With President Trump’s nomination of Judge Amy Coney Barrett to take Justice Ruth Bader Ginsburg’s seat on the Supreme Court, it looks like Second Amendment jurisprudence is in for a major revamp. Will a post-Ginsburg Court protect AR-15s? Will open carry become the law of the land? It’s hard to say — but probably no, to both. What’s more likely is that the court could change the way it decides Second Amendment cases. And this change could make it easier for courts to strike down gun regulations as unconstitutional.
There is very little Supreme Court case law on the Second Amendment, because until 2008, the legal consensus was that it pertained to colonial-era militias. That changed with District of Columbia v. Heller, which invalidated Washington, D.C.’s ban on handguns and interpreted the Constitution as guaranteeing an individual right to bear arms.
In the process, the court left no instruction manual to lower courts on how to protect this newly acknowledged right. The late Justice Antonin Scalia’s Heller opinion clocks in at 64 pages, but nowhere in those pages does he say: “Here is the test you must use to figure out if a gun regulation violates the Second Amendment.”
In the absence of specific marching orders from the Supreme Court, lower courts have fashioned their own test through which to run Second Amendment challenges. For now, the courts consider a local government’s justifications for enacting a gun regulation — for instance, public safety concerns. Many gun rights advocates loathe this test. They think it gives the courts too much power to dilute the Second Amendment. For years, they have been pushing for a different kind of test, one that is entirely grounded in the history and tradition of gun laws.
This “text, history, and tradition” test calls on courts to ask only one question: Is there some kind of historical precedent for a current gun law? If the answer is yes, then the court should uphold the gun regulation as constitutional. If the answer is no, then the court must strike down the gun regulation. This could potentially invalidate even politically popular regulations like strict permit requirements for public carry and bans on high-capacity magazines. And you can see how it might get difficult very quickly: We don’t allow guns on airplanes, but there couldn’t have been an airplane gun-ban in the 18th century because there were no airplanes.
One of the first high-profile evocations of the history and tradition test came from Justice Brett Kavanaugh, Trump’s last appointee to the high court. When he was a judge for the D.C. Circuit, he wrote a dissent in a case on Washington’s ban on semiautomatic rifles, calling on courts to stop considering modern public safety concerns in their Second Amendment analyses. He wrote, “In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test.” Kavanaugh went on to conclude that, because laws have allowed civilians to own semiautomatic rifles since the early 20th century, they should be protected by the Second Amendment today.
Gun rights attorneys read then-Judge Kavanaugh’s dissent as a clarion call for cases that would give courts across the country the opportunity to cement history and tradition as the true test of the Second Amendment. They have offered up the history and tradition test in dozens of cases in lower courts. The history and tradition test also appeared in 10 of the 12 Second Amendment petitions that crossed the Supreme Court’s desk last term. The justices agreed to take only one of those cases, giving gun rights litigators the chance to present the history and tradition test during oral arguments.
Many pro-gun litigators think that they will have an easier time striking down gun restrictions if history and tradition were to become law, which is why they keep bringing this argument to the Supreme Court again and again. “Gun rights advocates clearly hope and expect that the history and tradition approach would expand the right to keep and bear arms. They think there’s some historical ideal where there’s immunity from gun regulation,” says Eric Ruben, a Second Amendment scholar at Southern Methodist University School of Law. In their thinking, if there’s no historical analogy for a current regulation on guns, then that regulation cannot stand.
There are two reasons the history and tradition test might not be the carte blanche that gun rights supporters are hoping for. First, Ruben says, “Gun rights and gun regulations have coexisted for centuries. Advocates tend to overlook just how many gun laws we have historically had as a country.” For instance, laws restricting weapons in public have their roots in medieval English statutes. In the 1850s, some cities and states required gun owners to register their firearms. One Delaware law from the late 18th century even banned firearms at elections. Given this history, Ruben believes that a proper application of the history and tradition approach “would result in upholding a lot of gun laws.”
Second, the history and tradition test is a judicial tool used by human beings who will bring their discretion to bear on the result. Even the name of the test raises more questions than it answers: “What history and what tradition [do] you look to?” asks Ruben. “And how old does a tradition have to be to be used to support or challenge a gun law? This is all unclear.”
The judges who are on the record supporting the history and tradition test would have struck down gun restrictions that have survived the current balancing test. Two such judges — Kavanaugh and Justice Clarence Thomas — currently sit on the Supreme Court. Amy Coney Barrett clerked for Scalia, and upon her nomination to the court, she publicly affirmed that “his judicial philosophy is mine, too.” Scalia, of course, penned Heller, an opinion that Barrett believes demands a historical approach to Second Amendment cases.
Barrett’s only writing on the right to bear arms is a dissent in a 2019 case, in which she argued that a blanket gun possession ban based on felony status alone violates the Constitution. Using the history and tradition test, she argued that lawmakers from the founding era were mostly concerned with keeping guns out of the hands of dangerous people, not people convicted of nonviolent felonies.
To remake Second Amendment jurisprudence, proponents of the history and tradition test would need to secure the votes of five Supreme Court justices. Justice Neil Gorsuch, a strong adherent of originalism, might very well sign on to the history and tradition test. Justice Samuel Alito has shown some receptivity to using history and tradition to define the boundaries of the Second Amendment right. “The big questions are with Alito and Chief Justice Roberts,” says Ruben. But, assuming that Alito goes along, the history and tradition contingent wouldn’t even need Roberts for a majority.
Meanwhile, litigants need only four justices to agree to take their case, and cases abound. Currently, there are petitions on issues like public carry permits and felon dispossession poised to go before the Supreme Court. With Barrett’s confirmation, the justices will have the votes to end the court’s decade of silence on the scope of the right to bear arms — and a 6-3 conservative majority is likely to reimagine the real-life application of the Second Amendment.