At SCOTUSblog, Haley Proctor (Notre Dame): Are judges good historians? From the introduction:
Three years ago in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court announced a two-step test for Second Amendment challenges. A court must first ask whether the Second Amendment’s plain text covers the conduct in which the challenger wishes to engage. If it does, then the burden shifts to the government to show that its regulation of that conduct “is consistent with the Nation’s historical tradition of firearm regulation.”
Some have criticized Bruen’s test on the ground that it places an unreasonable burden on judges who must adjudicate Second Amendment challenges. For example, in his Bruen dissent, Justice Stephen Breyer called the test “deeply impractical. … Courts are, after all, staffed by lawyers, not historians.” Lower courts have taken up the lament. In one well-publicized opinion, Judge Carlton Reeves of the U.S. District Court for the Southern District of Mississippi complained that he and his colleagues on the bench “lack both the methodological and substantive knowledge that historians possess.” And the “sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform.”
Hence the question at the start of this post: are judges good historians?
My suggestion in this column is that this is not the right question to ask. After all, judges are not historians. They are, as Breyer pointed out, lawyers. And as Reeves says, the “sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform.” Asking whether judges are good historians is a bit like asking whether a postman is a good racecar driver. Racecar drivers and postmen alike operate motor vehicles, but their objectives, and the methods by which they achieve those objectives, are different.
And from later on:
The difficulty with originalism, according to its critics, is that the further back a judge looks, the fuzzier his vision becomes. It is easier to see 10 months or even 10 years into the past than it is to see 20 times 10 years. When the question is “What law was created in 1791?” the honest answer will sometimes be, “I’m not sure.”
What is the scale of this problem? And what should we do about it?
According to originalists, the distinction between the role of a judge and the role of a historian makes a difference on both fronts. First, it minimizes the scale of the problem. Evidence of the law is fairly durable and, even if the sands of time deprive law’s lines of some of their original sharpness, law will continue to supply the necessary answers in most cases. Second, unlike historians, judges must decide cases, even in the face of uncertainty. On the whole, originalists prefer an approach that limits the judge who is saying “what should have happened” to whatever he can learn from history.
Second Amendment litigation illustrates both points. …
Posted at 6:06 AM