"Historical Tests, (Mostly) Unbalanced Rights, and What the Seventh
Amendment Can Teach Us About the Second" (
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2017288 )
Yale Law Journal, Forthcoming (
http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=93823 )
DARRELL A. H. MILLER (
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1107305 ),
University of Cincinnati College of Law, Duke University School of Law
Email: [email protected]
In District of Columbia v. Heller, and its sequel, McDonald v. City of
Chicago, the Court posed a riddle. The riddle can be restated like this:
"What test adheres to the Second Amendment’s past, rejects balancing
the 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,” despite their
dubious historical or interest-balancing origins.
The Court’s challenge has left many judges frustrated. Some judges have
answered the riddle by mechanically citing broad dicta in Heller
concerning “presumptively lawful regulations.” Other judges have simply
ignored the Court’s rejection of balancing tests, and have adopted
“intermediate scrutiny” or similar tests, in which serious or
important or compelling government interests are weighed against Second
Amendment commands. Very few have engaged in the historical
investigation the Heller decision ostensibly requires.
This article argues that these lower-court efforts to fashion a test
simply cannot be squared with the Court’s insistence on historical
fidelity, the rejection of balancing, and the preservation of most
reasonable firearm regulations. It suggests that one way of re-examining
Heller’s riddle is by looking to see how the Court has implemented the
Seventh Amendment right to trial by jury, one of the most
historically-determined of constitutional provisions.
It concludes that the Court’s implementation of the Seventh Amendment
through a “historical test” can provide valuable insights, but also its
own set of problems, for those struggling to fashion a Second Amendment
doctrine that can solve Heller’s riddle.
****************************************************************************************************************
Professor Joseph Olson, J.D., LL.M.
o- 651-523-2142
Hamline University School of Law (MS-D2037)
f- 651-523-2236
St. Paul, MN 55113-1235
c- 612-865-7956
[email protected]
http://law.hamline.edu/constitutional_law/joseph_olson.html
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