Text, history, and tradition: what the Seventh Amendment can teach us about the Second.

• Author: Miller, Darrell A.H.
• Position: Introduction through II. The Seventh Amendment Text, History, and Test, p. 852-893

ARTICLE CONTENTS INTRODUCTION I. HELLER'S RIDDLE A. The High Court Challenge B. The Lower Court Response II. THE SEVENTH AMENDMENT TEXT, HISTORY, AND TEST A. Seventh Amendment History, the Historical Test, and Some Initial Questions 1. Whose History? 2. How Much History? 3. What About Conflicting or Indeterminate History? B. The Seventh Amendment Historical Test Restated: Boundary Setting and Tailoring III. A SECOND AMENDMENT HISTORICAL TEST: THE SEVENTH AMENDMENT'S (PARTIAL) ANSWER TO HELLER'S RIDDLE A. Borrowing from the Seventh Amendment for the Second: A Justification in Four Parts 1. The Textual Necessity for Second Amendment Construction and Holistic Justifications for Borrowing from the Seventh Amendment 2. Constitutional Construction and the Second and Seventh Amendments as Preconstitutional, Preexisting Rights 3. History, Common Law, and Reasoning by Analogy in Constitutional Construction 4. A Word on Good Faith Borrowing B. A Historical Test for the Second Amendment: Some Familiar Questions 1. Whose History? 2. How Much History? 3. What About Conflicting or Indeterminate History? C. A Second Amendment Historical Test: Boundary Setting and Tailoring 1. Boundary Setting 2. Tailoring 3. The Test in Action: High Capacity Magazines IV. REWARDS AND RISKS OF A HISTORICAL TEST FOR THE SECOND AMENDMENT A. Rewards 1. Reducing Judicial Empiricism 2. Reducing the Potential of Categorical Creep 3. Acknowledging the Institutional Aspects of the Right To Keep and Bear Arms B. Risks 1. The Reek of Law-Office History 2. The Persistence of the Collapse Problem 3. Popular, but Not Constitutionally Popular CONCLUSION INTRODUCTION

In District of Columbia v. Heller, (1) and its sequel, McDonald v. City of Chicago, (2) the Court posed a riddle. The riddle can be restated like this:

What test adheres to the Second Amendment's past, rejects balancing that right against present government interests, and preserves all but the most draconian regulations for the future? The Court's nascent Second Amendment jurisprudence is a riddle because while the Court demands the most scrupulous investigation of history and a near-blanket prohibition on balancing, it also states that a number of modern regulations are "presumptively lawful" (3) despite their dubious historical provenance or their interest-balancing origins.

The Court's challenge has left many judges frustrated because, as discussed in more detail below, the Court's demands appear to be facially irreconcilable. Some judges have answered by mechanically citing broad dicta in Heller and McDonald concerning these "presumptively lawful" regulations, (4) rather than conducting the historical inquiry the Court ostensibly demands. Other judges have simply ignored the Court's rejection of balancing tests. Instead, they have allowed the right to keep and bear arms to be gobbled up by intermediate scrutiny or similar tests that weigh serious, important, or compelling government interests against Second Amendment commands. (5)

This Article argues that these lower court efforts to fashion a test simply cannot be squared with the Court's insistence on historical fidelity, its rejection of balancing, and the preservation of most reasonable firearm regulations. It assumes that the Court is serious when it instructs lower courts to avoid tests that call for any balancing at all, even if that means, as some lower court judges have said, eliminating the traditional levels-of-scrutiny analysis in Second

Amendment cases. (6) It suggests that one way of reexamining the riddle is to refer to the Seventh Amendment right to trial by jury, one of the most historically determined of constitutional provisions. (7) The Seventh Amendment requires that federal courts "preserve[]" (8) a preexisting right to a jury in suits at common law. In much the same way, the Court has stated that the Second Amendment preserves a "pre-existing" right to keep and bear arms for the core purpose of self-defense. (9) Simultaneously, the Seventh Amendment does not operate with traditional levels of scrutiny or open-ended balancing; and yet, the "preserved" right to a trial by jury does not require that every detail of 1791 common law be transposed to the twenty-first century. (10)

Instead of levels of scrutiny or balancing, the Court has devised a "historical test" for the Seventh Amendment. The Court's historical test places great, but not exclusive, reliance on analogical reasoning from text, common law history, or tradition to determine the constitutionality of any given practice or regulation. That process of reasoning by historical analogy drives the Seventh Amendment inquiry in a way that far surpasses the Court's approach to other provisions in the Bill of Rights. As such, the Court's historical test for the Seventh Amendment offers lessons, but also presents its own set of problems, for lower courts struggling to implement the Second Amendment right to keep and bear arms. (11)

This Article is likely to appeal to lawyers, judges, and scholars amenable to a new approach to Second Amendment questions, one that reduces judicial reliance on hotly disputed empirical evidence surrounding the right to keep and bear arms, but one that also avoids a calcified method that is unable to address the realities of modern firearm technology and culture. (12) The Court's implementation of the Seventh Amendment provides a counterintuitive but important resource in this regard. The Justices appear to have reached consensus that the Seventh Amendment's text demands a level of historical engagement (13) that exceeds what other, more open-textured provisions of the Bill of Rights require. (14) They also all appear to agree that it is untenable to woodenly "preserve" the common law right to a jury trial as it existed in 1791. (15) As a consequence, the Court has converged on a historical test that attempts to remain true to the text, history, and tradition of the Seventh Amendment, but is supple enough to address the demands of a twenty-first-century judicial system.

The Court's effort to implement the Seventh Amendment through a historical test is instructive because Heller and McDonald appear to commit the Court to a similar history-centered approach in Second Amendment cases. All members of the Court seem wary of literal application of the text, (16) but the

Heller majority and dissents differ on the method of establishing limits. The Heller majority insists that the scope of the right is to be determined by history, and they categorically reject the dissenters' use of balancing tests. (17) But they refuse to explain how such a history-centered test may operate in litigation. To the extent that the Court is serious about rejecting balancing and embracing history, "borrowing" (18) from the Court's Seventh Amendment jurisprudence can provide clues about how courts may craft a history-centered test for the Second Amendment.

This Article is likely to appeal on a broader scale as well. The Seventh Amendment, the Second Amendment, and other areas of constitutional law present challenges about how one can create a jurisprudence from the reliquary of history that is both durable and principled. Those challenges include: Whose history do we consult when construing constitutional text? How much history do we consult? What do we do when history does not give us a clear answer? And, in particular, what rules govern when, and at what level of generality, to identify and examine a historical analogue for purposes of constitutional decisionmaking? These questions are as old as the Constitution itself. (19) But they have acquired particular salience in the last twenty years, as scholars both inside and outside the interpretive movement known as "originalism" try to use common law traditions to give text determinate meaning, not only in Second (20) and Seventh Amendment cases, (21) but also in other areas of constitutional law (22) and theory. (23) For those engaging with these questions, this Article is also likely to be of interest.

The Article progresses as follows: Part I discusses the incompatible demands that the Court's Heller and McDonald decisions place on lower courts. Specifically, it considers the demand that judges conduct a meticulous historical evaluation of the Second Amendment's text and context, reject balancing tests, and yet preserve a nonexhaustive list of presumably constitutional restrictions on firearms. Part II explores how the Court has developed a Seventh Amendment doctrine designed to preserve the right to a trial by jury at common law in its essential features, but which remains sufficiently flexible to deal with the demands of the modern civil justice system. Assuming the Court is serious about a history-centered approach to the Second Amendment, Part III explains how "constitutional borrowing" (24)--drawing on the Seventh Amendment's historical test--could help to implement the Second Amendment's right to keep and bear arms. In particular, it explains how the Court's historical test for the Seventh Amendment can help structure an analysis of three reoccurring post-Heller issues: (1) the kinds of behavior that trigger Second Amendment protection; (2) the kinds of regulations that qualify as an infringement of that right, assuming the behavior falls within the scope of the Second Amendment; and (3) the character of judicially cognizable material to determine (1) and (2). Part III demonstrates how holistic constitutional interpretation, the Court's stated methodological commitments, and the challenge of reasoning by analogy in Second Amendment cases can justify borrowing from Seventh Amendment doctrine, which represents one of the few history-centered methodologies available in the constitutional canon. It then explores what a historical test might look like for purposes of the Second Amendment, assuming the Court's methodological commitments hold fast. Part IV outlines the potential benefits of this...