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

Author:Miller, Darrell A.H.
Position:III. A Second Amendment Historical Test: The Seventh Amendment's (Partial

    With its Seventh Amendment jurisprudence, the Court has drafted a schematic, if not quite a blueprint, for how to construct a historical test. This schematic shows that a historical test can address some familiar problems of constitutional implementation, problems that have been resolved by other doctrinal tests in other areas. In particular, the Seventh Amendment historical test provides a structure for deciding (1) which activities or prohibitions fall within the scope of the constitutional guarantee; (2) which activities or prohibitions transgress that constitutional guarantee; and (3) what kinds of proof or arguments may be deployed in evaluating both (2) and (2). Furthermore, it does so in a way that minimizes (though it can never completely eliminate) recourse to judicial evaluations of government interests, including those that appear in the traditional tiers-of-scrutiny formulation.

    Applying a history-centered methodology shaped by the Seventh Amendment, however, requires an additional layer of justification. The Seventh Amendment uses the terms "preserve" and "common law"; the Second Amendment does not. Critics of this Article will say that I expect a doctrinal tail to wag a textual dog; they will insist that doctrine should sprout organically from the constitutional provision itself, rather than be transplanted from some far-off corner of the Bill of Rights. While that criticism may ring true for those who subscribe to a clause-bound approach to constitutional interpretation, as I explain below, more holistic methodologies support the approach discussed here. (249) Borrowing is a common feature of constitutional construction, as Nelson Tebbe and Robert Tsai have recently explored. (250) As these authors note, judges borrow a range of material, including text, frameworks, doctrine, rationales, and principles, from both within and without the Constitution. (251) Borrowing can be driven by the text, context, and history of a particular constitutional provision, (252) by prudential concerns about stability and predictability in the law, (253) by the incremental nature of common law reasoning itself, (254) and often by all three. (255)

    This Part aims to justify why anyone should borrow from the Seventh Amendment to resolve problems with the Second. I reiterate, however, that the necessity of borrowing a historical test--indeed the need to adopt any historical test, borrowed or not-flows from some contestable postulates: First, that the Court's rhetorical commitments in Heller and McDonald reflect genuine methodological convictions, as opposed to transient judicial politics; second, that the Court expects the lower courts to produce and apply a test that satisfies these rhetorical commitments; and third, that the various flavors of scrutiny (intermediate, intermediate-intermediate, strict, semi-strict, rational basis with bite, etc.) are unpalatable to the majorities that decided both Heller and McDonald. (256)

    The postulates having been restated, Section III.A briefly summarizes the reasons for borrowing and explains why the Seventh Amendment historical test is suitable for borrowing. Section III.B will demonstrate how the Second Amendment right to keep and bear arms raises the same questions about the use of history that have challenged the Court in Seventh Amendment cases. In particular, Section III.B will showcase how the Court's Heller and McDonald decisions raise familiar questions of whose history counts for Second Amendment construction, how much history counts, and what a court must do about conflicting and indeterminate history. Section III.C will then explain how a Second Amendment historical test, patterned from the Seventh, can supply the familiar boundary-setting and tailoring functions normally provided by tiers-of-scrutiny or mixed-category-and-tiers-of-scrutiny approaches. Section III.C ends by demonstrating how a historical test for the Second Amendment might operate in practice.

    1. Borrowing from the Seventh Amendment for the Second: A Justification in Four Parts

      Courts often borrow from other areas of constitutional law to interpret text and to create decision rules. (257) Justice Scalia borrowed liberally from First Amendment doctrine in Heller to support the personal and preconstitutional nature of the Second Amendment and to urge a categorical approach to its limitations. (258) But once we move beyond the proposition that the Second Amendment, like the First, contemplates categories, we are set adrift. The flexible levels-of-scrutiny analysis that encumbers the First Amendment is "baggage" (259) the Heller majority seems eager to shed when it comes to the Second Amendment. (260) The question, then, is what sources courts may use to implement the Second Amendment once we accept the notion that it is to be implemented primarily through categories rather than balancing. The Seventh Amendment historical test provides some guidance.

      First, the Seventh Amendment offers intratextual clues as to what it means to "not infringe" or to "preserve" rights when those rights are understood to come from some prior, extratextual source. Second, even if one rejected the usefulness of understanding the word "infringe" by reference to the word "preserve," the Court insists that the Second Amendment simply reflects a preconstitutional right whose scope is determined by extratextual historical sources. It makes sense, then, for the Court to borrow doctrine that it has used to implement another right that shares the same features. Third, Seventh Amendment jurisprudence, for the most part, rejects balancing tests and forces the Court to depend primarily on analogical reasoning from history and common law in order to determine its applicability and scope. As such, the Court's implementation of the Seventh Amendment through analogical reasoning supplies a set of framing devices that may be transplanted to the Second Amendment. Finally, borrowing from the Seventh Amendment to develop a historical test is apolitical, in the sense that a historical test does not lead to predetermined outcomes. Borrowing could reinforce the argument that history-centered doctrinal tests are largely neutral and trans-substantive, rather than rationalizations for conservative policy preferences. (261)

      1. The Textual Necessity for Second Amendment Construction and Holistic Justifications for Borrowing from the Seventh Amendment

        The Second Amendment does not mean what it says. (262) We know this because applying the strict lexical meaning of the Second Amendment words

        "keep," bear, and "arm" would be cataclysmic. "Keep" means "have." (263) "Bear" means "carry." (264) "Arm" means "weapon." (265) A man strolling along Pennsylvania Avenue with a tactical nuclear warhead under his arm satisfies the dictionary sense of all these words. (266)

        Constitutional construction (267) is necessary when the meaning of the text "runs out." (268) With the Second Amendment, however, the problem is not that the text has run out; (269) it is that a literal reading of the text leads to absurd results. (270) Consequently, these quotidian terms, "keep," "bear," "arm," are bracketed by two other terms: "right" and "infringed." These two words transform plain meaning into idiomatic meaning. (271) And idiomatic meanings require construction.

        Holistic legal reasoning from the Seventh Amendment provides some clues as to how to construe this phrase. Reading the constitutional text as a whole allows interpretations of one section of text to shed light on the meaning of others. (272) The Court's Heller and McDonald opinions are saturated with such "intratextual" reasoning. (273) As just one example, Justice Scalia observed that the right of the "people" to assemble and the right of the "people" to keep and bear arms must be interpreted identically to allow for individual rather than solely collective rights. (274) Although the Seventh Amendment uses the terms "preserved" and "common law," which do not appear in the Second Amendment, (275) the textual implications can be overdrawn. As a matter of holistic legal reasoning, the Court's construction of the term "preserved" can help us understand how it could construe the word "infringed" in the Second Amendment.

        The Heller Court said that "[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them." (276) Whatever the truth of this assertion with respect to other constitutional rights, this language signals that the Heller majority understands the scope of the right to keep and bear arms to be fixed at some definitive period of adoption, and that fixation insulates it from legislative, executive, or judicial alteration. (277) Moreover, the scope of the right does not appear on the face of the text itself: arm, bear, and keep have the same meanings now as they did in 1791, but "longstanding" regulations are "presumptively" constitutional. (278) The sources used to define the scope of the right, and the nature of an infringement, must be extratextual and roughly contemporaneous with the relevant dates of ratification or, as I will discuss below, incorporation.

        This is where the idea of "preservation" in the Seventh Amendment helps. What does it mean to "infringe" a "right," given that both the right and its scope are fixed by some extraconstitutional sources in the past? "Infringe," according to eighteenth-century lexicographers, means "to violate; to break laws or contracts" or "to destroy; to hinder." (279) By comparison, the civil jury right must be "preserved." "Preserve," as defined in the eighteenth century, means "[t]o save, to defend from destruction or any evil, to keep." (280)

        Taking these sources at face value and examining them intratextually, "preserve[]" (281) connotes restraints on government activity at least equivalent to those implied by...

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