Larsen, “Is History Precedent?”

Alli Orr Larsen, Is History Precedent?

Solum’s Download of the Week for March 8, 2025. Available on SSRN.

This is a synthetic academic workshop generated using enTalkenator.

Abstract: “It has been just over two years since the Supreme Court instructed lower courts to evaluate Second Amendment challenges by examining history and tradition.  And it is no secret that the courts have struggled.  This article tackles a phenomenon that is born out of that struggle.  Overwhelmed by the task of evaluating historical claims, lower courts instead are turning to other judges as authorities on history.  They are using what I call in this article, “historical precedents” – meaning language about history from an older decision that the second judge then treats as authority, not as part of the legal rule but as truth of the matter asserted. This practice presents a very interesting puzzle: once the Supreme Court blesses a historical source or a historical narrative, does that conclusion – in and of itself – bind other courts to the same answer about what happened in the past?

The question is more than just an academic head scratcher.  It creates significant practical concerns.  The Supreme Court is not designed to be a factfinding institution, nor are the Justices trained historians.  They can make mistakes, or our understanding of the history can change, and in any event some language that recites historical claims – particularly when appearing in separate opinions – is not contemplated with the kind of spotlight and scrutiny that comes when a legal rule is debated.  These realities make entrenching historical precedents throughout the judicial hierarchy a risky endeavor.

To be sure, lower court judges are in a tight spot when it comes to managing Second Amendment litigation, and this article seeks to help.  I assume a good-faith judge trying to comply with the Supreme Court’s instructions and tempted to clear issues off the docket by citing someone else’s answers to an historical question.  That short-cut is not always appropriate. Not all historical claims are the same, nor were they all similarly thought-through by the first decision-maker.  We must look under the hood, so to speak, before accepting the work and the conclusion as truth.  Ultimately my goal in this article is to draw attention to an unappreciated real-world consequence of the Supreme Court’s turn to history and tradition, and to begin the task of reckoning with it.”