Constitutional Law Blog Essay

“Lineal Descendant” Analysis in Second Amendment Litigation

Second Amendment doctrine—perhaps more than any other constitutional right save the Seventh Amendment civil jury—has become intensely preoccupied with genealogy. Ever since Chief Justice John Roberts in District of Columbia v. Heller remarked during oral argument (almost to himself) that, just as there appears to be “lineal descendants” of colonial-era weaponry, there could be “lineal descendants” of gun regulations, the Second Amendment bar have all become antiquarians. 

Today, gun rights advocates trundle out esoterica like an English patent from 1718 for a multi-shot “Puckle Gun” (which apparently was never widely produced) to show that twenty-first century high-capacity magazines are protected by the Second Amendment. Gun safety advocates, on the other hand, try to show how today’s minors or domestic violence misdemeanants fail to possess the requisite “virtue”—by 18th century standards—to claim a right to possess firearms. To foreign observers mystified by American gun culture and appalled by our relentless reports of gun violence, the entire exercise must look hopelessly bizarre. 

The latest skirmish over Second Amendment genealogy is the Ninth Circuit’s March 24, 2021 en banc decision in Young v. Hawaii. At issue in Young was whether Hawaii’s statutory requirement that an applicant show good cause to obtain a license to publicly carry a firearm violated the Second Amendment. The opinions, a majority and two dissents, stretch 215 pages. Judge Jay Bybee, a George W. Bush appointee, wrote the opinion for the majority of a 7-4 court upholding the regulation.  

He begins the opinion by noting that the predominant two-step framework for Second Amendment analysis starts with history and then transitions into some kind of tailoring or means-end scrutiny (often, but not exclusively, intermediate scrutiny). He also finds that sister circuits have been giving the historical analysis short shrift: either assuming it away or concluding it’s inscrutable and then conducting a more conventional tailoring analysis. By contrast, Judge Bybee declares: “We do not think we can avoid the historical record. Heller relied heavily on history, and we do not think that it exhausted all subsequent need to confront our history in resolving challenges to other firearm regulations.”  

Then follows a meticulous examination of seven centuries of Anglo-American regulation of public weapons: beginning with King Edward I’s 1299 order to the sheriffs of Salop and Stafford to arrest anyone “going armed” without a license and ending with Hawaii’s 2018 Attorney General Order interpreting the state’s 1961 requirement that a person show “urgency” and “need” to protect life and property in order to obtain a license to carry a handgun openly. (Hawaii regulates concealed carry through a different, but similar, “may issue” provision.) In between are forays into well-known cases (to gun-rights scholars) such as the 1686 English case Rex v. Knight and the 1822 American case Bliss v. Kentucky, as well as lesser known ones like the 1615 King’s Bench case of Chune v. Piott.  

The result is a “basic rule” described thus:

Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square. History is messy and, as we anticipated, the record is not uniform, but the overwhelming evidence from the states’ constitutions and statutes, the cases, and the commentaries confirms that we have never assumed that individuals have an unfettered right to carry weapons in public spaces.

To the extent Young claimed that a requirement to show need before obtaining a carry permit facially violated the Second Amendment, seven hundred years of history said he was wrong.

I’m on the record as saying that originalism of this sort is devilishly hard to do as a lower court judge in a hierarchical system. But I give Judge Bybee his due—if a lower court has to engage in historical investigation after Heller, this is how you have to do it.   

First, you can’t trim. Judge Diarmuid O’Scannlain’s dissent in Young is of a piece with a prior vacated panel opinion of his, Peruta v. San Diego, in which he slices the history of gun regulation into Heller-compliant and Heller non-compliant history. Heller-complaint history is those regulations, cases, and other materials that confirm Heller’s holding that the right is for individual purposes like self-defense. Heller non-compliant history is everything else. Whatever the latter is, as Judge Bybee says, “it is not history.” Frankly, I remain puzzled why Judge O’Scannlain thinks an investigation into history is necessary at all. If Heller has the answers the circuits are bound to follow, and if no history that contradicts Heller is relevant, the answer would be to parse the words of Heller; not the Second Amendment’s, and not the history surrounding firearm regulation. (I reserve judgment on where desuetude applies in this analysis.)

Second, you have to look for some kind of principle, some animating purpose or theme to the history. This is where the “lineal descendant” metaphor often leads courts astray. As my colleague Joseph Blocher has often remarked, neither guns nor regulations have genes. You can’t trace some kind of physical DNA through generations of firearms or laws. All you can do is look for some “rule of relevance” to say that one thing is relevantly similar to another. In Young, that rule of relevance was that the sovereign authority to keep the peace remains with the state. Public arms bearing as a matter of right is a threat to that peace, because, as the Rex v. Knight court noted back in 1686, it suggests the state is unwilling or unable to perform the core function of the social compact—the equitable and impartial protection of all from the self-interested judgment of each. 

Third, the genealogy has to occur on both sides of the rights/regulation equation. Too often, gun rights advocates look for broad family resemblances when it comes to which firearms fall within Second Amendment coverage—like large capacity magazines or assault rifles—but then demand an identical twin when it comes to regulations. Young demonstrates that the comparisons operate at a similar level of generality on both sides of the right/regulation question. Large capacity magazines may be constitutional “arms” because devices had similar features through history; but modern regulations—like may-issue licensing—are equally constitutional when they have similar functional features as historical regulations.

Young is notable for the comprehensiveness of its history and for the conservative bona fides of its author. Whether it stands for more than that depends how it’s received—if at all—by the Supreme Court. That said, if the Justices are serious about building a Second Amendment doctrine that privileges history above other “modalities” of constitutional reasoning, and if they’re looking to lower courts for proof that such a thoroughly originalist opinion is possible, then Judge Bybee’s seven-century survey shows them two things—it can be done, and it won’t be easy.