Revisionist History? Responding to Gun Violence under Historical Limitations

By Ulrich, Michael R. | American Journal of Law & Medicine, May 2019 | Go to article overview

Revisionist History? Responding to Gun Violence under Historical Limitations


Ulrich, Michael R., American Journal of Law & Medicine


At oral argument for the foundational Second Amendment case District of Columbia v. Heller,1 Chief Justice John Roberts expressed skepticism at the standards of review, often referred to as the tiers of scrutiny, that developed over the last several decades. The Chief Justice stated, “Well, these various phrases under the different standards that are proposed…none of them appear in the Constitution.”2 Rather, he asked, “[i]sn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time…and determine… how this restriction and the scope of this right look in relation to those?”3 Here, Roberts is asking for a historical inquiry to determine what rights the Amendment protects. He is also asking for analogous laws, presumably in the Founding Era, that would provide guidance in upholding or striking down the law in question.4 It seems the Chief Justice thought this historical analysis might provide a more useful standard of review than “these standards that apply in the First Amendment [that] just kind of developed over the years as sort of baggage that the First Amendment picked up.”5

In the Heller majority opinion, written by Justice Scalia, this suggestion by Roberts was not explicitly adopted.6 Yet, the opinion makes clear that history played a central role in determining there was an individual right to keep and bear arms anchored in the preexisting right to self-defense.7 While there are criticisms of the opinion, both for its methodology and conclusions,8 it is precedent nonetheless. However, the lack of clarity provided by the majority opinion left many scholars and lower courts to wonder how to apply it to other regulations invoking Second Amendment protections.

After Heller and the subsequent case McDonald v. City of Chicago,9 which incorporated the Second Amendment protections against the states, the Supreme Court declined to hear any other Second Amendment case until the recent grant of certiorari for New York State Rifle & Pistol Association, Inc. v. City of New York.10 Justice Thomas has taken great displeasure with the repeated denials of certiorari, providing frequent dissents. In Justice Thomas's opinion, the Second Amendment is a “disfavored right in this Court.”11 He finds this particularly troubling considering lower courts' “general failure to afford the Second Amendment the respect due an enumerated constitutional right.”12

Interestingly, in one of his dissents Justice Thomas echoed Chief Justice Roberts's point from the Heller oral argument. Justice Thomas noted, “the Courts of Appeals generally evaluate Second Amendment claims under intermediate scrutiny. Several jurists disagree with this approach, suggesting that courts instead ask whether the challenged law complies with the text, history, and tradition of the Second Amendment.”13 Then, in a footnote, Justice Thomas confesses that “I, too, have questioned this Court's tiers-of-scrutiny jurisprudence.”14 In another dissent, Thomas expressed support for a Second Amendment challenge under the “relevant history …sources from England, the founding era, the antebellum period, and Reconstruction.”15 Importantly, Justice Gorsuch joined this dissent, providing evidence of his support of a historical approach to laws implicating the Second Amendment.16

These Justices may have a new addition to their team of those who doubt scrutiny-based review under the Second Amendment and believe in the power of historical inquiry. In Heller v. District of Columbia (“Heller II”),17 then Judge Kavanaugh, and now Justice Kavanaugh, argued that regulations infringing on Second Amendment rights must be evaluated under “Heller's history- and tradition-based test. …

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