause,”
41
meant that
an individual has a right “to possess and carry weapons in case of
confrontation.”
42
Despite the massive changes in weaponry and in society,
the Court said it could not and would not “pronounce the Second
Amendment extinct.”
43
Regulatory Baselines. Across cases, the Court has also indicated that
regulatory authority today depends in large part on choices made by long-
dead Americans. In Heller, the Court made clear its understanding that
“[c]onstitutional rights are enshrined with the scope they were understood to
have when the people adopted them.”
44
In laying out its novel methodology,
the Court in Bruen doubled down on this notion in rejecting regulatory
innovation.
45
No longer can lower courts decide Second Amendment challenges by
asking conventional questions about narrow tailoring and compelling
government interests.
46
Instead, what matters now is solely whether the
government can prove that the challenged law “is consistent with this
Nation’s historical tradition of firearm regulation.”
47
And, Bruen
underscored, “not all history is created equal,”
48
because evidence from too
long before or too long after the Second Amendment’s ratification offers
little insight into the proper scope of regulatory authority.
49
Thus, like
266 FORDHAM URB. L.J. [Vol. LI
Heller’s treatment of the operative clause, Bruen also invoked an epochal
moment of higher lawmaking — the ratification of the Second Amendment
in 1791 — as the baseline for setting the boundaries around permissible
regulation.
Even in these limited areas, however, there was slippage suggesting the
landscape was not as settled as it seemed. Where did “self-defense” come
from as a core and “central component” of the protection for bearing arms?
50
Despite what the Court said, that conclusion seemed to arise not from a close
reading of the text or historical sources, but from a close connection to
modern movement actors.
51
Thus, even the limited interpretive anchorage
in the Founding era seems uncertain.
And Bruen’s fealty to the Founding generation’s boundary setting sits
uneasily with its emphasis on tradition as a permissible basis for validating
legislation today. What role does “tradition” play, separate and apart from
history, in Bruen’s new test? If, as the Court said, text trumps later
inconsistent historical practice,
52
then why look to tradition at all instead of
resting on the words’ public meanings in 1791?
53
Several scholars have recently tried to reconcile Bruen’s
pronouncements.
54
Randy Barnett and Larry Solum, for example, argue that
“the deployment of the historical tradition test in Bruen operates within an
originalist framework and is not a rejection of originalism” because it is best
understood as an interpretation of the Second Amendment’s original scope.
55
Sherif Girgis, on the other hand, calls Bruen an example of “living
2023] TIME AND TRADITION 267
traditionalism,” a type of decision that relies on post-ratification practices
that are not tied to the Constitution’s original meaning.
56
Marc DeGirolami
has similarly argued that Bruen’s test is best understood as a form of
traditionalism, not simply a form of liquidated originalism.
57
Bruen’s
reference to the “unqualified deference” owed to the balance between rights
and regulation “struck by the traditions of the American people” sounds less
like authority is fixed at the Founding than that it can evolve post-1791.
58
The point, however, is that even Bruen’s attempt to root regulatory baselines
in the distant past obscures how the past actually matters.
B. Questions Referred to Later Generations
Perhaps surprising for an area of law that has often been viewed as one of
the most expressly originalist,
59
many of the questions in Second
Amendment doctrine are actually tied to times that post-date the
amendment’s codification. Heller began this trend. It made weapon
protection turn on modern consumer preferences,
60
relied on notions of the
purpose for Second Amendment rights that are decidedly contemporary,
61
and carved out exceptions that appear crafted to keep the modern federal
regulatory edifice intact,
62
among others. Bruen continued and amplified
this modernization. This Section considers several of these questions in turn.
268 FORDHAM URB. L.J. [Vol. LI
Weapon Protection. In Heller, the Court announced that the Second
Amendment presumptively protects bearable weapons as “arms.”
63
But it
then significantly modified its own prima facie statement.
64
The right to
keep and carry arms is limited to those that are in “common use” for lawful
purposes.
65
The context makes clear what Justice Alito later underscored:
the question is not what self-defense tools were popular among the yeoman
farmer in the 18th century, or those weapons’ “lineal descendants,”
66
but
what arms are “commonly possessed by law-abiding citizens for lawful
purposes today.”
67
Only on such a contemporary reading could Heller have
so breezily concluded that “the American people have considered the
handgun to be the quintessential self-defense weapon.”
68
That was certainly
not true at the Founding and for a long stretch after.
69
Taking their cue from these statements, current court battles waged over
weapon regulations are fought on modern terrain. Judges, parties, and
experts duel over contemporary manufacturing
70
and sales data,
71
recent
DAVIS L. REV. 2495, 2496 (2022).
67. Caetano v. Massachusetts, 577 U.S. 411, 420 (2016) (Alito, J., concurring); see also
Cody J. Jacobs, End the Popularity Contest: A Proposal for Second Amendment “Type of
Weapon” Analysis, 83 TENN. L. REV. 231, 233 (2015) (“[T]est asks whether the weapon at
issue is in common use at the time the case is decided.”).
68. Heller, 554 U.S. at 629.
69. See Eric Ruben, Law of the Gun: Unrepresentative Cases and Distorted Doctrine, 107
IOWA L. REV. 173, 207 (2021) (“Only a distinct minority of colonists owned pistols at the time
of the founding — which, according to one historian, made up less than ten percent of the
firearm stock.” (internal citation and emphasis omitted)); see also S
AUL CORNELL, A WELL-
R
EGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN
AMERICA 114 (2006) (writing that, around the time of the Founding, a pistol “was a
notoriously poor choice for personal self-defense” given its unreliability); Julie Turkewitz &
Troy Griggs, Handguns Are the New Home Security, N.Y.
TIMES (Oct. 14, 2016),
www.nytimes.com/interactive/2016/10/12/us/handguns-gun-ownership-survey.html
[https://perma.cc/UF5P-57BJ] (charting the recency of a primary interest in handguns among
gun owners). See generally John Berrigan, Deborah Azrael & Matthew Miller, The Number
and Type of Private Firearms in the United States, 704 T
HE ANNALS AM. ACAD. POL. & SOC.
SCI. 70 (2022).
70. See, e.g., Heller v. District of Columbia, 670 F.3d 1244, 1261 (D.C. Cir. 2011) (Heller
II) (relying on the number of AR-15s manufactured since 1986 as a sign of commonality).
71. See Kolbe v. Hogan, 849 F.3d 114, 153 (4th Cir. 2017) (en banc) (Traxler, J.,
dissenting) (discussing manufacturing numbers for AR-15s).
2023] TIME AND TRADITION 269
surveys about gun ownership,
72
and statistics about weapon use today.
73
Even then, the unanswered questions are plentiful. One court reviewing a
large-capacity magazine (LCM) prohibition underscored this ambiguity —
and how much of the focus is on modern facts and values:
Without clear guidance from binding authority, this Court is forced to
determine which metric is most appropriate for evaluating “common use.”
Is it sufficient, for instance, for a court to consider the absolute number of
LCMs sold in the United States? Or should a court consider the percentage
of LCMs relative to the overall civilian gun stock in the United States?
Should a court consider not only the absolute number of LCMs, but the
number of Americans that own those LCMs? And if this ratio suggests that
a relatively small percentage of gun owners possess a disproportionate
number of LCMs, does that mean that LCMs are not commonly owned?
74
There is little room for resort to history when asking these kinds of
questions about common use. To the extent historical analysis might play a
role in an inquiry about weapon protection, it is most useful to underscore
the wide transformation in weaponry and lethality from the Founding to the
modern era.
75
Purpose. As the prior Section suggested, the implicit theory in Bruen and
Heller about the Second Amendment’s underlying purpose grounds the right
in self-defense.
76
But that theme sounds quite modern as a justification for
the right to arms.
77
An alternative theory — the anti-tyranny conception —
would ground the right in the need for armed citizens to prevent or deter
government tyranny.
78
The anti-tyranny theory seems to have more
270 FORDHAM URB. L.J. [Vol. LI
historical basis than the self-defense theory,
79
but Heller closed the door on
it. The Court said “weapons that are most useful in military service — M–
16 rifles and the like — may be banned.”
80
The “quintessential self-defense
weapon,” however, secures ultimate constitutional protection.
81
The choice of theory is not a purely academic exercise. It could have
downstream effects on how courts resolve certain claims, such as bans on
automatic weapons, semi-automatic rifles designated assault weapons, and
large-capacity magazines. Glenn Reynolds, for example, writes that if the
Court had adopted the anti-tyranny rationale, “then questions involving the
treatment of tasers, pepper spray, and the like might be avoided: such
weapons have limited military utility, and their presence among the populace
probably does little to deter tyranny.”
82
But the Court did not. Reva Siegel
has shown how the self-defense rationale that Heller vindicated arose from
a shift in emphasis among gun-rights proponents in the 1980s and 1990s, as
it became increasingly difficult for the mainstream movement to stay
affiliated with domestic extremists committing violence under the banner of
the anti-tyranny conception.
83
As one commentator concluded, “Heller’s
discussion of the centrality of self-defense and the defense of the home, and
the extent to which a challenged regulation impinges on the interest in such
defense, has no apparent footing in the original meaning of the Second
Amendment’s operative clause.”
84
Exclusions. In Heller, the Court set aside a number of regulations as
untouched by its ruling:
[N]othing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools
and government buildings, or laws imposing conditions and qualifications
on the commercial sale of arms.
85
2023] TIME AND TRADITION 271
Brannon Denning and Glenn Reynolds called this “Heller’s safe
harbor.”
86
Lower courts employed these often,
87
but these exclusions were
not grounded in historical sources. Rather, a sort of pragmatism better
explains why they appeared in the decision.
88
After all, to take one example,
no Founding-era laws prohibited felons or people with select mental health
histories from possessing guns.
89
Those laws are a product of the early 20th
century. Heller’s carve-out for these laws is more ipse dixit than reasoned
historical conclusion.
90
They are grounded in an implicit contemporary
weighing of costs and benefits, not in a fixed original public meaning
analysis.
91
People Protection. Based in part on the mixed messages Heller sent about
who can exercise the right to keep and bear arms, courts have yet to work
out an adequate theory of when government can constitutionally disarm
someone. Some have searched for theoretical rationales in the historical
record — dangerousness, virtue, or law-abidingness.
92
Others have looked
not to history but to contemporary understandings of who belongs to the
American community.
93
And, of course, the groups included in the political
community have changed dramatically over the last 250 years.
94
Courts and
commentators alike disagree about the right time period in which to look.
95
272 FORDHAM URB. L.J. [Vol. LI
Consider the Eastern District of Virginia’s discussion in a recent challenge
to the federal law barring those under 21 from purchasing handguns from
federally licensed firearms dealers.
96
That court first had to determine
whether 18-to-20-year old individuals fell within the class of “the people”
that the Second Amendment covers.
97
Relying on precedent that aligned that
inquiry with the notion of the political community, it said that “[t]he first
task in determining who is a member of the ‘political community’ is to
determine at which point in time to base the analysis — in 1791 (the date the
Second Amendment was adopted) or 2023.”
98
The court recognized that
many aspects of Heller and Bruen required resorting to history and
definitions fixed in the Founding era.
99
Yet that court concluded that despite
the chronological inconsistency with other parts of Second Amendment
doctrine, “Heller and Bruen support adopting a modern understanding of the
definition of ‘the people.’”
100
Traditional Regulation. Traditionalism is fundamentally dynamic, not
fixed.
101
In traditionalist interpretation, constitutional meaning is not settled
at the point in time when the text is ratified, but can change and evolve as
practices do.
102
Thus, if not quite the opposite, this method is at least in
significant tension with the “dead, dead, dead” Constitution of originalism
that Justice Scalia lauded.
103
The form of originalism to which conservative
justices have claimed adherence locks in meaning at the time of
ratification.
104
That is, in fact, what theorists have described as one of the
bedrock principles of all families of originalism: the Fixation Thesis.
105
2023] TIME AND TRADITION 273
Traditionalism, on the other hand, is not tied to original meanings but to
evolving ones.
106
Bruen sometimes speaks in both registers, seeming to
suggest a fixed meaning at some points and at others to allow later traditions
to validate practices as constitutional.
107
Regulations that are part of our
tradition, it says, are permissible.
108
Thus, something more than fixed
original public meaning must be determining the scope of regulatory
authority today. But, as I have explored at length in another work, the
boundaries of that focus on tradition are ill-defined in the decision.
109
Who can own guns, what guns they can own, what they can use them for
— the Supreme Court has answered all of these questions through a modern
or evolving lens. Its decisions about the Second Amendment have failed to
settle on a single time period for discerning the meaning and application of
the right to bear arms. The next Part questions whether this is a problem.
II.
TEMPORAL STASIS OR A DYNAMIC DOCTRINE?
Lower courts reading Heller and Bruen have often seemed bewildered.
110
And the Supreme Court itself has acknowledged the sometimes-scattered
approach to historical timetables, as when it expressly declined to decide
whether 1791 or 1868 is the relevant benchmark to use for searching for
historical analogues to modern regulations.
111
But mostly, the Court has left
questions about varying times and traditions unmentioned, let alone justified.
It is easy enough to criticize this inconsistency, but what should the Court,
or lower courts, do? Some of the problems with creating a well-justified
doctrinal infrastructure to deal with time are common to other constitutional
rights contexts.
112
But some are unique to the Second Amendment. It is the
only amendment that protects a right to a thing, to chattel.
113
The nature of
274 FORDHAM URB. L.J. [Vol. LI
that thing changes over time, as nearly all material artifacts do. So it would
make no sense, for example, to say that only those weapons that existed at
the time of ratification are protected. In fact, Heller described such an
argument as borderline frivolous.
114
On top of that, Bruen’s history-and-
tradition test is also novel and unlike the method used for other constitutional
rights.
115
Those factors make answering novel methodological questions in
this context different.
This Essay cannot do more than gesture in the direction of possible
approaches. I focus here on two that could resolve certain of the problems
with the current haphazard method. One approach would be to minimize the
historical back and forth by focusing on the underlying rationale or theory
for protecting the right to arms. Another would be to embrace the inherent
dynamism and explain why the proper time periods differ.
A. A Fixed-Time Doctrine
One way to tie a more consistent temporal theme through the different
doctrinal questions would be to focus even more particularly on the purpose
of the Second Amendment right as a means of rationalizing the rest of the
doctrine. If self-defense truly is the core, then questions about weapon
protection, people protection, and a whole host more can be answered by
reference to that value directly, instead of mediated through questions asked
and answered at different temporal epochs. It would be inconsistent, for
instance, to look to common use today to understand weapon protection, but
turn to historical understandings of “the people” to flesh out people
protection. Of course, at the level of “self-defense,” the notion is too
capacious to answer concrete questions.
116
Perhaps the narrower historical
doctrine of self-defense can discipline claims because that doctrine focuses
on essential factors like imminence, necessity, and proportionality.
117
For example, consider a recent Ninth Circuit case about butterfly
knives.
118
If self-defense undergirds the right to keep and bear arms, then a
central question in cases about weapon restrictions should be the
effectiveness of the weapon for self-defense and the existence of adequate
of a particular chattel worked to propertize the Second Amendment by ‘thingifying’ the right
to keep and bear arms.”).
114. See District of Columbia v. Heller, 554 U.S. 570, 582 (2008).
115. See Charles, supra note 13, at 88 (discussing the use of means-end scrutiny in other
areas of constitutional law).
116. See J
OSEPH BLOCHER & DARRELL A. H. MILLER, THE POSITIVE SECOND AMENDMENT:
RIGHTS, REGULATION, AND THE FUTURE OF HELLER 152–54 (2018).
117. See Ruben, supra note 76, at 152–54 (detailing the limits).
118. See generally Teter v. Lopez, 76 F.4th 938 (9th Cir. 2023).
2023] TIME AND TRADITION 275
substitutes.
119
That might lessen the importance of questions tied to modern
statistics about the number of butterfly knives in Hawaii and the proportion
of their criminal misuse.
120
Instead, courts could ask about the scope of the
privilege of using deadly weapons in self-defense at the Founding and the
other options the law leaves open, and inquire into whether the restrictions
under review impermissibly curtail that self-defense interest. Similar
questions could be asked about prohibitions on weapon possession for
certain classes of people or in certain locations.
121
So too could the time period be uniform if anti-tyranny is the governing
rationale. Courts could ask questions about the ability of private individuals
to mount an effective resistance to government tyranny and seek to preserve
the balance created at the Founding.
122
The Court is not likely to change
course and vindicate this view, but the point is that even if it did, it could still
set a more uniform timeline by focusing on the nature and purpose of the
right.
B. Dynamic Second Amendment Rights
Embracing dynamism, on the other hand, would require courts to come
up with reasons for treating different questions at different time periods.
Why, for example, ask about common-use today when deciding what
weapons are protected? Why refer to the modern understanding of “the
people” instead of the one that governed when the Second Amendment was
ratified? Why, despite those modern questions, still require analogous
historical regulations in order to uphold contemporary laws? There might
be perfectly cogent answers to these questions. Perhaps questions about
weapon protection should be referred to modern generations because
276 FORDHAM URB. L.J. [Vol. LI
something about the original meaning of the Second Amendment commends
an “evolving-standards-of-utility” type test.
123
Perhaps rights expand with
time, but regulatory authority does not because that best serves the
prophylactic purpose of constitutional protection for guns.
124
But if there are
good reasons, they have not yet been forthcoming.
C
ONCLUSION
In nascent Second Amendment doctrine, timing is everything. When past
laws were enacted depends on whether modern ones are constitutional.
125
Like these questions of state authority, some issues in the doctrine are
entirely backward-looking. But many questions are not answered with a
fixed reference point in the past. The answers to some questions evolve as
practices do, like those about which weapons garner Second Amendment
protection.
126
Yet there seems to be no explanation for whether this existing
temporal diversity is good — or justified.
This Essay has canvassed possible ways to explain, justify, or redirect
doctrinal references to time. But one other answer suggests itself: perhaps
the unexplained time variation is just a way for judges to toggle the time
periods to reach their desired outcomes in each case. That explanation does
account for some otherwise strange divergences — like the focus on modern
consumer choices for weapon protection and simultaneous strict limitation
to the past for assessing new regulations. The flexibility of temporal toggling
allows judges to expand the right while keeping regulations at bay.
127
Justice
Scalia was fond of invoking the adage that appeals to some kinds of evidence
simply allow judges to look out over a crowd and pick their friends.
128
Historical evidence seems no different, and the Court’s inconsistent time
periods magnifies these concerns. Now, judges can survey the vast sweep
2023] TIME AND TRADITION 277
of American history and set down at whichever waystation they want. Only
by changing or explaining its doctrinal decisions about time can the Court
avoid the impression that this is the intended result.