History in Constitutional Advocacy

The last term of the United States Supreme Court was one of the most eventful in recent history. But besides the particular holdings of the Court, what may be even more significant is the Court’s embrace of history as a prime method of interpreting Constitutional Law. Matthew Hebebrand, Assistant Editor of the Your Witness blog, explains what the development may mean for the future of constitutional advocacy.

Mr. Hebebrand … your witness

History has always been an important part of the Supreme Court’s interpretive work. In the Court’s just concluded term, in nearly every case involving a constitutional issue, the Court at least touched upon the historical understanding of the constitutional provision. The use of history in constitutional analysis is not necessarily a “Democrat/Republican” or “liberal/conservative” issue. In fact, history has shown to be a valuable authority for constitutional issues and has been recognized and advocated for by proponents across the ideological spectrum.[1] All lawyers are taught to apply the law to the facts of any particular case, but not many are accustomed to engaging in a sort of reverse application – applying historical facts to argue law. In a term full of important decisions, two cases in particular deserve close attention for their use of historical analysis.

First, in New York State Rifle & Pistol Assn., Inc. v. Bruen,[2] the Court clarified the framework for reviewing challenges to state action under the Second Amendment to the U.S. Constitution. Previously, in District of Columbia v. Heller,[3] the Court held that the Second Amendment to the U.S. Constitution protected a right to possess a handgun in the home for self-defense, and in McDonald v. Chicago,[4] the Court held that the Fourteenth Amendment to the U.S. Constitution guaranteed the same right against infringement by the States. Subsequent to those decisions, the federal Courts of Appeals had created a multi-step framework to analyze challenges under the Second Amendment. First, the court would determine whether or not the challenged activity was within or without the scope of the right as originally understood.[5] If the challenged activity was outside the scope of the right, it was categorically unprotected. If it was within the right or whether a historical approach to the right was inconclusive, the courts would analyze “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.”[6] If a “core” Second Amendment right was involved, the courts would proceed to analyze the law under strict scrutiny; otherwise the courts would proceed to analyze the law under intermediate scrutiny.[7]

The Court rejected this framework as a misconstruction of its analyses in Heller and McDonald, which it described as “a test rooted in the Second Amendment’s text, as informed by history.”[8] The Court held that when a firearms regulation is challenged on Second Amendment grounds, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”[9] Moreover, the Court emphasized that any “interest-balancing inquiry” such as strict or means-end scrutiny was expressly rejected in Heller and McDonald.[10] In other words, once the government met its burden of proof that the firearms regulation is part of the historical tradition of regulations outside the bounds of the Second Amendment right, the regulation is constitutional. Otherwise, the regulation is unconstitutional. That is the entire analysis. There is no intermediate or strict scrutiny to follow.

This may strike many students of the law and of the Court as odd, as it certainly did for the dissenting Justices.[11] Much of our constitutional law is taught under the framework of “interest-balancing inquiries;” in other words, balancing the interest of the government to regulate on behalf of the public good against the interests the individual in a protected right. All law students are familiar with this and are conditioned to think of constitutional challenges based upon the various levels of scrutiny they are taught in their constitutional law courses. The Court in Bruen establishes a different method of constitutional analysis, one that would have been much more familiar to the Founding generation. The Founders, after all, were inheritors of a British system of constitutional law that was rooted in history, precedent, and analogy.[12] Each of the Court’s proposals for engaging in the historical analysis established in Bruen is consistent with the Framers’ understanding of constitutional analysis but applied to the text of our written Constitution.[13]

First, the Court directed that a “straightforward historical inquiry” be conducted.[14] This inquiry looks for direct comparisons from the past. What is the problem the government seeks to address, did that problem exist at the time the Second or Fourteen Amendments were adopted, and was there a distinctly similar historical regulation addressing the problem? If, historically, both the problem and the regulation existed without constitutional challenge, that shows evidence of constitutionality.

When there are no direct comparisons, one must address the constitutional challenge by analogy. Lawyers are specifically trained in this art, though they may be more used to analogizing cases. Analogizing history is similar: taking the facts of a prior case and emphasizing its similarities or downplaying its differences. One significant difference is the weight of different precedents. Lawyers are trained to value judicial precedents over others, and more recent precedents from courts with superior authority are valued most. In the historical context, this is flipped with an important caveat: the oldest examples have the most authority so long as there is continuity in practice between that older period of time and the applicable time period to which one compares.[15] When it comes to constitutional interpretation, the applicable comparative time period is that of the adoption of the Constitution or one of its Amendments. Applicable laws and practices before and after that time period are relevant, but they are judged against the time period of the adoption of the particular constitutional provision at issue. So, if a historical practice has a long pedigree in either or both British and colonial practice, but was no longer in use at the time of the adoption of the relevant constitutional provision, it would lose its precedential value. Likewise, if a modern practice has a long pedigree but began too late in time after the adoption of the relevant constitutional provisions, it too would lose its precedential value.

Further, the Court in Bruen noted that “open, widespread, and unchallenged” practices since the adoption of the Constitution or one of its Amendments should guide one’s interpretation, but only in the case of ambiguous constitutional provisions.[16] Even if an open, widespread, and previously unchallenged practice clearly contradicts the text of the Constitution, the text controls.[17] After all, the whole purpose of adopting a written constitution was to set a permanent framework that would not be as liable to change through later practice.

In its analysis of history in Bruen, the Court exemplified this approach. As the burden was now established to rest on the State to prove that the firearms regulation was historically constitutional, the State of New York offered examples from between the late thirteenth and early twentieth centuries to justify its firearms regulations, which granted discretion to state officials in determining “proper cause” for an application for a concealed carry license. Most prominent in New York’s historical argument was the 1328 Statute of Northampton. It provided that, with some exceptions, Englishmen could not “come before the King’s Justices, or other of the King’s Ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere, upon pain to forfeit their Armour to the King, and their Bodies to Prison at the King’s pleasure.”[18]

In a traditional historical analysis, if this statute had been consistently upheld both in England and in the American colonies through the adoption of the Second and Fourteenth Amendments, it would surely have been evidence that “going or riding armed” was not within the constitutional protection of the Second Amendment. There were several problems with applying this statute to the Second Amendment context, however. One is the difficulty of improper analogy. The Court interpreted this statute to apply to armor and, perhaps, lances.[19] And, as the Court would further discuss, the Statute included a malice requirement.[20] Thus, it was an inappropriate analogy to apply to the New York statute. Second, it was not consistently applied through the adoption of the Second and Fourteenth Amendments. In fact, the Court noted that by 1686, the Statute of Northampton had been declared obsolete by disuse.[21] And in 1689, the English Bill of Rights was passed, which included a Second Amendment analogue, guaranteeing all Protestants the right to “have Arms for their Defence suitable to their Conditions, and as allowed by Law.”[22]

New York also pointed to several colonial analogues to the Statue of Northampton but, as the Court explained, all of these similarly included an element of malice and were, consequently, not analogous to New York’s firearms licensing scheme.[23] The post-ratification common law offenses cited by New York were similarly found by the Court not to be analogous for the same reasons.[24] And post-ratification prohibitions of carrying concealed weapons and requirements for the posting of bond before publically carrying were not appropriate analogies for New York’s licensing scheme.[25]

The Court did identify some firearms regulations that supported New York’s “proper cause” requirement for carrying a firearm: a Texas statute from 1871, a Kansas statute from 1881, a West Virginia statute from 1887, and various territorial statutes from the late nineteenth century. Nevertheless, all together these few statutes could not support a “broad tradition” of prohibiting the carrying in public of firearms commonly used for personal defense.[26] Therefore, New York failed to meet its burden and its “proper cause” requirement for carrying a firearm violated the Fourteenth Amendment.

The Court effectively engaged in a similar historical analysis in Dobbs v. Jackson Women’s Health Organization.[27] In that case, the Court was invited to reconsider its opinions in Roe. v. Wade[28] and Planned Parenthood v. Casey,[29] which guaranteed and reaffirmed, respectively, the constitutional right to an abortion. Predicating its analysis of stare decisis, the Court began with a review of the standard for determining rights under the Fourteenth Amendment. The Court stated that the appropriate standard for making this determination is the one articulated in Washington v. Glucksberg,[30] that the right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”[31]

The Glucksberg analysis demands historical inquiry, though of a more straightforward type than that undertaken in Bruen. In Dobbs, the Court began with an analysis of the common law’s treatment of abortion.[32] The Court determined that since the thirteenth century, abortion was treated as homicide.[33] The Court parsed the relevance of quickening to the common law criminal offense of abortion and the degree of the offense, and ultimately concluded that, even if a pre-quickening abortion was not illegal under the common law, there was no support under the common law establishing a legal right to an abortion.[34]

After concluding that the common law in the colonial period was no different than that in England,[35] the Court moved on to the treatment of abortion by the States at the time of the ratification of the Fourteenth Amendment. In the year of ratification, 28 of the 37 states had outlawed abortion at all stages of pregnancy.[36] By 1919, the remaining States at the time of ratification and each of the territories that would eventually become States had criminalized abortion at all stages of pregnancy (except, ironically enough, Mississippi, which did not do so until 1952).[37] The Court concluded that there was, therefore, convincing historical evidence against the proposition that the right to an abortion is deeply rooted in the Nation’s history and tradition. And that historical evidence was crucial to the Court’s stare decisis analysis and its ultimate decision to overturn Roe and Casey.[38]

Historical analysis was central to both Bruen and Dobbs. The bench and bar across the United States should pay close attention to these cases. Lawyers would be wise to begin incorporating their lessons into their approach to the law. Bruen, in fact, can be seen as a rare rebuke from the Court against the inferior courts for their failure to appreciate the centrality of history to constitutional analysis. And Dobbs can be seen as a similar repudiation of the Court’s own past practices, indicating that historical analysis will have a central place in any stare decisis considerations. Now is an appropriate moment, therefore, for the whole legal field to reorient itself with legal history at both the state and federal levels.

[1] See Matthew J. Festa, Applying a Usable Past: The Use of History in Law, 38 Seton Hall L. Rev. 479 at 490 (2008).

[2] No. 20–843, 597 U. S. ____ (June 23, 2022).

[3] 554 U. S. 570 (2008).

[4] 561 U. S. 742 (2010).

[5] Bruen, Slip op. at 9 (Majority opinion). The Court acknowledged that differences between the Courts of Appeals concerning who had the burden at this first stage, most courts required the government to justify its regulation by “establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood.” Kanter v. Barr, 919 F. 3d 437, 441 (CA7 2019). Some courts, however, required the claimant to show “‘a burden on conduct falling within the scope of the Second Amendment’s guarantee’” United States v. Boyd, 999 F. 3d 171, 185 (CA3 2021).

[6] Bruen, Slip op. at 9 (Majority opinion) citing Kanter, 919 F. 3d, at 441.

[7] Id. at pp 9-10.

[8] Id. at 10.

[9] Id.

[10] Id. at 13 citing 554 U. S. at 634 and 561 U. S. at 790–791 (plurality opinion).

[11] See id. at pp 21 (Breyer, J., dissenting)(describing the Court-majority’s “history-only approach” as “unusual”).

[12] See, e.g., John Phillip Reid, Constitutional History of the American Revolution (Abridged) (1995).

[13] The British constitution, of course, was unwritten, which necessitated the use of past practice as evidence of what the constitution was.

[14] Bruen, Slip op. at 17-18 (Majority Opinion).

[15] See id. at 26 stating “A long unbroken line of common-law precedent stretching from Bracton to Blackstone is far more likely to be part of our law than a short-lived 14th-century English practice.”

[16] See id. at 27 citing NLRB v. Noel Canning, 573 U. S. 513, 572 (2014) (Scalia, J., concurring in judgment).

[17] Id.

[18] Id. at 32 citing 2 Edw. 3 c. 3 (1328).

[19] Id. at 32-33.

[20] Id. at 35, citing 1 Comb., at 39, 90 Eng. Rep., at 330; see also id. at pp. 36-37 citing 1 Pleas of the Crown 136.

[21] Id. at 34 citing Rex v. Sir John Knight, 1 Comb. 38, 38–39, 90 Eng. Rep. 330 (K. B. 1686).

[22] Id. at 36 citing Wm. & Mary c. 2, §7, in 3 Eng. Stat. at Large 417 (1689).

[23] Id. at 38, 41-42.

[24] Id. at 43,

[25] See id. at 46 and 51.

[26] See id. at 62.

[27] No. 19–1392, 597 U. S. ____ (June 24, 2022).

[28] 410 U. S. 113 (1973).

[29] 505 U. S. 833 (1992).

[30] 521 U. S. 702 (1997).

[31] Dobbs, Slip op. at 12 (Majority opinion), citing, inter alia, 521 U.S. at 721.

[32] Id. at 17.

[33] See id. citing 2 De Legibus et Consuetudinibus Angliae 279 (T. Twiss ed. 1879) and 1 Fleta, c. 23, reprinted in 72 Selden Soc. 60– 61 (H. Richardson & G. Sayles eds. 1955) (13th-century treatise).

[34] See id. at 18, 19-20.

[35] Id. at 21.

[36] Id. at 23.

[37] See id. at App. A.

[38] See id. at p. 45.