Michael Bloomberg’s anti-gun agitprop generation outlet, The Trace, is frightfully concerned about the prospect of Judge Amy Coney Barrett taking what they refer to as Ruth Bader Ginsburg’s seat on the high court. Their biggest worry is that a Justice Barrett would adhere too closely to the text, history and tradition of the Constitution for their tastes, which could mean dark days ahead for various gun control laws.
This “text, history, and tradition” test calls on courts to ask only one question: Is there some kind of historical precedent for a current gun law? If the answer is yes, then the court should uphold the gun regulation as constitutional. If the answer is no, then the court must strike down the gun regulation. This could potentially invalidate even politically popular regulations like strict permit requirements for public carry and bans on high-capacity magazines. And you can see how it might get difficult very quickly: We don’t allow guns on airplanes, but there couldn’t have been an airplane gun-ban in the 18th century because there were no airplanes.
One of the first high-profile evocations of the history and tradition test came from Justice Brett Kavanaugh, Trump’s last appointee to the high court. When he was a judge for the D.C. Circuit, he wrote a dissent in a case on Washington’s ban on semiautomatic rifles, calling on courts to stop considering modern public safety concerns in their Second Amendment analyses. He wrote, “In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test.” Kavanaugh went on to conclude that, because laws have allowed civilians to own semiautomatic rifles since the early 20th century, they should be protected by the Second Amendment today.
Gun rights attorneys read then-Judge Kavanaugh’s dissent as a clarion call for cases that would give courts across the country the opportunity to cement history and tradition as the true test of the Second Amendment. They have offered up the history and tradition test in dozens of cases in lower courts. The history and tradition test also appeared in 10 of the 12 Second Amendment petitions that crossed the Supreme Court’s desk last term. The justices agreed to take only one of those cases, giving gun rights litigators the chance to present the history and tradition test during oral arguments.