Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second

In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test that many jurists and scholars consider exceedingly manipulable.This Article argues that courts could look to the Supreme Court’s Seventh Amendment jurisprudence, and in particular the Seventh Amendment’s “historical test,” to help them devise a test for the Second. The historical test relies primarily on analogical reasoning from text, history, and tradition to determine the constitutionality of any given practice or regulation. Yet the historical test is supple enough to respond to the demands of a twenty-first-century judicial system. As such, it provides valuable insights, but also its own set of problems, for those judges and scholars struggling to implement the right to keep and bear arms

Retail Rebellion and the Second Amendment

When, if ever, is there a Second Amendment right to kill a cop? This piece seeks to answer that question. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment codifies a natural right to keep and bear arms for self-defense. That right to self-defense extends to both private and public threats, including self-defense against agents of a tyrannical government. Moreover, the right is individual. Individuals -- not just communities -- have the right to protect themselves from public violence. Individuals -- not just militias -- have the right to defend themselves against tyranny. In McDonald v. City of Chicago, the Court went further, explaining that the right extends to state actors in large part due to the necessity that freedmen be able to defend themselves from tyrannical local law enforcement. But how is this right administered? If the Second Amendment protects an individual right to defend against tyranny, what does such a right look like? What does the Second Amendment say about retail forms of rebellion: threatening police officers, resisting an illegal arrest, cop killing? And how does it square with originalism, which rejects case-by-case balancing of government interests, and instead looks to history -- a history that for centuries protected a right to violently resist unlawful arrest and which placed guns in the hands of freedmen specifically to challenge unreconstructed Southern law enforcement? These questions are especially pertinent now, as individuals bring handguns to town hall meetings and assault rifles to presidential addresses, and as the Court held in McDonald that the right extends to all levels of government and to all levels of law enforcement. As Justice Breyer remarked in his Heller dissent, “to raise a self-defense question is not to answer it.” This piece attempts to formulate answers to the questions that the Second Amendment raises and will continue to raise in the area of self-defense against the police. And it concludes that for the problem of retail rebellion there is a solution: retail justice

Owning Heller

Recent historical research using big-data techniques casts doubt on whether District of Columbia v. Heller was rightly decided according to originalist methods. These new discoveries put originalists in a bind. Do they embrace “faint hearted” originalism: the idea that as between the need for stability in prior decision making, settled expectations, and the coherence of the law, some adulterated decisions must remain enforced for the greater good? Or do they follow Justice Thomas’s reasoning in Gamble v. United States, remain stout-hearted, and reject any prior decision that cannot be supported by the common linguistic usage of the founding era – even if that means rejecting Heller? One thing this new research makes abundantly clear: the Second Amendment is in the Court’s hands. How it develops—for good or ill—will be a function solely of the wisdom with which the Court articulates its mandates

White Cartels, the Civil Rights Act of 1866, and the History of Jones v. Alfred H. Mayer Co.

In 2008, Jones v. Alfred H. Mayer Co. turned forty. In Jones, the U.S. Supreme Court held for the first time that Congress can use its enforcement power under the Thirteenth Amendment, which abolished slavery, to prohibit private racial discrimination in the sale of property. Jones temporarily awoke the Thirteenth Amendment and its enforcement legislation--the Civil Rights Act of 1866--from a century-long slumber. Moreover, it recognized an economic reality: racial discrimination by private actors can be as debilitating as racial discrimination by public actors. In doing so, Jones veered away from three decades of civil rights doctrine--a doctrine that had focused primarily on the Fourteenth, rather than the Thirteenth, Amendment, and on public actors, rather than on private actors. Further, by applying the Civil Rights Act of 1866 to private discrimination, Jones acknowledged the nineteenth-century roots of economic arguments that scholars use today to critique the relationship between private and public power. Yet, despite its importance, Jones largely has been relegated to a squib in textbooks. Few scholars have attempted to analyze Jones in light of other, analogous types of discriminatory behavior by private groups--especially cartel behavior. And, unlike more famous civil rights cases, like Brown v. Board of Education, almost nothing is written about the people of Jones--the litigants, the lawyers, and the judges behind the caption. This Article addresses that neglect. First, it ties economic theories about racial discrimination together with the history of the Civil Rights Act of 1866 and its subsequent interpretation in Jones. It explains how Congress\u27s exercise of Thirteenth Amendment power to govern private economic relationships during Reconstruction gave important, but unacknowledged, intellectual credence to the antitrust movements of the late nineteenth and early twentieth centuries. Second, it explores the human story behind Jones, tracking the narrative of the Joneses, their counsel, the judges, and their lives after the decision. Finally, it explains how Jones\u27s recognition of the interrelationship between public and private coercion can help scholars, lawmakers, and jurists define the contours of Thirteenth Amendment power

Institutions and the Second Amendment

District of Columbia v. Heller ruptured the one institution—the militia—that courts had used for centuries to implement the right to keep and bear arms. If the question was “what arms?,” one looked to the militia to find an answer; if the question was “whose arms?,” again, one looked to the militia. Heller loosened the fit between the militia and the right, causing a welter of conflict as to what institutions now facilitate and constrain the Second Amendment. This Article attempts to restructure the inquiry into Second Amendment rights by drawing from the literature on institutionalism and constitutional law. Although the institutional turn in constitutional law has been important to free speech scholarship, religion clause scholarship, and separation of powers scholarship, no one has consciously applied institutionalism to the Second Amendment. This Article fills that gap. In so doing, it situates institutionalism within the leading methodological approaches of today: textualism, originalism, common law constitutionalism, popular constitutionalism, and pragmatism. As such, this Article aims to reach beyond Second Amendment scholars and speak more generally to debates about constitutional law and constitutional theory