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07/17/2022

Jack Balkin Has Questions about NYSRPA v. Bruen
Michael Ramsey

At Balkinization, Jack Balkin: Text, History and Tradition: Discussion Questions on New York State Rifle And Pistol Association, Inc. v. Bruen.  From the introduction: 

Here are the discussion questions for New York State Rifle And Pistol Association, Inc. v. Bruen that will appear in this year’s Levinson Balkin Con Law supplement. These questions arose out of conversations with my colleague Reva Siegel. 

I want to point out that one of the most important methodological developments is a sea change in originalism practiced at the Supreme Court. The old formula for originalists was “text, history, and structure.” The new formula that appears to be emerging is “text, history and tradition.” 
 
As noted below, there are important differences between originalism and traditionalism, and sometimes the two are actually at cross-purposes. However, the Justices are blurring these distinctions, and it will be interesting to see how conservative originalists in the academy respond to the Court’s focus on traditionalism. 
 
 In my 2013 article, The New Originalism and the Uses of History, I argued that regardless of the theories that academic originalists offer, originalist arguments by courts are hybrids, which include, whether explicitly or implicitly, appeals to national ethos, tradition, and honored authority. This Supreme Court Term confirms this tendency. 
 
 Another very interesting feature of Bruen is that Justice Thomas doubles down on the notion that originalist judges and Justices don’t have to be historians to practice originalism well, because they can just rely on the briefs submitted by the parties and amici. (See n.6 of Thomas’s opinion: “[i]n our adversarial system of adjudication, we follow the principle of party presentation.” United States v. Sineneng-Smith, 590 U.S. ––––, ––––, 140 S.Ct. 1575, 1579, 206 L.Ed.2d 866 (2020). Courts are thus entitled to decide a case based on the historical record compiled by the parties.”.) This passage in Bruen is likely to spark a great deal of academic writing, as it should!
 
He has 13 questions.  Here are the first two:
 
 1. Text, history and traditionBruen exemplifies how the Court’s conservative Justices have tended to merge originalist arguments with arguments from tradition. 

Original meaning and tradition are not the same thing. Originalists generally look to the meaning or understanding of texts at the time of adoption. A focus on tradition is a bit different: instead of looking at meanings or understandings, it looks at the continuity of practices over long periods of time. Traditions do not have to begin at any particular point in time and they may change over time. For example, if a right was not recognized at the Founding but there is a long tradition of protecting it that developed in the 1880s, there would not be an originalist argument for the right but it there would be an argument from tradition. 

Thomas’s text and history test tends to merge considerations of original meaning and tradition. He argues that people have a presumptive right to engage in conduct covered by the amendment’s text. Government may only regulate this conduct if there is a historical tradition of regulating it. By “this Nation’s historical tradition of firearm regulation,” he means a tradition of firearm regulation existing at the time of the adoption of the Second Amendment—or possibly at the time of adoption of the Fourteenth Amendment, which applies the Amendment to the States. Thomas’s opinion does not decide whether we look to the tradition of regulation as of 1791 or 1868. Instead, his opinion runs these two periods together, assuming that they constitute a single unbroken tradition. What should the Court do if the tradition of regulation is different in the two eras? 

[Aside: the last question echoes Michael Dorf's post, noted here.  The broader point about tradition I agree is a puzzling one, because the majority does not seem to distinguish between history and tradition, even though it says it is looking at both.]

2. The problem with tradition. Tests based on tradition tend to have three problems. The first is that arguments about tradition are told from the perspective of the present, and necessarily involve stories we tell ourselves about what the past must have been like. But because human behavior over a wide range of places and times may not actually fit neatly into a simple cohesive narrative, courts must tell a story that overlooks or excludes certain features of the past as not counting or as exceptions. (Thomas does this, for example, with Texas’s 19th century regulations). 

Second, arguments for following tradition assume that the tradition is wise or morally worthy from today’s perspective. But if the tradition is outmoded, premised on facts that no longer hold true today, or reflects immoral or unjust practices, it is not clear why we should follow the tradition today. So, for example, the practices of gun regulation in the late eighteenth century assumed weapons that were far less powerful, agile, and effective than today’s guns, operating in much less densely populated areas. They may also have reflected different moral assumptions about violence. 

Third, if we are using tradition only as evidence of original meaning, it is not enough to show that a practice existed. One must also show that people self-consciously understood the practice—which might be quite different in diverse contexts and places—to be part of the meaning of the text that they adopted. In the case of firearm regulation, this may be very difficult to do.

Agreed that these all seem to be problems.  I'm somewhat doubtful about the move to tradition, depending on what it means (though again, I'm not sure it added anything in Bruen; as discussed here, the Bruen majority seems to be a fairly straightforward originalist analysis).