Are judges good historians?

A Second Opinion is a recurring series by Haley Proctor on the Second Amendment and constitutional litigation.

Three years ago in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court announced a two-step test for Second Amendment challenges. A court must first ask whether the Second Amendment’s plain text covers the conduct in which the challenger wishes to engage. If it does, then the burden shifts to the government to show that its regulation of that conduct “is consistent with the Nation’s historical tradition of firearm regulation.”

Some have criticized Bruen’s test on the ground that it places an unreasonable burden on judges who must adjudicate Second Amendment challenges. For example, in his Bruen dissent, Justice Stephen Breyer called the test “deeply impractical. … Courts are, after all, staffed by lawyers, not historians.” Lower courts have taken up the lament. In one well-publicized opinion, Judge Carlton Reeves of the U.S. District Court for the Southern District of Mississippi complained that he and his colleagues on the bench “lack both the methodological and substantive knowledge that historians possess.” And the “sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform.”

Hence the question at the start of this post: are judges good historians?

My suggestion in this column is that this is not the right question to ask. After all, judges are not historians. They are, as Breyer pointed out, lawyers. And as Reeves says, the “sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform.” Asking whether judges are good historians is a bit like asking whether a postman is a good racecar driver. Racecar drivers and postmen alike operate motor vehicles, but their objectives, and the methods by which they achieve those objectives, are different.

Judges decide cases. Parties come to judges to resolve their disagreements. Some of those disagreements are about matters of fact (“what happened?”), and some of those disagreements are about matters of law (“what should have happened?”). “What happened” is a question about an event that occurred in the past. “What should have happened” is a question about a rule that existed in the past and was established even further in the past. Thus, as Professors Will Baude and Steve Sachs point out in Originalism and the Law of the Past (cited by the court in Bruen), all adjudication requires answering historical questions.

Of course, critics of originalism do not deny this. Breyer even acknowledges that “history can often be a useful tool in determining the meaning and scope of constitutional provisions.” We can all agree, then, that history is part of the lawyer’s toolkit. To be a good lawyer is to be good at wielding that tool.

The difficulty with originalism, according to its critics, is that the further back a judge looks, the fuzzier his vision becomes. It is easier to see 10 months or even 10 years into the past than it is to see 20 times 10 years. When the question is “What law was created in 1791?” the honest answer will sometimes be, “I’m not sure.”

What is the scale of this problem? And what should we do about it?

According to originalists, the distinction between the role of a judge and the role of a historian makes a difference on both fronts. First, it minimizes the scale of the problem. Evidence of the law is fairly durable and, even if the sands of time deprive law’s lines of some of their original sharpness, law will continue to supply the necessary answers in most cases. Second, unlike historians, judges must decide cases, even in the face of uncertainty. On the whole, originalists prefer an approach that limits the judge who is saying “what should have happened” to whatever he can learn from history.

Second Amendment litigation illustrates both points.

The scale of the problem

As noted earlier, the first step of Bruen requires the court to ask whether the Second Amendment’s plain text covers the conduct at issue. The text states that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

True, one must figure out the semantic meaning of these terms at the time of enactment. But, as illustrated by the Supreme Court’s fairly comprehensive plain text analysis in District of Columbia v. Heller, this has not yielded any results that should surprise the “people” of today. “People” means members of the political community, i.e., Americans. “Keep” means have. “Bear” means carry. “Arms” means weapons.

Generally, it is also going to be pretty easy to tell whether a given activity constitutes “keep[ing] and bear[ing] arms.” Hanging a shotgun over your mantle? Yes. Wearing a tank top? (Ha. Ha.) No.

The bottom line is that step one of Bruen’s test is unlikely to burden lower courts with much historical work, especially now that precedent settles much of the historical meaning of the Second Amendment’s words. (Applying the “plain text” to modern technology and activities may present its own difficulties, but that is a subject for a future post.)

At step two, the court must figure out whether the government’s regulation is part of a “historical tradition of firearm regulation.” To date, the Supreme Court has recognized a tradition of prohibiting “going armed to the terror of the people,” which it held supports the regulation of arms that are not in “common use” for lawful purposes and temporarily disarming individuals found “to pose a credible threat to the physical safety of another.”

A good deal of current litigation is over whether modern gun laws fit within this tradition. Adjudicating these disputes will require historical work at the margins, but many cases will be straightforward – or, at least, not history-bound.

Judges will confront their heaviest historical work when a party asks them to recognize a new “historical tradition of firearm regulation.” But it is not clear how many more historical traditions governments will be able to assert with credibility. As Professor Nelson Lund points out, there just wasn’t that much firearms regulation in the early republic.

In any event, what regulation there was should be easy to discover, at least relative to other historical phenomena. By the time a court arrives at the second step, it has already concluded that the conduct at issue falls within the express language of a constitutional amendment that prohibits “infring[ing]” the right it describes. A genuine tradition – as opposed to an outlier practice – would be reflected in multiple laws or practices, evidenced by contemporary legislative records, statutory compilations, judicial decisions, administrative records, treatises, manuals, etc. These sources may not be as easy to call up as their modern counterparts, but they are more durable, reliable, and regular than the typical historian’s fare. What is more, the market has responded to the court’s demand. Bruen has inspired a widespread effort to compile historical evidence – for example, the work of the Duke Center for Firearms Law.

Putting a judge’s historical work in the context of his job narrows the scale of the problem, but uncertainty may remain. How should a court respond to a “silent” or garbled past?

What to do about it

For a historian, the answer would be to say simply that it is silent or garbled. But as Baude and Sachs point out, that isn’t an option for judges. They have a case to decide. And that is why it is fortunate that they are lawyers rather than historians. The law supplies a variety of tools to “close the gap” of uncertainty. For example: the law places burdens on different parties at different points in the proceeding. If a judge or jury is unconvinced by the party who bears the burden of persuasion, then that party loses.

Bruen initially places a burden on the litigant claiming the rights — normally the person or group challenging the government’s efforts to regulate firearms. The claimant must persuade the court that the conduct in which he seeks to engage is covered by the “plain text” of the Second Amendment. If he meets that burden, then his conduct is presumptively protected, and the burden shifts to the government. Defending the burden-shift is beyond the scope of today’s column. The point is merely to illustrate one way a lawyer, as opposed to a historian, confronts uncertainty.

There are other ways. Breyer would supplement history with means-ends scrutiny, which means asking whether the government’s interest justifies the burden that the government is placing on the right. Some believe something like means-ends scrutiny is proper because constitutional rights, as originally understood, entitled their holders not to face improperly justified burdens on those rights. But Breyer’s judges-are-bad-at-history argument is different. Because history is hard, the argument goes, judges should supplement or displace it with an analysis that “weigh[s] a law’s objectives … against the methods used to achieve those objectives.”

One could argue that this sort of analysis requires the judge to take on a different role: that of legislator. That is just what the Supreme Court concluded in Bruen. The court rejected the idea that lawmaking (as opposed to history) should be part of the judge’s toolkit.

More importantly, such claims are beside the point if originalists are correct that history reveals the law. Critics of originalism are fond of quoting L.P. Hartley’s opening line from The Go-Between: “The past is a foreign country: they do things differently there.” As an indictment of originalism, the allusion strikes me as inapt. The narrator is referring to his own past, and the moral of the story is that he must confront his past to become a whole person in the present. Like the narrator, our law has a past, and our knowledge of the law remains incomplete so long as we fail to understand that past.