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

By Miller, Darrell A. H. | The Yale Law Journal, January 2013 | Go to article overview

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. …

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