Text, History, and Tradition. Really?
The other day I was reading Bruen, again. I was looking up that standard mantra, “When the plain text of the Second Amendment is implicated, the burden shifts to the state or prove a history and tradition of regulation.”
That is not what Bruen says.
—New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 8 (U.S. 2022)
The state must prove the regulation is consistent with this Nation’s historical tradition of firearm regulation.
Not “this nation’s history and tradition,” but “this Nation’s historical tradition.”
Those are two different things. I might be able to prove a tradition of disarming people as they enter the church. But if there is no historical regulation, that tradition is meaningless in support of a modern infringement.
In the same way, I might be able to show that there was a historical regulation that banned guns in schools. If it is not also a tradition, then it doesn’t meet muster.
Notice that it also says this Nation’s historical tradition of firearm regulation
. I don’t know how well it would work in court, but this seems to say that bans on other types of arms are not meaningful in a modern Second Amendment Challenge.
This appears to be a one-way ratchet. We can use the Second Amendment to protect all arms. The state can only use firearm regulations to justify their modern infringements.
So lock it in, When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. And, The state must prove that their modern infringement is consistent with this Nation’s historical tradition of firearm regulations.
Nothing from before this Nation counts. Nothing from a different nation counts. It must be part of this Nation’s historical tradition of firearm regulations.
supported by the historical tradition of prohibiting
—District of Columbia v. Heller, 467 U.S. 837, 627 (2008),
H/t to Mark Smith for pushing me to write about this.
