ARTICLE CONTENTS INTRODUCTION I. HELLER'S RIDDLE A. The High Court Challenge B. The Lower Court Response II. THE SEVENTH AMENDMENT TEXT, HISTORY, AND TEST A. Seventh Amendment History, the Historical Test, and Some Initial Questions 1. Whose History? 2. How Much History? 3. What About Conflicting or Indeterminate History? B. The Seventh Amendment Historical Test Restated: Boundary Setting and Tailoring III. A SECOND AMENDMENT HISTORICAL TEST: THE SEVENTH AMENDMENT'S (PARTIAL) ANSWER TO HELLER'S RIDDLE A. Borrowing from the Seventh Amendment for the Second: A Justification in Four Parts 1. The Textual Necessity for Second Amendment Construction and Holistic Justifications for Borrowing from the Seventh Amendment 2. Constitutional Construction and the Second and Seventh Amendments as Preconstitutional, Preexisting Rights 3. History, Common Law, and Reasoning by Analogy in Constitutional Construction 4. A Word on Good Faith Borrowing B. A Historical Test for the Second Amendment: Some Familiar Questions 1. Whose History? 2. How Much History? 3. What About Conflicting or Indeterminate History? C. A Second Amendment Historical Test: Boundary Setting and Tailoring 1. Boundary Setting 2. Tailoring 3. The Test in Action: High Capacity Magazines IV. REWARDS AND RISKS OF A HISTORICAL TEST FOR THE SECOND AMENDMENT A. Rewards 1. Reducing Judicial Empiricism 2. Reducing the Potential of Categorical Creep 3. Acknowledging the Institutional Aspects of the Right To Keep and Bear Arms B. Risks 1. The Reek of Law-Office History 2. The Persistence of the Collapse Problem 3. Popular, but Not Constitutionally Popular CONCLUSION
In District of Columbia v. Heller, (1) and its sequel, McDonald v. City of Chicago, (2) the Court posed a riddle. The riddle can be restated like this:
What test adheres to the Second Amendment's past, rejects balancing that right against present government interests, and preserves all but the most draconian regulations for the future?
The Court's nascent Second Amendment jurisprudence is a riddle because while the Court demands the most scrupulous investigation of history and a near-blanket prohibition on balancing, it also states that a number of modern regulations are "presumptively lawful" (3) despite their dubious historical provenance or their interest-balancing origins.
The Court's challenge has left many judges frustrated because, as discussed in more detail below, the Court's demands appear to be facially irreconcilable. Some judges have answered by mechanically citing broad dicta in Heller and McDonald concerning these "presumptively lawful" regulations, (4) rather than conducting the historical inquiry the Court ostensibly demands. Other judges have simply ignored the Court's rejection of balancing tests. Instead, they have allowed the right to keep and bear arms to be gobbled up by intermediate scrutiny or similar tests that weigh serious, important, or compelling government interests against Second Amendment commands. (5)
This Article argues that these lower court efforts to fashion a test simply cannot be squared with the Court's insistence on historical fidelity, its rejection of balancing, and the preservation of most reasonable firearm regulations. It assumes that the Court is serious when it instructs lower courts to avoid tests that call for any balancing at all, even if that means, as some lower court judges have said, eliminating the traditional levels-of-scrutiny analysis in Second
Amendment cases. (6) It suggests that one way of reexamining the riddle is to refer to the Seventh Amendment right to trial by jury, one of the …