Text, History, and Tradition: What the Seventh Amendment Can Teach Us about the Second

Miller, Darrell A. H., The Yale Law Journal

III. A SECOND AMENDMENT HISTORICAL TEST: THE SEVENTH AMENDMENT'S (PARTIAL) ANSWER TO HELLER'S RIDDLE

With its Seventh Amendment jurisprudence, the Court has drafted a schematic, if not quite a blueprint, for how to construct a historical test. This schematic shows that a historical test can address some familiar problems of constitutional implementation, problems that have been resolved by other doctrinal tests in other areas. In particular, the Seventh Amendment historical test provides a structure for deciding (1) which activities or prohibitions fall within the scope of the constitutional guarantee; (2) which activities or prohibitions transgress that constitutional guarantee; and (3) what kinds of proof or arguments may be deployed in evaluating both (2) and (2). Furthermore, it does so in a way that minimizes (though it can never completely eliminate) recourse to judicial evaluations of government interests, including those that appear in the traditional tiers-of-scrutiny formulation.

Applying a history-centered methodology shaped by the Seventh Amendment, however, requires an additional layer of justification. The Seventh Amendment uses the terms "preserve" and "common law"; the Second Amendment does not. Critics of this Article will say that I expect a doctrinal tail to wag a textual dog; they will insist that doctrine should sprout organically from the constitutional provision itself, rather than be transplanted from some far-off corner of the Bill of Rights. While that criticism may ring true for those who subscribe to a clause-bound approach to constitutional interpretation, as I explain below, more holistic methodologies support the approach discussed here. (249) Borrowing is a common feature of constitutional construction, as Nelson Tebbe and Robert Tsai have recently explored. (250) As these authors note, judges borrow a range of material, including text, frameworks, doctrine, rationales, and principles, from both within and without the Constitution. (251) Borrowing can be driven by the text, context, and history of a particular constitutional provision, (252) by prudential concerns about stability and predictability in the law, (253) by the incremental nature of common law reasoning itself, (254) and often by all three. (255)

This Part aims to justify why anyone should borrow from the Seventh Amendment to resolve problems with the Second. I reiterate, however, that the necessity of borrowing a historical test--indeed the need to adopt any historical test, borrowed or not-flows from some contestable postulates: First, that the Court's rhetorical commitments in Heller and McDonald reflect genuine methodological convictions, as opposed to transient judicial politics; second, that the Court expects the lower courts to produce and apply a test that satisfies these rhetorical commitments; and third, that the various flavors of scrutiny (intermediate, intermediate-intermediate, strict, semi-strict, rational basis with bite, etc.) are unpalatable to the majorities that decided both Heller and McDonald. (256)

The postulates having been restated, Section III.A briefly summarizes the reasons for borrowing and explains why the Seventh Amendment historical test is suitable for borrowing. Section III.B will demonstrate how the Second Amendment right to keep and bear arms raises the same questions about the use of history that have challenged the Court in Seventh Amendment cases. In particular, Section III.B will showcase how the Court's Heller and McDonald decisions raise familiar questions of whose history counts for Second Amendment construction, how much history counts, and what a court must do about conflicting and indeterminate history. Section III.C will then explain how a Second Amendment historical test, patterned from the Seventh, can supply the familiar boundary-setting and tailoring functions normally provided by tiers-of-scrutiny or mixed-category-and-tiers-of-scrutiny approaches. Section III.C ends by demonstrating how a historical test for the Second Amendment might operate in practice.

A. Borrowing from the Seventh Amendment for the Second: A Justification in Four Parts

Courts often borrow from other areas of constitutional law to interpret text and to create decision rules. (257) Justice Scalia borrowed liberally from First Amendment doctrine in Heller to support the personal and preconstitutional nature of the Second Amendment and to urge a categorical approach to its limitations. (258) But once we move beyond the proposition that the Second Amendment, like the First, contemplates categories, we are set adrift. The flexible levels-of-scrutiny analysis that encumbers the First Amendment is "baggage" (259) the Heller majority seems eager to shed when it comes to the Second Amendment. (260) The question, then, is what sources courts may use to implement the Second Amendment once we accept the notion that it is to be implemented primarily through categories rather than balancing. The Seventh Amendment historical test provides some guidance.

First, the Seventh Amendment offers intratextual clues as to what it means to "not infringe" or to "preserve" rights when those rights are understood to come from some prior, extratextual source. Second, even if one rejected the usefulness of understanding the word "infringe" by reference to the word "preserve," the Court insists that the Second Amendment simply reflects a preconstitutional right whose scope is determined by extratextual historical sources. It makes sense, then, for the Court to borrow doctrine that it has used to implement another right that shares the same features. Third, Seventh Amendment jurisprudence, for the most part, rejects balancing tests and forces the Court to depend primarily on analogical reasoning from history and common law in order to determine its applicability and scope. As such, the Court's implementation of the Seventh Amendment through analogical reasoning supplies a set of framing devices that may be transplanted to the Second Amendment. Finally, borrowing from the Seventh Amendment to develop a historical test is apolitical, in the sense that a historical test does not lead to predetermined outcomes. Borrowing could reinforce the argument that history-centered doctrinal tests are largely neutral and trans-substantive, rather than rationalizations for conservative policy preferences. (261)

1. The Textual Necessity for Second Amendment Construction and Holistic Justifications for Borrowing from the Seventh Amendment

The Second Amendment does not mean what it says. (262) We know this because applying the strict lexical meaning of the Second Amendment words

"keep," bear, and "arm" would be cataclysmic. "Keep" means "have." (263) "Bear" means "carry." (264) "Arm" means "weapon." (265) A man strolling along Pennsylvania Avenue with a tactical nuclear warhead under his arm satisfies the dictionary sense of all these words. (266)

Constitutional construction (267) is necessary when the meaning of the text "runs out." (268) With the Second Amendment, however, the problem is not that the text has run out; (269) it is that a literal reading of the text leads to absurd results. (270) Consequently, these quotidian terms, "keep," "bear," "arm," are bracketed by two other terms: "right" and "infringed." These two words transform plain meaning into idiomatic meaning. (271) And idiomatic meanings require construction.

Holistic legal reasoning from the Seventh Amendment provides some clues as to how to construe this phrase. Reading the constitutional text as a whole allows interpretations of one section of text to shed light on the meaning of others. (272) The Court's Heller and McDonald opinions are saturated with such "intratextual" reasoning. (273) As just one example, Justice Scalia observed that the right of the "people" to assemble and the right of the "people" to keep and bear arms must be interpreted identically to allow for individual rather than solely collective rights. (274) Although the Seventh Amendment uses the terms "preserved" and "common law," which do not appear in the Second Amendment, (275) the textual implications can be overdrawn. As a matter of holistic legal reasoning, the Court's construction of the term "preserved" can help us understand how it could construe the word "infringed" in the Second Amendment.

The Heller Court said that "[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them." (276) Whatever the truth of this assertion with respect to other constitutional rights, this language signals that the Heller majority understands the scope of the right to keep and bear arms to be fixed at some definitive period of adoption, and that fixation insulates it from legislative, executive, or judicial alteration. (277) Moreover, the scope of the right does not appear on the face of the text itself: arm, bear, and keep have the same meanings now as they did in 1791, but "longstanding" regulations are "presumptively" constitutional. (278) The sources used to define the scope of the right, and the nature of an infringement, must be extratextual and roughly contemporaneous with the relevant dates of ratification or, as I will discuss below, incorporation.

This is where the idea of "preservation" in the Seventh Amendment helps. What does it mean to "infringe" a "right," given that both the right and its scope are fixed by some extraconstitutional sources in the past? "Infringe," according to eighteenth-century lexicographers, means "to violate; to break laws or contracts" or "to destroy; to hinder." (279) By comparison, the civil jury right must be "preserved." "Preserve," as defined in the eighteenth century, means "[t]o save, to defend from destruction or any evil, to keep." (280)

Taking these sources at face value and examining them intratextually, "preserve[]" (281) connotes restraints on government activity at least equivalent to those implied by "not infringe[]." (282) That is, as a matter of raw text, government regulations that result in departures from the jury-trial right as understood by Englishmen in 1791 are an infringement because they cannot be said to preserve, save, or keep the right as it existed in 1791. (283) And, at least according to classical logic, if all infringements are failures to preserve, then if something has been preserved, it has not been infringed. (284)

But the Court has had little trouble dispensing with ancient forms of common law practice, (285) expanding coverage of the right to novel types of actions, (286) or condoning numerous procedural innovations (287) when construing the Seventh Amendment's text. And yet, despite these departures, the Court maintains that the Seventh Amendment right to a civil jury has been "preserved." It is possible that this method of implementing the Seventh Amendment is wrong. (288) But let us assume that the requirement to "preserve" the jury-trial right permits some latitude for common law development and legislative innovation, so long as the fundamentals are kept intact. Afortiori, then, modern deviations from eighteenth-century practice in the Second Amendment context cannot be said to "infringe" upon the right, if such modern deviations from eighteenth-century practice in the Seventh Amendment context "preserve" that right. If preserving the fundamentals of the jury-trial right is all that is required to remain faithful to the Seventh Amendment constitutional text, then any regulation that does not affect the fundamentals of the right to keep and bear arms cannot be said to infringe upon the Second. (289) Thus, by examining dictionary definitions of a key term,

"preserved" in the Seventh Amendment, and recognizing how that term has been construed through time, we get a better sense of what the term "infringed" may mean in the Second Amendment.

2. Constitutional Construction and the Second and Seventh Amendments as Preconstitutional, Preexisting Rights

Skeptics of holistic legal reasoning may argue that interpreting "infringe" in light of "preserve" is "too clever by half." (290) The Seventh Amendment textual command to "preserve" drives the historical test, not the other way around. But even skeptics must admit that a majority of the Court has apparently dedicated itself to a construction of the Second Amendment that replicates methodologically the focus on history that the Seventh Amendment demands textually.

First, as I have stated previously, not one member of the Court has suggested the meaning of the words "keep," "bear," or "arm" is exhausted by consulting Dr. Johnson's Dictionary. Some construction is required. The Court has stated more than once that the right to keep and bear arms is, in some yet undefined sense, a product of preconstitutional history, rather than an eighteenth-century textual invention. (291) The clues, according to the Court, are in the text itself." "The very text of the Second Amendment implicitly recognizes the pre-existence of the right [to keep and bear arms] and declares only that it 'shall not be infringed.'" (292) Therefore, according to the Court, the Second Amendment does not create the right to keep and bear arms; it merely recognizes, through the word "infringe," a right that the Framers believed they possessed as free Englishmen. (293)

The Court has construed the Seventh Amendment in much the same way. One of the defenses of borrowing is the notion that it "foster[s] a sense of fairness ... a perception that comparable cases are being treated comparably, even though they may fall into different doctrinal categories." (294) As the Court has said, the Seventh Amendment does not create a trial by jury at common law, but simply acknowledges a preexisting right of Englishmen. (295) Therefore, even putting aside holistic legal reasoning, since the Court indicates that both Amendments share the same features--both are considered preconstitutional, and the scope of each is determined in large part by common law history--an investigation into the Seventh Amendment's implementation through a historical test can be illuminating.

Furthermore, in areas of constitutional law far more open-textured than the Second Amendment, the Court has appealed to history to give the text meaning. For example, the Court's originalists consider the rights the Fourth Amendment protects to be preconstitutional. (296) Hence, in Fourth Amendment jurisprudence, Justice Scalia looks to common law practice in 1791 to determine when a "search" or "seizure" is "unreasonable." (297) Justice Scalia recently observed that a "search" for purposes of the Fourth Amendment must at the very least mean a physical invasion that would have constituted a trespass in 1791. (298) Similarly, originalists have looked to 1791 practice to determine what is meant by the Eighth Amendment's prohibition on "cruel" or "unusual" punishment. (299) And the Court has construed the Eleventh Amendment to acknowledge a common law tradition of sovereign immunity that the text itself does not disclose. (300)

The Court's process of borrowing doctrine from other areas of constitutional law is well documented. Given that the Second Amendment is still largely unknown territory, the Court may wish to seize the opportunity to select vehicles that have not been "spoilt" by non-originalist precedent, (301) or that are laden with less "baggage." (302) Using lessons from the Seventh Amendment's analytical framework to answer Second Amendment questions fits within the Court's current project of constitutional construction grounded in historical methods.

3. History, Common Law, and Reasoning by Analogy in Constitutional Construction

The Seventh Amendment has forced the Court to address second-order questions about the use of analogical reasoning itself. Of course, analogical reasoning is not unique to the Seventh Amendment. What is unique is that the Seventh Amendment's text drives the Court to look for historical analogues in a fashion that it can avoid when construing other constitutional provisions. (303) The Amendment says "preserve" and "rules of the common law," and the Court must remain faithful to the literal meaning of those terms. But it cannot consign the republic to the absurdity of a federal judiciary operating exactly as it did in 1791, wigs and all. The Seventh Amendment text tends to cut off other avenues of construction except analogical reasoning. Something is constitutional now--the Seventh Amendment right is "preserved"--because something similar to it existed in 1791.

Second Amendment originalism, at least as it has been articulated thus far, puts the Court in the same box methodologically that the Seventh Amendment does textually. According to the Court, the Second Amendment is the textual expression of a preexisting natural right the Founding generation understood. But a right to what? As stated previously, few people seriously argue that the right extends to tactical nuclear weapons, no matter what the dictionary says. Also, few people believe that the Second Amendment only guarantees a right to a flintlock. But the fact that Justice Scalia can only say the latter argument "border[s] on the frivolous" (304) betrays an anxiety that needles all champions of originalism. Specifically, what criterion, other than the judge's own taste or will, justifies his conclusion that x is "bearing" or "keeping" or an "arm" because something like it existed in 1791?

A full explanation of the role of analogical reasoning in general, and among originalists in particular, is beyond the scope of this particular Article. However, the Court's development of a historical test for the Seventh Amendment provides some guidance. (305) First, a historical investigation is required. Second, the litigants must produce a sufficient data set of historical practices or meanings in order to accurately construe what the text demands. Third, the Court must acknowledge when consensus about textual meaning or historical practice forms a baseline for a constitutional norm, if such a consensus is forthcoming. (306) Fourth, as Professor Lee Strang has written, "[W]here the Constitution's original meaning is under- or indeterminate," legislative judgments are owed some special deference. (307) This deference is especially justified when the Constitution itself contemplates that the political branches will help shape a constitutional norm or institution. (308) Fifth, the norm that is abstracted from this analogical process (309) must be tested to ensure that it does not eliminate the reason for the constitutional provision itself (310) and to check that it does not "generate disturbing or even calamitous results." (311)

However the Court engages with the analogical abstraction issue in the Second Amendment, it has already done so in the Seventh Amendment. As such, the Seventh Amendment historical test offers "a general repertoire of doctrinal moves" (312) that is "sufficiently developed" (313) to be useful. Further, these moves, while contested in their outcomes, enjoy support from Justices representing a range of ideological inclinations. (314)

4. A Word on Good Faith Borrowing

Finally, one objection to using the Seventh Amendment as a model for the Second is that such borrowing is solely "instrumental" (315) or is otherwise pursued in bad faith. (316) At its most mild, the argument would be that the Seventh Amendment's text and structure offer slim support for appropriation of its doctrinal apparatus to implement a fundamental right, such as the right to keep and bear arms, and thus such borrowing is badly misguided. At its most biting, the argument would be that this exercise is simply a way of getting at a preconceived end.

As for the first, milder criticism, I have already stated that the Seventh Amendment's appeal lies in its schematic for how to construct a historical test that can accomplish the practical task of turning constitutional script into rules of decision. The Second Amendment text is insufficiently precise to work as law, and the lower courts need guidance. Furthermore, they need guidance in a way that respects the categorical and historical approach of the Heller and McDonald majorities, but that is cognizant that twenty-first-century society is far different than eighteenth. In this limited sense, a decision to borrow from the Seventh Amendment can be instrumental. But so can a decision not to borrow. (317) Conservative stalwarts have spent the last half-century urging the Court to be more respectful of text and history in construing constitutional provisions and have vetted potential judges and Justices specifically for their fidelity to that program. One would have to ask why, when the opportunity arises to rely upon a well-developed corpus of frameworks, arguments, and doctrine that advances that very program, they should opt for some other, more malleable test, drawn from some other area of law.

As to the second, more cutting criticism, a historical test built upon the example of the Seventh Amendment does not necessarily lead to predictable pro-gun or pro-regulation positions. (318) Depending on how the Court describes the relevant analogy, a right to keep and bear arms in a house, for example, could be broad or narrow. (319) One of the appeals of borrowing from the Seventh

Amendment historical test is that constitutional borrowing "is agnostic to political ideology." (320)

Finally, there are better and worse arguments about what the text and context of the Second Amendment might mean, as well as the consequences that flow from such meaning. But the historical test proposed in this Article is concerned primarily with articulating a workable framework within the parameters the Court itself has set. These parameters are simply stated: Be faithful to history; don't balance; preserve as much regulation as possible. This Article assumes that the Court is serious about these conditions, and that it expects a test that complies with all three to percolate up from the lower courts. That a test can be bent or twisted to reach a predetermined outcome is not a problem unique to historically defined ones. And, if anything, to bend a historical test may require more mental exertion than to twist a more malleable intermediate scrutiny or undue burden analysis. (321)

B. A Historical Test for the Second Amendment: Some Familiar Questions

The Second Amendment right to keep and bear arms could be implemented through a historical test based on historical materials and common law reasoning and sources, just as the Seventh Amendment right has been. This approach would comply with the Court's stated desire to avoid balancing and yet be flexible enough to address twenty-first-century concerns. However, the Court's focus on defining the Second Amendment by history triggers a number of problems similar to those posed by the Seventh Amendment historical test. First, there is the problem of whose history. Second, there is the problem of how much history. And third, there is the problem of conflicting or indeterminate history. As I explain in this Section, those problems are still being worked out and are not completely resolvable. Nevertheless, the Court's efforts to work through those problems in Seventh Amendment cases offer some useful guidance.

1. Whose History?

Whose history counts for the purpose of the Second Amendment historical test? The Seventh Amendment jury-trial right is at least textually helpful. It says "common law" and "preserved." (322) The courts agree, due in part to variations in colonial practice, that English common law history is the touchstone. The Second Amendment text is not as clear. It says the right to keep and bear arms shall not be "infringed." (323) Nevertheless, both Justice Scalia and Justice Alito have reiterated that the history that counts for purposes of the right comes from both English and American traditions.

English history clearly counts for purposes of Second Amendment construction. Heller and McDonald both construed the right to keep and bear arms for self-defense as a preexisting right, one that the Constitution codifies but does not create. (324) As Justice Scalia insisted, the Second Amendment "was not intended to lay down a 'novel principl[e]' but rather codified a right 'inherited from our English ancestors'" (325): "By the time of the founding the right to have arms had become fundamental for English subjects." (326) The Court in both Heller and McDonald referred to English sources to determine what precisely is the substance of the right that must not be "infringed." The Court cited, among other sources, (327) Blackstone's Commentaries, (328) Hawkins's Treatise on the Pleas of the Crown, (329) and the seventeenth-century English Bill of Rights (330)--which Heller identified as "the predecessor to our Second

Amendment." (331) According to the Court, English history must inform how the Second Amendment right is to be construed. (332)

But American history counts as well. Justice Alito in McDonald concluded that the right to keep and bear arms applies to the states through the Fourteenth Amendment because it is "fundamental to our scheme of ordered liberty" (333)--it is a right "deeply rooted in this Nation's history and tradition." (334) Heller cited "Postratification Commentary" by the likes of St. George Tucker (335) and Joseph Story, (336) "Pre-Civil War Case Law" (337) (including from states that did not exist in 1791), (338) "Post-Civil War Legislation" (339) and "Post-Civil War Commentators," (340) in support of its construction of the Second Amendment as protecting an individual right. McDonald cited legislation and cases and other materials from the Reconstruction period. As one lower court has stated, "[W]hen state- or local-government action is challenged, the focus of the original-meaning inquiry is carried forward in time; the Second Amendment's scope as a limitation on the States depends on how the right was understood when the Fourteenth Amendment was ratified [in 1868]." (341)

Consequently, the history that matters for Second Amendment purposes appears to be not just English history, as it is in the Seventh Amendment, but rather a particular Anglo-American mix of history.

2. How Much History?

Although Anglo-American history is relevant to the construction of the Second Amendment, that still leaves the question: How much history? As with the Seventh Amendment, this raises two issues. The first is temporal: The Second Amendment concerns history over what period of time? The second, more substantive question, mirrors that posed by the Seventh Amendment: How much of that history is now constitutional law? In particular, how much of the Anglo-American common law of self-defense, or tort, or criminal law, did the Second Amendment put beyond the powers of legislatures, executives, and courts, and, conversely, how much was left to these institutions?

As to the first question, the Court in Heller and McDonald did not feel confined to the history of the right to keep and bear arms in 1791, but drew upon sources dating as late as a century later. The historical sweep of the Second Amendment's construction clusters, very roughly, around three eras: English and preconstitutional American history, American antebellum history, and Reconstruction and its close contemporaries.

The second question-how much of that history is now constitutional law--is far more difficult to answer. Heller and McDonald both describe self-defense as the "central component" of the Second Amendment right. (342) They also both declare that the right to have firearms for "the core lawful purpose of self defense" (343) is a right "deeply rooted in this Nation's history and tradition." (344) But neither Heller nor McDonald explains how deep those roots penetrate. It is apparent that the common law right to self-defense is constitutionalized to some degree. (345) But how much? Is all of self-defense common law as it existed in 1791, or 1868, or somewhere in between now constitutional law? (346) The McDonald Court cited Blackstone for the proposition that if one kills an attacker, "the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame." (347) If the Second Amendment merely reflects a preexisting right inherited from the English, is Blackstone's commentary now part of that right? Just the part about acquittal? What do we do with the fact that in 1791 there was a common law right to resist an illegal arrest with force? (348) Is that now part of the Second Amendment? At common law, private or quasi-private parties could enforce criminal law, for example, through the "hue and cry" and the posse comitatus. (349) These types of collective arms bearing for self-defense stretched over three hundred years of Anglo-American history. Are they now constitutional rights? (350)

Common law customs have been "constitutionalized" in other areas. (351) But there has not been a coherent system to decide what common law is constitutional law and what is not. Further, the history of the Court's constitutionalization of the common law is a decidedly mixed bag. (352) The Court has, in the past, constitutionalized the common law defense of truth to an allegation of libel, (353) common law liberty-of-contract values to an allegation of

(347.) See McDonald, 130 S. Ct. at 3036 n.15 (citing 4 BLACKSTONE, supra note 100, at "182).

(348.) See Miller, Retail Rebellion, supra note 341, at 945-59 (discussing the Second Amendment's effect on the right to resist arrest).

(349.) See LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 29 (1993) (noting the hazy distinction in colonial America between public and private law enforcement and between mob violence and common law tradition); cf. Rehberg v. Paulk, 132 S. Ct. 1497, 1503 (2012) (observing that in 1871 "it was common for criminal cases to be prosecuted by private parties").

(350.) For more on the problems associated with the constitutionalization of self-defense law, see Alan Brownstein, The Constitutionalization of Self-Defense in Tort and Criminal Law, Grammatically Correct Originalism, and …

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Publication information: Article title: Text, History, and Tradition: What the Seventh Amendment Can Teach Us about the Second. Contributors: Miller, Darrell A. H. - Author. Journal title: The Yale Law Journal. Volume: 122. Issue: 4 Publication date: January 2013. Page number: 893+. © 2009 Yale University, School of Law. COPYRIGHT 2013 Gale Group.

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