In New York State Rifle & Pistol Ass’n., Inc. v. Bruen, 597 U.S. 1 (2022), the Supreme Court instructed lower courts to apply a “history and tradition” test when evaluating the constitutionality of gun laws. For example, if considering an age limit on gun possession, the court must determine whether states imposed sufficiently analogous age limits in the past. Since Bruen, I have occasionally received inquiries from trial lawyers around Tennessee. Inevitably they have a looming deadline and need a legal historian to help out with a gun case, and inevitably I have to decline. I can understand why my name might pop up in a Google search: I live in Tennessee, I teach constitutional law (including cases like Bruen), and I’m a legal historian by training. But I don’t have any particular expertise in the history of gun laws, at least not as historians define expertise (i.e., years of immersion in the relevant primary and secondary sources).
When reading Joseph Blocher and Brandon L. Garrett’s forthcoming article, “Applying History as Law,” I realized my experience illustrates a larger phenomenon: “In the wake of Bruen, it quickly became apparent that the number of historians who seriously study gun laws is actually quite small; it would be impossible for them to serve as experts in every case, even if the litigants consistently had adequate resources to retain them.” (P. 46.)1
As Blocher and Garrett chronicle, the Supreme Court in various doctrinal contexts has increasingly emphasized historical facts in constitutional litigation (a category that potentially includes a large swath of otherwise workaday criminal cases). Of course, there is plenty of theoretical debate about the role history should play in constitutional interpretation. But this article focuses primarily on the nuts-and-bolts questions of practical implementation that “history and tradition”-type tests raise for lower courts and litigants. And ultimately, the authors raise provocative questions about whether it’s possible, much less desirable, for historical fact-finding to become a routine part of day-to-day litigation.
To be sure, jurists have long drawn upon historical background to interpret the meaning of constitutional provisions. In recent years, though, the Supreme Court has increasingly adopted doctrinal tests that require lower courts to answer specific and somewhat bespoke historical questions when applying the tests (e.g., what is the history of age limits on gun possession). Although the Second Amendment post-Bruen is a major focus, the authors canvass other doctrinal contexts too, such as abortion and religion. In these areas, the justices not only cite historical facts themselves, but also “announc[e] tests that require lower courts to engage in their own historical fact-finding in order to resolve concrete disputes.” (P. 6.)
Such tests can raise difficult questions for lower courts. For example—and notwithstanding that Supreme Court justices often seem to feel at liberty to find facts themselves through in-chambers research and/or amicus briefs—American trial judges in adversarial proceedings are not usually supposed to engage in independent fact-finding. The Federal Rules of Evidence, for example, prohibit taking judicial notice of facts unless they are beyond “reasonable dispute.”
Therefore, if a case turns on debatable historical facts, presumably the parties must place those facts into the judicial record. But how mechanically should this occur? When are written filings sufficient? Should the parties hire historians to testify as experts? If they don’t, should the trial judge appoint an independent expert? Can lower courts recycle historical facts previously found by other courts as a kind of “precedent”? As Blocher and Garrett summarize, lower courts and litigants have recently debated and divided over such details, particularly in Second Amendment cases.
Existing court rules and procedures are not well tailored to this type of exercise. For example, in criminal cases, “the typical pre-trial discovery and hearing rules were crafted with forensic reports and suppression hearings in mind, not disputes about legal history.” (P. 30.) Nor do lawyers necessarily have the training, library resources, and time to conduct in-depth historical research. Indeed, the authors note that “Second Amendment challenges typically involve a criminal statute and thus place the initial demands of historical research on criminal defense lawyers and government attorneys—two groups for whom time and resources are at a premium.” (P. 32.)
Blocher and Garrett argue, nevertheless, that historical disputes should be treated the same as “disputes regarding any other area of technical or scientific evidence—relying on the parties but also, where needed, on experts.” (P. 11.) Ordinary procedural and evidentiary rules should apply, including the Federal Rules of Evidence. Appellate courts should defer to the lower courts as the finders of fact in the first instance and potentially remand cases if there was inadequate factual development below. (P. 11.)
Notably for historians, taking these recommendations seriously might mean a reduced reliance on amicus briefs at the appellate and Supreme Court level. In recent high-profile cases, such briefs have become the primary vehicle for historians to influence (or try to influence) constitutional decision-making. Instead, the emphasis might shift toward hiring historians as expert witnesses at the trial level. To be sure, there are some specialized contexts like voting rights where historians already frequently testify, but in other fields the practice might be new terrain.
On one level, Applying History as Law provides a helpful overview of how litigants and lower courts are responding to the historical turn in constitutional doctrine. On another level, the article is also deceptively provocative, weaving through its practical analysis a trenchant critique. As the authors suggest at various points, once one starts working through the practical questions it’s hard not to wonder whether the Supreme Court is asking “more of historical fact-finding than the legal process can legitimately deliver.” (P. 46.) If so, then the doctrine may (and perhaps should) eventually shift back towards standards that are more capable of application by lower courts.
In that sense, I found the article oddly reassuring. It seems that underneath the new political trappings of the Supreme Court’s recent twists and turns, there is also something else going on that is quite familiar in the annals of judicial history: justices from their lofty heights imposing rules upon the rest of the legal pyramid that do not really make sense for busy lawyers and trial judges who have to worry about deadlines, dockets, and trying not to get reversed on appeal.
- Shawn Hubler, In the Gun Law Fights of 2023, a Need for Experts on the Weapons of 1791, N.Y. Times, Mar. 14, 2023.
