By Joseph Blocher,  Reva Siegel

This Article examines the ambitions of history-and-tradition review in and beyond the Second Amendment. In Bruen and Rahimi the Roberts Court rejected means-end review in favor of a historical-analogical approach, claiming to constrain the exercise of judicial discretion, and thus to promote the democratic decisions of the founders. But our examination of these cases shows that the Court has created new opportunities for judges to advance their values in considerably less transparent ways. We identify contexts in which Second Amendment doctrine enables judicial discretion, key among them that it allows judges to reason about gun rights and regulation at disparate levels of generality, extending rights protection to modern guns while requiring gun laws to resemble ancient analogues. When applied in this asymmetric fashion, the historical approach deregulates in ways that are neither acknowledged nor justified. An eight-member majority objected to this strategy in Rahimi and voted to uphold a federal gun law. Yet numerous Justices wrote separately to limit Rahimi’s reach—and, a year later, to suggest that the Court should take a case involving an assault-weapons ban to clarify the method set forth in its earlier cases. Our close reading of the history-and-tradition (HAT) cases shows that there is a persistent gap between what the Court says and does—between the judicial constraint the Roberts Court promises and the actual decisions it delivers. Understanding this dynamic in the Second Amendment cases helps us recognize it in the First Amendment and Substantive Due Process cases as well. We can better appreciate the Court’s reasoning in extending HAT review if we excavate the arguments advanced in the decade between Heller and Bruen for substituting the HAT approach for means-ends review. This retrospective shows us that HAT approaches exhibit the very problems imputed to means-ends review: HAT review is not grounded in original understanding and employs shifts in generality to provide judges discretion to enforce value-based understandings. We can see this dynamic unfolding inside and outside the Second Amendment context. HAT decisions pose distinctive threats to democracy. First, Bruen has implemented HAT through judicial review with a strong presumption of unconstitutionality, a counter-majoritarian practice lacking precedent at the founding. Second, HAT review is not transparent, obscuring reasons for judicial decisions from the people and thus obstructing democratic dialogue. Third, the HAT framework encourages judges to decide the constitutionality of public safety laws on grounds that ignore the public’s most urgent reasons for enacting the laws. This reading of the Court’s Second Amendment cases indicates that the push to adopt HAT approaches in First Amendment, Due Process, and other areas of constitutional law is likely to compound the problems it is supposed to solve, while insulating the Court’s control of the Constitution from the public governed by it.

174 U. PA. L. REV. (forthcoming 2026), Yale Law School, Public Law Research Paper

By Andrew Willinger and Eric Ruben

Legal scholarship is overly abstract and theoretical, making it unhelpful to judges and lawyers. That, at least, is the common critique from the bench. When it comes to the Second Amendment, however, a different pattern has emerged: judges consistently cite law review articles and look to the academy for guidance. Most recently, in United States v. Rahimi, some Justices went further, implicitly inviting more scholarly work to help the Court answer open questions raised by its novel methodological approach to the Second Amendment. This Article explores this aberrant trend.

We raise several explanations for the distinctive scholarly role in Second Amendment jurisprudence, including the Amendment's unique aspects as well as the role of legal movements in facilitating the Amendment's development. Faced with a lack of judicial precedent on both the right to keep and bear arms and originalism-in-practice, law review articles often can be more helpful than past opinions. Beyond scholarship's utility in a new area of law, we suggest that a related phenomenon-the gun rights and conservative legal movements' trifold success at facilitating the rise of the individual Second Amendment right, popularizing originalism as a methodology, and elevating originalist judges to the bench-is an important part of the story. For a half century, organizations focused on achieving both a robust right to bear arms and a conservative vision of the Constitution have become more prominent and have closely associated with both scholars and judges. If, in the usual telling, judges look askance at scholarship, this specific area of law might present an exception since it has been a joint project from the beginning.

The Article concludes that the judge-scholar collaboration that has characterized Second Amendment case law is likely to continue. Moreover, it could have ramifications far beyond the right to keep and bear arms, including for other rights that may be on the cusp of transformation and for other legal movements seeking to emulate the strategies that ushered in modern Second Amendment law.

78 SMU Law Review __ (forthcoming), Duke Law School Public Law & Legal Theory Series No. 2025-26, SMU Dedman School of Law Legal Studies Research Paper No. 696,