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The History and Tradition of Inconsistency: An Analysis of the Supreme Court’s Historical and Traditional Test

by Ian McGough

Introduction

Throughout the history of the United States of America, the nation has undergone immense changes in our governmental functions and duties allocated by the Constitution. We have abolished slavery, granted women suffrage, and after long and lengthy legal battles, granted equal rights to marginalized groups and healthcare protections. Arguably, the beauty of the United States and its constitution is that it can change, and we experience a higher quality of life and many more freedoms than our ancestors even one hundred years ago. However, things are beginning to change.

In 2022, the Supreme Court released a decision that fundamentally changed the discussion of gun control legislation. In New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S.1 (2022), the Supreme Court struck down a New York gun control measure citing it did not align with the nation’s historical traditions. The same philosophy was also applied during Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), the controversial decision to eliminate a constitutional right to abortion, a precedent that had stood since 1973. The historical and traditional test has given the Supreme Court a lot of leeway in deciding these issues, much to the dismay of modern lawmakers and citizens who may see the Supreme Court as overly conservative. Given that the emergence of this test is a recent phenomenon and only formalized in the Supreme Court, is the Supreme Court’s historical and traditional test feasible for objective interpretation for future courts?

I. NYSRPA v. Bruen

The test first emerged in New York State Rifle and Pistol Association v. Bruen, 597 U.S. 1 (2022), a law that challenged the long-standing Sullivan Act, a New York law requiring those with concealed carry firearms permits to show a “special cause” distinct from the public. A ­­­­lawsuit was filed by the NYSRPA, who represented Robert Nash and Brandon Koch, who claimed the Sullivan Act was overly discretionary and denied citizens their Second Amendment rights. Nash was denied a concealed carry permit after applying to combat a string of robberies in his neighborhood due to the state finding no special cause for self-defense.

When brought before the Supreme Court, a 6-3 decision struck down the Sullivan Act, citing that the law did not align with the history and traditions of the founding of the country. The Supreme Court also decreed that modern legislation must look to the nation’s history when drafting new gun control measures, as it must not violate the original meaning and text of the Second Amendment.1 This is significant because, “Under Bruen’s rule, the government cannot successfully defend a contemporary law implicating the Second Amendment unless it finds analogous laws enacted at the relevant time in American history. This test means that the dead hands of the past bind not just through their actions but through their omissions. If the nation’s Founding generations declined to act, without regard to the grounds or reasons for their inaction, then contemporary lawmakers are shackled.”2

The Bruen decision was a major blow for modern gun control measures, as it seemed to be a complete reversal of the recent trends of supporting stricter measures of legislation. Not only was over one hundred years of New York gun control legislation overturned overnight, but going forward, the Supreme Court declared that newer laws must be aligned with the plain, historical text of the Second Amendment, which states, “A well regulated militia, being necessary to the security of the free state, the right of the people to keep and bear arms shall not be infringed.”3

The rationale provided in the decision directly references a new History and Tradition Test. The test is less of a prong test like the Schempp Test for religious freedoms or the Miller Test for determining obscenity and more of a framework doctrine prioritizing the historical traditions and practices present throughout America’s founding and prior precedent. The basis of this test is analyzing the concept of stare decisis. Stare decisis is defined as the legal doctrine that promotes the idea of legal precedent. Since the country’s formation, stare decisis is a foundational principle within our legal system, as it provides a predictable, consistent, and guided outcome in ruling similar cases. However, since enacting this test in 2022, there has been a noticeable shift away from this doctrine.

The Bruen decision provides little to no support for the lower courts and bases itself on a history that is dubious at best. Bruen’s decision is certain on where and when to look but is insufficient in substance. Modern gun control measures are based upon previous enforcements such as the Brady Act of 1993, which mandates background checks, and the National Firearms Act of 1934, which allows the federal government to require all manufactured guns to be registered with the federal government. When compared with the plain text of the Constitution, technically both can be argued as “infringements” of the Second Amendment. It creates further complications with the creation and enforcement of modern firearm legislation, as many weapons like the AR-15 and the Glock 17 were not created until the late twentieth century. The very difference in firepower shows that an overreliance on history is likely to lead to disaster. By once again shifting away from the stare decisis of numerous court decisions and instead interpreting the statute as it was originally ratified in 1791, the courts will likely become powerless to enact public policy due to the failure to acknowledge two hundred thirty years’ worth of changes in legislative history.

However, the Bruen case is not a clear-cut failure, as Justices Brett Kavanaugh and Clarence Thomas both point to the decision made in District of Columbia v. Heller, 554 U.S. 570 (2008), claiming that the Second Amendment is all-encompassing, not only regulating militias but also private domiciles. This approach in using this historical and traditional test is sound, as it prioritizes originalism and precedent that has been consistently followed throughout history and aligns with the traditional enforcement in the law. It is easier to explain rationale from almost twenty years ago than two hundred. However, for limited strengths in the Bruen decision, there is a larger issue at hand when this test stretches beyond the scope of the Second Amendment.

II. Dobbs v. Jackson Women’s Health Organization

Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) was a lawsuit intended to counter a Mississippi law that outlawed abortion apart from select, highly specific circumstances. The Jackson Women’s Health Organization sued, citing that this violated the constitutional right to abortion provided in the ruling of Roe v. Wade (1973) under the implied protections of the Fourteenth Amendment. That ruling stemmed from anti-abortion legislation in Texas, which is where the Fourteenth Amendment’s “right to privacy” was first implied. The ruling of Roe v. Wade was later expanded upon in Casey v. Planned Parenthood (1992), which somewhat weakened the prior ruling, but still maintained abortion as a constitutional right and is to be protected at the federal level. Despite this, in an infamous 5-4 ruling, the Supreme Court overturned Roe v. Wade (1973) which stood as legal precedent for almost fifty years with the Dobbs decision.

What is interesting about the Dobbs decision is that it not only overturns longstanding precedent on the grounds that a constitutional right to abortion was never explicitly listed, but it also does not provide any support for the lower courts on why. The case itself reviewed Mississippi’s Gestational-Age Act, which banned abortion after fifteen weeks of pregnancy, just after the end of the first trimester. This trimester doctrine was only popularized after the Roe v. Wade decision and additionally replaced in Planned Parenthood v. Casey, 505 U.S. 833 (1992) with the “undue burden standard,” which was argued to be protected under the Fourteenth Amendment’s implied right to privacy.4

Supreme Court Justice Samuel Alito applied the historical and traditional test in comparison to the original intent of the Fourteenth Amendment as written in 1868. However, in his commentary, he also stated that the Fourteenth Amendment has been “held to guarantee some rights that are not mentioned in the Constitution”.5 This was the thought process used in the original ruling of Roe v. Wade (1973). However, the selective process of prioritizing originalism as interpreting the 1868 meaning of the statute when in comparison with the fifty-year precedent established by Roe v. Wade makes interpretation for lower courts confusing. Solum and Barnett state:

“ …if Justice Alito was simply attempting to identify a longstanding tradition of criminalizing abortion as a means of demonstrating that it cannot be a fundamental right, there is no reason why the state of the law in 1868 would be particularly [important]. The year 1868 is [important] if the question is whether a right to abortion is a “fundamental” right protected either by the original meaning of “liberty” in the Due Process of Law Clause or as a “privilege or immunity” of citizenship, and if historical practices establish the existence of such a right. But if this is what Justice Alito is seeking, he must be clearer about which clause he is interpreting; and, if he is taking the originalist approach, there is no reason to continue to trace the protection of this right—or lack thereof—up to 1973. Doing that sends mixed signals to readers.”6

The ruling is further complicated by where this selective history comes from. In the formal docket provided by the Supreme Court, Alito focuses on “quickening,” which can be defined as the time where the mother first feels the movement of the fetus. In Medieval Times, quickening was seen as the moment where the soul first enters the body and thus, killing of this unborn fetus was the same as homicide. More specifically, Alito cites Henry de Bracton, an English Cleric from the 1200s, saying that a Kansas law continued this tradition and makes a dubious correlation that de Bracton’s writings on medieval abortions serve as American precedent.

Since the United States has only existed for two hundred fifty years and the modern English kingdom only emerged after the Wars of the Roses in the Fifteenth Century, Alito’s citation to a law from a country that no longer exists is troubling. The “History and Tradition” of the United States is not limited to the Constitution, but to whatever came before that. While in some cases, this may be true, the belief that the United States is able to cite historical traditions from over eight hundred years ago to enact modern legislation not only stagnates progress but also provides dangerous opportunities for fundamental rights and freedoms to be limited as well. Without a limit on what is acceptable to stand as “American” precedent, laws from a time before the Age of Enlightenment are equally as powerful as legislation enacted in the last year.

In the days that followed the Dobbs decision, several states passed abortion bans, but other states such as New Jersey and California, remained abortion safe states. While abortion is not a protected right under the Constitution any longer, the depth that the law can restrict abortion rights is unclear. This past year, the Attorney General of Texas attempted to implement a system that would allow for lawsuits against what was known as “abortion tourism,” which is an instance where residents of a state that has outlawed the procedure will travel and undergo the process in a protected state. This scenario was made prevalent in the 2024, where a Texas man filed a lawsuit seeking wrongful death claims for his unborn child against his ex-girlfriend who supposedly traveled to Colorado for an abortion.7 This begs the question of whether there can be punitive charges brought forth for individuals who travel out of state for abortion procedures.

According to doctrines from centuries ago, punitive charges could be brought upon those who left their designated lands at the discretion of kings and local lords, which often led to peasant revolts. However, these same restrictions on free movement are unconstitutional as the First, Fourth, Fifth, and Fourteenth Amendments implicitly imply this freedom from government overreach. By restricting fundamental rights of movement, who is to say that other implied rights are not equally as subjected to legislative penalties? As the decision behind Roe v. Wade had its basis in contraceptive rights for women, does the loose interpretation allow for a return to legislation that dominated the 1960s in outlawing contraceptives?

Overall, Alito is not an originalist in his analysis as he has taken liberties with interpretation. He bases his interpretation of the Fourteenth Amendment of the Constitution in foreign history, specifically from a kingdom that altered so drastically in between the time he cites and when Alito wrote his opinion, that the two nations do not even share the same form of government. Ignoring this loose interpretation of history, Alito contradicts his own point. If his analysis is that the Fourteenth Amendment does imply the existence of additional rights unlisted, then abortion could rationally be included in those rights. However, if Alito specifically targets abortion as not being protected within the Fourteenth Amendment, then one could rationally assume that the other rights Alito mentions are simply a fabrication of his own mind and morals, and that he is choosing which ones to prioritize, if they exist at all.

III. Kennedy v. Bremerton School District

The dangers of the test are revealed in Kennedy v. Bremerton School District, 597 U.S. 507 (2022). Petitioner Joseph Kennedy, a high school football coach, sued the school district of Bremerton, Washington after his contract was not renewed by the school. The school board claimed that Kennedy had begun praying immediately after the conclusions of home games on the fifty-yard line. After other players began to join him, the district cited it as a violation of the Establishment Clause in the First Amendment, claiming that if the public showcases were allowed to continue the grounds of a public school, it could be seen as promotion of that religion. Meanwhile, Kennedy believed his religious rights were being infringed upon as was protected in the Free Exercise Clause as it was a private practice which he conducted alone. He claimed that his players had freely joined him and were not being forced to do so. In a 6-3 decision, the Supreme Court ruled in favor of Kennedy, throwing out the long-standing Lemon Test in favor of the History and Tradition Test.8

This is where the problems truly begin. While historical practices and stare decisis could justify the Bruen decision, the Dobbs decision is less justifiable, and the Kennedy decision is the first one to showcase the true extent this test can stretch the truth. As outlined by Justice Neil Gorsuch:

“In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings. The line that courts and governments must draw between the permissible and the impermissible has to accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers”9

The issue here is that the Supreme Court has fabricated their own history. The phrase “separation of church and state” originates from Thomas Jefferson, a Founding Father. By creating a fictional notion that the Founding Fathers wished for the practice of religion to become entangled in the public sector as seen in Kennedy v. Bremerton School District (2022), and justified the decision in a previously cited case Town of Greece v. Galloway, 572 U.S. 565 (2014), the Supreme Court has taken liberties unafforded to them and abandoned stare decisis entirely. Not only does this cause chaos for the lower courts as they are now backlogged and cannot rely on the common law system that predates them as historical precedent is in flux.

IV. The Domino Effect

While the Supreme Court is no stranger to overturning long-standing precedent, there are glaring issues between the rationale in all primary cases where the test was used in the 2022 term. Dobbs, as previously stated, pulls from histories and traditions that are dubious in connection with American jurisprudence. Bruen, while the most justifiable of the decisions, is too overly broad and creates vagueness within the court systems when interpreting the Second Amendment. Kennedy abandons originalism in the constitution for the perceived values of the time, with selective history emerging as a chief issue as historical perception becomes pervasive. The historical test in the 2022 term and onward relies on the specific interpretations of American history by the individual justices themselves. This, in turn, leaves the court open to misinterpretation and an overreliance on perception rather than living jurisprudence. That is without mentioning the different interpretations of history, making nearly every case individualistic and abandoning the American principle of objective law and equality. So, while its birth may have been controversial, can the test withstand the passing of time?

For this, we look to United States v. Rahimi, 602 U.S. 680 (2024), a case in which the Supreme Court, after the Bruen decision, was forced to decide whether a Texas State Court could prevent and prohibit a suspect in a domestic violence case from owning a firearm. The test, established in Bruen, would have gone against this action. However, in an 8-1 Decision, the Supreme Court upheld the Texas State law, preventing Rahimi from owning a firearm.

What is interesting about the Rahimi case is not the overwhelming majority or the proof that the History and Tradition Test has failed, but Clarence Thomas’ dissent, where he says:

“After New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a single historical regulation justifies the statute at issue, 18 U.S.C. § 922(g)(8) (2022). Therefore, I respectfully dissent”10

Within a year of controversial decisions, the test was rendered ineffective as the proper ruling, according to this test, sided with Justice Thomas’ opinion. However, Bruen relies too heavily on the original text of the Constitution, which renders most modern legislation obsolete and limits the scope in which different agencies can operate. Therefore, there is no possible way the test would have survived in a case such as Rihimi’s or anything like it. The belief that if something is missing from the Constitution, that it cannot be regulated goes back to the Tenth Amendment, where rights are given to the States, and thus, the people. However, if those decisions are superseded by the United States Supreme Court, then it only creates more confusion on what is and is not constitutionally viable. The Rahimi decision showcases the flaws with the test as it ignores standards that went unaccounted for in historical times, especially since the movements of Women’s Suffrage and the ongoing battles for equality.

Meanwhile, the Dobbs decision relies on legislation from a much later time from when the Constitution was originally written and instead relies on “original values.” The Fourteenth Amendment was ratified in 1868, a time before women could vote and nearly a century before women did not need permission in most states from a male authority figure to enjoy basic freedoms like buying a home or applying for a credit card. By implying that the Fourteenth Amendment does hold additional rights, but not those for women, forces a constitutional conundrum in which the Constitution itself becomes a self-contradicting document, open to interpretation by every individual judge that comes across it. Prior precedent becomes completely irrelevant. Let us not forget that the court also pulled from Thirteenth Century England to reinforce anti-abortion views as well, making American jurisprudence ineffective when using this test. The Dobbs decision is easily the most consequential of the three.

Kennedy, in contrast to both, has no history to compare to. The Founding Fathers, despite what Gorsuch’s opinion may say, do not reinforce the entanglement of religious practices and public sectors. The very thought that they would have or did is historically incorrect. By fabricating history, anything and everything would pass this test.

V. The Elephant in the Room

Ironically, all stances align with the current values of the conservative Republican party and while the Supreme Court is no stranger to partisan politics, an official stance that provides inconsistent judgement rationale that just so happens to align with one political agenda, is incredibly alarming. While partisanship for the judicial branch is not uncommon, the selective processes in which long-standing precedent is overturned using old legislation that has been disproved or previously rendered null and void is. With all decisions falling alongside the same six to three differences, the open interpretation for lower courts ultimately rests on the partisanship of the agency itself. Overturning abortion was a large part of the Republican agenda, as was overturning gun control legislation.

Although both decisions came during Joe Biden’s presidency, this is essentially the beginning of a large internal power struggle between all branches of the federal government and perhaps among the states depending on political affiliation. As the Supreme Court would additionally go back to overturn the Heroes Act of 2005 and resort back to the Major Questions Doctrine in Biden v. Nebraska, 600 U.S. 477 (2023), essentially shooting the Democratic plan to absolve student loan debt dead in the water.11

Partisanship for the Supreme Court contributes to the larger problem facing America today: The lack of trust in the American government. Since President Donald Trump nominated three Supreme Court justices during his first term, the most since Ronald Reagan in the 1980s, the Supreme Court has noticeably shifted to the political right. As the current Trump administration is often met with controversy including but not limited to their executive orders, judicial rulings, and law enforcement, faith in an unbiased Supreme Court is dwindling. While some argue that a Supreme Court that aligns with the values of the government can improve productivity and possibly be beneficial, a majority believes that the Supreme Court will look to preserve the individual agendas of the party rather than preserve democracy and interpret the law without bias.12

VI. The Solution

After careful analysis, there could be a simple way to fix this: Abandon the test and repair the damage. There are problems with every decision as they have been made thus far. The Bruen decision is the least problematic as it directly relies on the Second Amendment, which was a part of the Bill of Rights. While the Bruen decision is clearer in historical precedent and is a great exhibition of originalism, citing cases like District of Columbia v. Heller (2008), the consequences of the Bruen decision are much more tangible. Modern gun control measures will not be able to keep up as the term “shall not be infringed,” directly counters any possible laws put in place. However, the Bruen decision is not mutually exclusive to decisions that follow as after the Rihimi decision, the test was slightly amended when used in the context of the Second Amendment. The metaphorical can of worms that was opened under the Bruen decision is not incapable of being closed, although in the meantime, it creates a riskier, more dangerous impact as it not only strips the rights from states to regulate weapons under their own territories but also creates a clear and present danger for ordinary citizens. While controversial, the Bruen decision can arguably stand as an acceptable decision, regardless of if the test exists or not, making it the strongest of the three.

The Dobbs decision is rooted in historical norms but falls into a fallacy of a united singular American culture with a singular belief. The beauty of the United States is that it incorporates a mix of all kinds of people, even in the borders of a small individual state like New Jersey. However, with varying viewpoints, controversial topics such as abortion rights cannot be oversimplified with rationale that may not be American in origin. While returning abortion rights to the states under the Tenth Amendment due to abortion not listed as a right is acceptable in some legal circles as an argument, the history in which the Supreme Court pulled from should not be. The Thirteenth Century is over eight-hundred years ago and was a time when the term “America” did not exist, as that would come three hundred years later. By pulling precedent from dead empires, practice of American jurisprudence becomes endangered. Therefore, based upon rationale, the Dobbs decision is likely a middle ground with other arguments standing for the overturning of Roe v. Wade, but unlikely to do so based upon true American precedent.

The Kennedy decision is dangerous. Not because religious freedom is an undesirable trait, but because the Kennedy decision relies on a history that does not exist. There is no possible way that without the History and Tradition Test misrepresenting the truths of the time, that the Kennedy decision stands. Thomas Jefferson first coined the phrase “separation of church and state” in letters to Baptist practitioners in Connecticut in 1802. It was further spread by John Locke, one of the greatest philosophers of the Age of Enlightenment. By erasing how history truly unfolded, the Supreme Court places itself in a unique position of power. Without the test, the Kennedy decision does not survive, which is, in its own way, a return to the stare decisis we hold so dearly.

VII. Conclusion

The unfortunate truth of the matter is that the History and Tradition Test still stand as modern precedent. The lack of direction on how the statutes are to be interpreted moving forward provides unchecked freedom to the lower courts, all of which will result in questions regarding constitutionality later. However, without proper guidance, rulings are significantly slowed. As previously stated, Texas, a state who has since outlawed abortion in its entirety, is currently attempting to pass legislation regarding “abortion tourism.” While cases of this scenario occurring are few and far between, the constitutional question of freedom of movement is likely to emerge in the coming future, and with this test in place, the outcome of such a case is uncertain. This will no doubt become prevalent in other constitutional questions as well and there is no guarantee whether established precedent and rights will be preserved or overturned.

In the question of whether the historical and traditional test is viable for objective opinions in the lower courts, the evidence provided shows glaring difficulties in the foundations of the test. The mass confusion that this test creates far outweighs the probative value that the test supposedly provides. When used in Dobbs v. Jackson Women’s Health Organization (2022) New York State Rifle and Pistol Ass’n v. Bruen (2022), and Kennedy v. Bremerton School District (2022), the test used vastly different rationales to justify overturning extremely high regarded and protected precedents. Furthermore, the same voting record and the same political agenda benefitting from the use of this test prove that it cannot be used unobjectively. Therefore, the safest option for the Supreme Court is to simply disregard the test as it cannot meet the standards of which it was designed.

Notes

  1. New York State Rifle & Pistol Ass’n Inc. v. Bruen, 597 U.S. 1 (2022)
  2. Charles, J. D. (2023). The dead hand of a silent past: Bruen, gun rights, and the shackles of history. Duke LJ, 73, 67.
  3. U.S. Const. amend. II
  4. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022)
  5. Randy E. Barnett and Lawrence B. Solum, Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev. 433 (2023)
  6. Randy E. Barnett and Lawrence B. Solum, Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev. 433 (2023)
  7. Davis v. Vess, Docket No. 31228, 21st District of Texas (2024)
  8. Kennedy v. Bremerton School District, 597 U.S. 507 (2022)
  9. See above
  10. United States v. Rahimi, 602 U.S. 680 (2024)
  11. Biden v. Nebraska, 600 U.S. 477
  12. Lee Epstein, Partisanship “All the Way down” on the U.S. Supreme Court, 51 Pepp. L. Rev. 489 (April 2024).