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The Supreme Court’s 2022 ruling in NYSRPA v. Bruen did more than just strike down New York’s handgun permit rule. It gave every trial judge in the country a new job: historian. After Bruen, the majority wrote, gun laws will only be constitutional if the government proves them “consistent with this Nation's historical tradition of firearm regulation.” 

But what is that tradition? The Court didn’t specify. Nor did it direct courts how or where to discover it: who should do the finding, how far back they should look, which old gun laws can be used as analogies, or how many are needed to establish “tradition.” 

The novelty of Bruen and other doctrinal tests that require laws to comport with “history, text, and tradition” raises serious challenges for courts around the country, say Duke Law constitutional scholars Joseph Blocher and Brandon Garrett.

“How are judges and litigants to implement the historical tests the Court has increasingly prescribed for them?” Blocher and Garrett ask in Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine, one of a series of articles they have written on the topic.

The answer, they say, is that nobody really knows.

“Judges are not historians. We were not trained as historians,” wrote District Judge Carlton Reeves, as quoted in the paper. “Yet the standard articulated in Bruen expects us to ‘play historian in the name of constitutional adjudication.’”

Justice Sonia Sotomayor wrote in a 2024 concurring opinion: “One need only read a handful of lower court decisions applying Bruen to appreciate the confusion this Court has caused.”

And noted historian Zachary Schrag replied “No” when asked in a District of Columbia case whether he could research the “Nation’s historical tradition” of firearms regulation on public transit within 60 days. “To do their best work, historians cannot be rushed,” Schrag said in his declaration. 

Courts ill-equipped to conduct historical investigations

Courts have long interpreted the law by looking to historical sources for background information, Blocher and Garrett say. But as the dominant view on the Supreme Court has shifted to originalism, a theory that the Constitution should be interpreted according to the meaning of its text when it was ratified, the importance of historical evidence has increased.

 The authors use the term broadly to include related approaches that look to history and tradition. Today, as they argue in previous work, the historical fact-finding on which originalism relies is being applied not just as background information but to “declare the content of constitutional law” in a broad number of areas. 

Historical evidence is now used “not only to interpret the meaning of constitutional text, but to establish doctrinal tests that call for historical evidence to be used in the application of those tests going forward,” they write. “Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application.”

Blocher and Garrett point to three recent landmark decisions that each demanded historical analysis but did not exemplify it.

Bruen replaced the two-part framework courts used in Second Amendment cases with a new test that requires the government to “affirmatively prove” a modern gun law has an historical analog. But that case reached the court on a motion to dismiss, with no trial record, and the Court didn't send the case back for historical fact development.

Kennedy v. Bremerton announced that cases arising under the First Amendment’s Establishment Clause must be resolved by “reference to historical practices and understandings.” The Court offered little guidance on which historical facts courts should consider in future cases. 

Dobbs v. Jackson Women's Health Organization overturned the right to abortion established 49 years prior, concluding that by 1868 a majority of states (a count historians have disputed) had statutes criminalizing abortion and that the right "is not deeply rooted in the Nation’s history and traditions.”

Not all the Supreme Court’s originalists are comfortable with such heavy reliance on history. “Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests. But a rule rendering tradition dispositive is itself a judge-made test,” Justice Amy Coney Barrett wrote separately in Vidal v. Elster, a case about trademarks and the First Amendment. 

Courts need standards – and guardrails 

Blocher and Garrett say the burden of the new historical tests has landed heavily on courts and especially on litigants who potentially face “higher costs of research and briefing historical facts, as well as legal standards that are more obscure and unpredictable” due to inconsistencies in how courts develop the historical record and apply the law. Those inconsistencies could cause different outcomes in cases involving the same law.

Absent further direction, Blocher and Garrett offer some guidance for satisfying the requirements of the new tests.

• The task of developing a record of historical facts should be confined to the trial courts and supported by local rules.
• Appellate courts should send cases back to the lower courts when further factual development is needed, and not engage in historical fact-finding themselves. 
• Professional historians should sometimes be employed in historical fact-finding and testimony — just as experts are used, under existing rules, in scientific or technical cases where the judge lacks expertise.
• Juries should help decide whether the facts satisfy any legal standard that incorporates historical facts, and must be instructed on how to apply the law accordingly.

Blocher and Garrett argue that historical evidence needs the same kinds of guardrails that govern the use of other types of evidence. Without it, they say, the history-based tests will fail in practice, however sound they may be in theory.

“The Supreme Court is making history by setting out constitutional standards that require evaluation of historical facts,” they write. “… Without adequate standards for applying history as law, the resulting doctrine will fail to produce coherent, accurate, or fair rules of decision.”