Originalism — a school of constitutional interpretation defined by the pursuit of the Constitution’s original meaning1 — has long been celebrated and criticized for its forceful prescriptions for litigants, jurists, and historians.2 As originalism has become increasingly central to jurisprudence, questions about how it may serve “as a workable prescription for judicial governance” have proliferated.3 From questions of what to do with nonoriginalist precedent4 to conversations about what exactly originalism is,5 the school invites as many questions as it purports to answer. Originalism sits uncomfortably with many traditional judicial practices, causing some to reconsider these doctrines to facilitate originalism’s implementation.6
This Note charts a different path. It draws attention to a type of originalist argument — the argument from historical absence — and the implementation issues it exacerbates. To address these challenges, it presents a modest framework that may be employed by courts required to consider these arguments. This Note conceives of arguments from historical absence as a style of assertion that centers the lack of historical evidence. A litigant hoping to rely upon historical absence may canvass the relevant historical record, find no sufficient historical analogue, and contend that this lack of evidence is itself supportive of their argument — typically, that a governmental practice would have been deemed (un)constitutional at the Founding. These arguments may be used both offensively (using historical absence to challenge a practice) and defensively (using historical absence to support a practice). Simply put, an offensive argument from historical absence may be: “No evidence supports the assertion that the original public meaning7 of X, or any analogous original public meaning, would permit Y; thus, Y is impermissible.” By contrast, a defensive argument may be: “No evidence supports the assertion that laws regulating Y, or its analogues,were treated as constitutionally suspect at the Founding; thus, the original public meaning of X was understood to permit Y and analogous regulations.”8
Arguments from historical absence warrant distinct analysis. To begin, they do not map cleanly onto the oft-provided justifications for originalism. Many of the justifications for originalism — from predictability to stability to judicial restraint9 — are premised upon its reliability and, to those who reject thin originalism, determinacy.10 Arguments from historical absence are a poor fit for these justifications, as they derive fact from absence and rely upon a shared fiction that the evidence currently known is all there may be. Compared to affirmative evidence, evidence of historical absence may be more easily displaced and, as will be shown, invites judicial misuse. Originalists have discussed this problem and its potential remedies,11 but jurists have likewise critiqued the solutions put forward.12
Moreover, though originalism’s certainty of prescription from the historical record has long drawn the ire of historians,13 its bases are more contestable when historical absence justifies particular outcomes.14 The basic contours of this critique are well known. As courts struggle to navigate originalist obligations,15 historians continually emphasize that “[t]hinking historically” requires time, effort, and expertise.16 Despite misaligned skillsets17 and timelines hostile to historical analysis,18 courts must nonetheless parse historical silence, exacerbating historians’ concerns. Historians contend that, even with a complete record, “the past is a foreign country.”19 Jurists have been called to navigate these foreign lands, relying upon history that may not exist as their guide. By contrast, though historians may be influenced by personal biases,20 the historian’s craft does not require them to make meaning from silence where no meaning is warranted.21
Furthermore, arguments from historical absence have an awkward relationship with current judicial doctrines. Scholars have long recognized the tension between the implementation of originalism and current doctrines, especially those of stare decisis and party presentation,22 but historical absence only exacerbates this issue. Regarding stare decisis, a given argument from historical absence may be persuasive the day it is made but patently false the next.23 No clear judicial off-ramp exists despite this potentiality. Regarding the party presentation principle, litigants may, intentionally or otherwise, improperly argue that the historical record is vacant, leaving courts to determine if this silence is legitimate or merely the result of inadequate historical research. Though the Court may not view itself as strictly bound by party presentation,24 its stance on lower court party presentation is comparably unclear.25
Finally, current structures (or, more accurately, their absence) invite judicial manipulation. Courts may approach historical absence without any guiding rationale regarding burdens of proof, deciding in some cases that arguments from historical absence are meaningful while disregarding them in the next.26 Despite critiques of bias,27 these decisions persist for years to come.
At the outset, two assumptions are in order. This Note assumes for the sake of argument that the pursuit of original public meaning, whether thick or thin, is worthwhile.28 Originalists disagree about history’s certainty, but they are nonetheless aligned in the pursuit of shared meaning. This Note further assumes that judges must sometimes attempt to perform originalism. Though “history and tradition” has become a flashpoint of critique,29 the Court has bound lower courts to originalist analysis in at least the Second Amendment context.30 This Note leaves normative debates aside and accepts the theory’s jurisprudential role, proposing a framework to deal with the particularly hairy problem of arguments from historical absence.31
This Note proceeds in three Parts. Part I explores the role of arguments from historical absence in judicial decisionmaking, contending that they are essential to originalist constitutional interpretation and construction but bring with them intellectual danger, and concluding that they warrant neither wholesale acceptance nor disregard. Part II puts forward a framework amenable to judicial limitations that courts may employ when presented with arguments from historical absence. Part III applies this framework, showcasing how it addresses various concerns in originalist analysis.
I. Historical Absence as Virtue and Vice
Arguments from historical absence are both beneficial and problematic for originalist interpretation. When employed under proper conditions, judges may find that arguments from historical absence empower them to perform their judicial role, enabling what may be a philosophically defensible pursuit of original public meaning while nonetheless serving as a practical necessity. However, currently, arguments from historical absence permit judicial inconsistency, enshrine bad precedent, and encourage lackluster originalist argumentation.
A. As Virtue
Arguments from historical absence have proven to be a necessary component of originalism. This Note posits three primary virtues of historical absence: (1) Absence may be informative of constitutional meaning given sufficient information; (2) absence fits well into the view that originalism is a valuable standard of correctness, even with imperfect implementation; and (3) absence is foundational to any hopes the school may have for broader implementation.
First, when supported by a sufficiently voluminous record, well-reasoned arguments from historical absence may permit jurists to determine some aspects of the Constitution’s original meaning. One may never truly be certain of the history yet to be discovered,32 but an expansive record may better support inferences from historical absence. This is not to say that properly scoped claims based in historical absence will solve originalism’s implementation issues — not even a complete historical record could do such a thing.33 Rather, arguments from historical absence may allow jurists to probe at the Constitution’s edges.
What was the original public meaning of the Second Amendment? Determining the answer is difficult,34 but historical absence may tell us what it was not. In New York State Rifle & Pistol Ass’n v. Bruen,35 for example, the Court drew from historical absence to invalidate a special-need requirement for concealed firearm carriage.36 Writing for the majority, Justice Thomas emphasized the lack of historical evidence supporting New York’s law.37 Accepting that firearms have changed greatly since the Founding,38 the absence of any analogous regulation may tell a decisionmaker that the Second Amendment did not permit the present regulation, even if that same decisionmaker cannot define the Second Amendment’s every contour. Though Bruen is partly a story of burdens of proof,39 historical absence nonetheless helped the Court attempt to understand the loose outline of the Second Amendment.
Second, arguments from historical absence may honor originalism’s intended values even when they fail to capture original public meaning. As Professor Stephen Sachs argues, judicial decisionmaking is built upon several kinds of “oughts.”40 A judge bound by originalist precedent ought to apply the original public meaning of a given constitutional phrase.41 However, our historical understanding is woefully incomplete, and “‘guess correctly’ is hardly useful advice.”42 As such, a judge looking to perform originalism properly when facing an incomplete historical record is left with two primary options: imperfectly attempt originalism or forgo its application. Faced with such a choice, an originalist may believe that a judge ought to attempt originalism, with historical absence serving as one tool.43 Not all historical absence is created equally, and different forms of judicial action in response to that silence may be required.44 However, even if one accepts imperfect execution and uncertain results, attempting originalist analysis may be normatively preferable to forgoing it altogether.
Take, for example, United States v. Chadwick.45 Asked to determine the permissibility of the government’s warrantless search of a locked and closed container over which federal officers had complete control,46 the Court faced competing arguments from historical absence. To defend this search, the government contended that “[n]othing in the pertinent history” supported the assertion “that the Fourth Amendment was intended to upset the settled practice allowing [warrantless] searches [outside the home] if supported by probable cause.”47 In response, Chadwick argued that “[t]he government introduce[d] no evidence which affirmatively establishe[d] or . . . indicate[d] . . . searches of personal property” were intended to be left unprotected.48 Chadwick further contended “that there is no recorded evidence of controversy” because “except for the narrowly circumscribed search-incident-to-arrest, there were no such warrantless searches in public.”49
In deciding a warrant was required,50 the Court expressed hesitancy regarding the value of silence while nonetheless drawing from it. Writing for the majority, Chief Justice Burger maligned historical silence, arguing it “tells us little about the Framers’ attitude toward” the search at issue.51 However, Chief Justice Burger simultaneously contended that even “if there is little evidence that the Framers intended the Warrant Clause to operate outside the home, there is no evidence . . . that they intended to exclude” all searches outside the home from its protections.52 In doing so, the Court acknowledged both the potential value of historical absence and its significant flaws. Yet the Court ultimately turned to nonoriginalist reasoning for relief.53 A Court more committed to the virtues of attempting originalism may have explored these arguments in greater depth.
Third, arguments from historical absence are an invaluable tool for judges who, in practice, must navigate uncertain originalist waters. Even though thousands of valuable sources are either unknowable or knowable but presently unknown, jurists must nonetheless dispose of the argument before them, relying upon historical absence to facilitate that pursuit.54 The Ninth Circuit’s recent decision in Wolford v. Lopez55 highlights this practical necessity. Wolford concerned the contours of the “sensitive places” exception, assumed to be historically founded in Bruen,56 as applied to over a dozen restrictions in Hawaii and California.57 Ultimately, the court deemed many of the restrictions historically
founded.58 The court navigated this new terrain in part by embracing some arguments from historical absence.59
As Wolford and United States v. Hemani60 now pend before the Court and the parties continue to push the limits of judicial capacity,61 the need for practical tools to implement originalism has come to the fore. Courts have struggled to follow originalist premises.62 In recognizing these limitations and facing ever-busy dockets, courts may believe arguments from historical absence are vital.
B. As Vice
Though historical absence may serve various needs, arguments relying upon it bring with them several issues. These issues are not entirely unique to arguments from historical absence,63 but as arguments from historical absence are analytically distinct from other types of originalist evidence,64 some degree of pause is warranted. Even if one accepts the theoretical value of historical absence, its practical limitations undercut its purported benefits.
Insufficient guidance regarding presumptive burdens currently permits inconsistent judicial decisionmaking.65 Though judicial constraint may no longer be “the ‘heart and soul’ of originalism,”66 the question of when historical absence means anything at all remains unresolved.67 As discussed, historical absence, when supported by a sufficient record, may be informative.68 But parties may draw from identical sources and proffer opposed conclusions.69 No decision procedure for evaluating arguments from historical absence requires consistency from jurists across decisions. The juxtaposition of the historical absence employed in Dobbs v. Jackson Women’s Health Organization70 and Bruen exemplifies this challenge. As Professor Jacob Charles notes, the Court employed “oscillating methods” across these cases, recognizing in Dobbs that the purported absence of restrictions on abortion before a certain period was not dispositive while holding in Bruen that “[i]f gun-related conduct was permitted in early American society, it was a legal right.”71
Furthermore, the practical uncertainties of historical absence may undercut the values it supposedly serves. A higher court, presented with an argument from historical absence, may find such an argument dispositive and rest well, knowing it has ruled properly on the arguments before it.72 However, a lower court later presented with clear and convincing evidence to the contrary is left adrift. The justifications for previous reliance upon historical silence may have vanished, but the precedent remains. If arguments from historical absence may justify decisions meriting stare decisis, the practical ramifications of these once-true arguments are significant. Insofar as originalism “asks questions of the past that the past cannot answer,”73 similar concerns arise when one asks a question that the past can answer, just not on a court’s schedule.
Finally, as showcased by Citizens United v. FEC,74 unguided arguments from historical absence can undercut their own value, relegating themselves to rhetorical flair. Citizens United concerned a challenge to the Bipartisan Campaign Reform Act of 200275 (BCRA) and its ban on independent expenditures on “electioneering communication[s]” in support of a candidate by corporations and unions.76 Though the parties did not center originalist arguments,77 Justices Stevens and Scalia debated whether the First Amendment’s original understanding justified overruling Austin v. Michigan Chamber of Commerce,78 overruling a portion of McConnell v. FEC,79 and striking down a portion of the BCRA.80
In his dissent in relevant part,81 Justice Stevens assailed the majority’s “perfunctory attempt”82 to base its decision in the First Amendment’s original understanding, arguing “there [was] not a scintilla of evidence” that the Founders believed the First Amendment “would preclude regulatory distinctions based on the corporate form.”83 In his concurrence, written solely to “address Justice Stevens’ discussion of ‘[o]riginal [u]nderstandings’” of the First Amendment,84 Justice Scalia took issue with the burden of proof that Justice Stevens placed on Citizens United.85 Justice Scalia instead implied that either the government or the dissent bore the burden of showing a regulation was consistent with the amendment’s original meaning, arguing the dissent failed to “provide even an isolated statement from the founding era to the effect that corporations are not covered.”86
Without a system articulating which party carried the burden of meaning-making, these diverging arguments neutralized one another. The Justices temporarily embraced a shared understanding of the proper standard but remained at an impasse.87 Indeed, Justice Stevens expressly acknowledged Justice Scalia’s concurrence while remaining resolute in his certainty that Citizens United bore the burden of proof.88 Historical absence, without sufficient guidance, may serve as little more than a rhetorical tool.
II. Charting A Path Forward
Having laid out the complexities inherent in arguments from historical absence, this Part aims to articulate a framework that properly balances the concerns they raise and their varied justifications. Judges, especially those facing Second Amendment challenges, have their work cut out for them. As such, this framework aims to emphasize the roles best played by judges and those best left to academics. Since District of Columbia v. Heller89 first reshaped Second Amendment jurisprudence, many judges have embraced a division of labor sensitive to these diverging skillsets.90 This framework further calls for judges to recognize the challenges innate in both strong and weak reliance upon originalist precedent.
To begin, higher courts must determine and more clearly state the conditions under which they assign value to historical silence. The probative value of silence is bound to vary in different areas of constitutional interpretation,91 and no general framework can address all possible circumstances. However, higher courts have an obligation to litigants and lower courts to clarify what forms of silence are legally significant. Additionally, higher courts must more precisely articulate the logic they employ. Within originalist frameworks, a given rule is only worthwhile insofar as it reflects a defensible historical interpretation. Higher courts must articulate the role, if any, that historical absence played in the disposition of the case. This articulation, paired with a clear statement regarding the level of generality employed, will facilitate precedential clarity. Lower courts, in turn, must be more open to challenges to existing precedent that erroneously relied upon historical absence. Originalism’s implementation issues remain,92 but these adjustments provide firmer footing for arguments from historical silence.
This framework is aimed at two interrelated vices. Arguments from historical absence, despite their place in originalist argumentation, suffer from acute challenges of indeterminacy and instability. Though stare decisis remains a guiding presumption,93 courts must recognize these vices and be more amenable to scholarship challenging previous historical understandings. If reliance upon stare decisis is too strong, courts run the risk of building upon those understandings and exacerbating the error.94 If reliance is too weak, originalism will fail to serve as “a workable prescription” — the error recognized at the outset of this Note.95
A. From Higher Courts, Precision
Higher courts must craft decisions able to stand the test of time. Rather than calling for the complete embrace or disregard of historical absence, this framework encourages higher courts to more clearly develop their theoretical premises. Courts must articulate the burden of proof to which they held the parties, the degree to which an argument from historical absence influenced a given decision, and the level of generality employed.
Courts must determine why certain forms of silence are meaningful and articulate who bears the burden of proof in determining that silence is probative. As seen in Chadwick, circumstances will arise in which both parties present arguments from historical absence,96 and courts may approach this issue largely as they see fit so long as they remain faithful to vertical stare decisis.97 Take, for example, Fourth Amendment jurisprudence. Though originalists have staked an initial interpretive view on Fourth Amendment originalism,98 courts may face offensive99 and defensive100 arguments from historical absence, and no precedent requires consistent interpretive methods. As critics contend that originalism fails to serve as a neutral school of interpretation,101 judges implementing originalism carry a heavy burden. Burdens of proof may themselves be destiny,102 so courts hoping to follow through on their obligations must work to determine why and how silence matters.
Having defined which party bears the burden of meaning-making, courts must then internally determine the silence’s significance. This significance may take two forms. Arguments from historical absence may have a contributory effect (that is, if the prevailing party had not argued from historical absence, the case’s outcome would be unchanged), as was exemplified in Citizens United.103 In such circumstances, later historical challenges need not affect a decision’s precedential value, as lower courts would continue treating the decision’s nonhistorical reasoning as precedential despite error in the decision’s historical analysis. Or arguments from historical absence may have a dispositive effect (that is, if the prevailing party had not argued from historical absence, the case would have been decided differently), as has been seen in much of the modern Second Amendment regime.104 While historical absence may contribute to erroneous decisions without being dispositive, judges will more readily be able to determine that precedent should be adjusted in dispositive cases.
Relatedly, jurists must state the level of generality employed to judge particular analogies. This issue is both significant and challenging for tradition-based approaches to constitutional interpretation.105 For example, a court faced with a modern law disarming domestic abusers would not find a historical analogue at a narrow level of generality.106 However, by expanding the inquiry to include laws regulating those who are “dangerous or unvirtuous,” this issue vanishes.107 This challenge is particularly significant for arguments from historical absence. Despite the Court’s attempted intervention,108 courts may pick and choose the generality they employ without due care. What is first alleged to be silence may, upon review, simply be a particularly narrow level of generality. This Note does not purport to solve this issue, but it calls for courts to be more forthcoming regarding the standards they employ.
Wolford provides an imperfect but informative example. There, California and Hawaii attempted to defend their bans on firearm carriage in banks by analogizing to Founding-era laws concerning “‘Fairs’ and ‘Markets,’” as well as regulations of firearms in governmental buildings.109 In rejecting this argument, the court highlighted the dissimilar characteristics: Fairs and markets tend to be “dynamic” and “congested,” not sufficiently “analogous to a trip to a bank to deposit a check.”110 Furthermore, accepting the constitutionality of a ban on firearms in governmental buildings, the analogy failed “because financial institutions generally are privately owned and operated and . . . serve a . . . non-governmental purpose.”111 While there are certainly worse cases of uncertainty following Bruen,112 the Wolford court left unstated the appropriate level of generality. Though fairs and markets are dissimilar because they contain “commercial, political, and social elements,”113 any extrapolation from these negatives ultimately relies upon contestable inference. A decision structure requiring the court to more clearly lay out its analysis may provide a necessary guide to lower courts navigating evidence that may one day be persuasive.
B. From Lower Courts, Action
Having created a system that encourages clearer higher court analysis, this Note calls for lower courts to embrace an adjusted originalist role: serving as the first engagement point for challenges to previously dispositive arguments from historical absence. While this requires aggressive lower court action, the analytical framework discussed above may limit the screening required. Regardless, in a system that relies upon historical absence to justify historical conclusions, lower courts will inevitably face litigants that purport to challenge the bases of originalist precedent.
The fundamental challenge for district courts concerns the balance between vertical stare decisis and the need to correct historical inaccuracies. Vertical stare decisis, despite questions raised regarding its horizontal counterpart,114 typically garners strong support,115 creating a tension for lower courts within originalism. If one takes originalist thought seriously, lower courts may be bound to apply precedent that, based on the evidence before them, seems clearly erroneous.116 No procedure currently allows lower courts to take part in addressing this problem.
Rather than calling for a fundamental reimagining of the judicial role, this framework opts for the systemic embrace of a practice courts already pursue: narrowing from below to encourage appellate review. As defined by Professor Richard Re, narrowing from below occurs when lower courts “interpret[] [precedent] not to apply, even though [they] think that the precedent is best read to apply.”117 While unambiguous precedent forecloses the practice,118 “provocative narrowing” — narrowing from below intended to “provoke higher court review” — allows lower courts to play a more active role.119 Though the “legitimacy” of provocative narrowing is contestable in other contexts,120 it is a solution particularly well suited to address precedential arguments from historical absence.
The oft-cited stare decisis factors,121 insofar as they continue to carry weight,122 are a poor fit for the issue of erroneous claims of historical absence. At first blush, it is not apparent that historical absence warrants future deference at all.123 Even accepting some degree of deference, however, it must be limited. If deference is strong, it may invite lower courts to build upon erroneous precedent and exacerbate the harm. By contrast, properly qualified narrowing from below invites lower courts to raise potential concerns while remaining true to vertical stare decisis.
Provocative narrowing of holdings based on historical absence is appropriate when four conditions are met. First, a given precedent must be legitimately and reasonably narrowed, even if that narrowing is not necessarily its best reading. The requirements of judicial candor in the realm of precedent are nuanced.124 However, improperly distinguishing otherwise on-point precedent is inappropriate.125 Second, the case at hand must concern precedent that embraced a dispositive argument from historical absence. As noted, arguments from historical absence may raise varying levels of concern, and not all precedent may be narrowed on this ground.126 Third, this evidence must comport with the precedent’s stated level of generality. Though new evidence may be presented, courts should not be led astray by insufficiently analogous evidence. Finally, out of an abundance of caution, courts should engage in provocative narrowing only in cases of substantial evidence. In the Second Amendment context, the Court has similarly required more than a “little evidence,”127 and a presumption in favor of precedential vitality limits potential disruption. Historical absence may, theoretically, be mooted by individual pieces of evidence, but aggressive review of this nature is likely to be unworkable.
Still, questions of reliance and judicial inconsistency abound. As Professors Michael Smith and Alexander Hiland argue, one of originalism’s greatest faults is that it may invite changes to the law “with each generational update of the major corpus linguistics databases.”128 Smith and Hiland are correct: “Predictability and stability” necessarily suffer when historical understandings change.129 However, by limiting provocative narrowing to circumstances in which these four conditions are met, some concerns are ameliorated. Rather than inviting courts to overturn precedent without adequate justification, akin to flipping an originalist switch, this framework more closely resembles a one-way ratchet. Barring situations of outright academic fabrication,130 definitive proof of analogous sources will displace the previous historical absence and, with it, a decision’s justification. This will invite some precedential disturbance, but such a problem is innate in originalist implementation.
III. Applying the Framework
This Note’s pursuits have thus far been largely academic. Having shown that arguments from historical absence have already found a place in constitutional interpretation and articulated a guiding framework, this Part showcases how this framework may guide judicial decisionmaking.
A. Range v. Attorney General United States and Higher Court Precision
Range v. Attorney General United States131 (Range II) showcases the challenges embedded in guideless higher court decisionmaking. There, the court faced an as-applied challenge to 18 U.S.C. § 922(g)(1),132 a “life-long prohibition” of firearm ownership for individuals convicted of a crime punishable by imprisonment for a term exceeding one year.133 In granting Range’s as-applied challenge on Second Amendment grounds, the court clearly stated the relevant factors warranting the exception.134 The Range II court and courts facing Second Amendment challenges have a slightly easier task, as the Court in Bruen articulated the presumptive analytical burdens and the dispositive effect of historical absence.135 As such, courts must primarily engage with the level of generality challenge, clarifying the standards to which they hold litigants.
By focusing primarily on the insufficiency of the evidence before it, the Range II court fell short of this obligation. The court held that three forms of evidence were inadequate. First, evidence concerning limitations on firearm ownership for certain classes of Americans was unpersuasive, as these regulations either would now violate other constitutional provisions (such as those “based on race and religion”) or were based on “reasonabl[e] fear[]” of armed rebellion (such as colonists’ fear of an uprising of British Loyalists).136 Second, evidence of dissimilar punishment — say, “the Founding-era practice of punishing some nonviolent crimes with death” — was insufficient.137 Third, evidence of Founding-era disarmament was unconvincing, as it required only that the felon “forfeit[] . . . the specific weapon used” in the crime “without affecting the perpetrator’s right to keep and bear arms generally.”138 This articulation leaves future jurists to wonder what may have moved the analytical needle.
This Note’s framework does not require the Range II court to have envisioned all potentially persuasive alternative evidence. However, it would encourage the court to articulate the kinds of evidence that may have been sufficiently persuasive.139 Whether it be permanent restrictions on property ownership for minor offenses or restrictions that affected an individual beyond the enforcement necessary to redress the particular crime alleged, the court failed to articulate more clearly the level of generality it employed.
Higher courts will likely find aspects of this exercise challenging. However, those challenges undergird a system that recognizes gaps in knowledge without elevating those gaps beyond necessity. The Range II court has enshrined historical absence into law for an indeterminate future, with lower courts being told of only three kinds of insufficient evidence. Rather than permitting this uncertainty, this Note’s framework would have required more work from the court in the first instance.
B. A Play on Duncan v. Bonta and Lower Court Action
Duncan v. Bonta140 highlights the need for lower court engagement. Decided mere months before Bruen, Duncan concerned a challenge to California Penal Code § 32310,141 which prohibits possession of magazines able to hold more than ten rounds of ammunition.142 As Professor Allison Orr Larsen notes, the majority “mostly avoid[ed] history-and-tradition analysis.”143 However, writing in dissent and joined by two judges, Judge Bumatay drew heavily from history, emphasizing that there were “no longstanding prohibitions against” “[f]irearms and magazines capable of firing more than ten rounds.”144 Though Judge Bumatay’s view has yet to win the day, it has caught the attention of at least one jurist outside the Ninth Circuit.145
As Larsen notes, though, Professor Robert Spitzer has complicated Judge Bumatay’s view.146 Writing two years after Duncan, Spitzer argues that this historical silence was meaningless, as “available, affordable, [and] reliable multi-shot firearm[s]” did not exist until the “multi-shot revolver” in the 1830s.147 Rather, the historical record suggests that any earlier multi-shot firearms were exceedingly uncommon or never actually produced.148
Suppose that Judge Bumatay had won the day — a not-implausible possibility considering the majority’s avoidance of history and tradition.149 If California then attempts to defend new legislation limiting access to large-capacity magazines by drawing from Spitzer’s work, lower courts must turn to the framework. Assuming its four factors are met, the lower court may permissibly limit Duncan’s applicability. Duncan itself invites various possibilities: The statute at issue criminalized receipt, purchase, and possession of large-capacity magazines; it lacked a grandfather clause; and it left Californians with relatively few paths forward.150 Though California could not defend an otherwise identical statute, this framework invites lower court action in the face of persuasive historical evidence.
Conclusion
Originalism’s implementation issues remain difficult to resolve. Arguments from historical absence, both necessary and perilous for originalist interpretation, embody many of these concerns. Questions of stare decisis, levels of generality, and burdens of proof abound, and they do not have easy answers. This Note calls for courts to be forthcoming about the standards to which they hold litigants when historical absence is employed: Courts must articulate what matters, why it matters, and whom they expect to carry a given burden.
The proposed framework calls for modest developments in judicial reasoning. Though it may bring with it certain pitfalls, a framework that recognizes the limitations innate in the disposition of a case on a truncated timeline may nonetheless be worthwhile. As it stands, the current system of ad hoc analysis will not be able to withstand future developments in historical understanding. Accepting that originalism is premised upon accuracy to a moment in time, courts may only pursue such a goal through procedures that recognize the knowledge we lack.