Second Amendment Roundup: The Second Amendment Dialogue at Fed Soc’s National Convention
“Applying the Text and History Methodology to Looming Second Amendment Battles After Rahimi” was the topic of a session on November 16 at the Federalist Society’s 2024 National Lawyers Convention. You can listen to the remarks here.
The moderator was Sixth Circuit Judge Amul Thapar, author of the delightful book The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him. The panel featured three leading voices in the Second Amendment space.
Speaker Mark W. Smith is a Senior Fellow at the Ave Maria School of Law and Host of the Four Boxes Diner Second Amendment Channel. (That refers to the four boxes of American liberty, the soap box, ballot box, jury box, and cartridge box.)
Smith focused on the text first-history second approach applied by the Supreme Court in Heller and elaborated in Bruen. As the Supreme Court has now taught in some detail in both Bruen and Rahimi, the historical work of understanding the Second Amendment involves examining laws that impacted the right to keep and bear arms historically and asking both “how” and “why” those laws limited the right. Then, as Rahimi makes clear, the question is whether the “principle” underlying those historical laws—the synthesis of “how” and “why” they regulated the right while remaining consistent with it—would, today, justify whatever modern firearm law is at issue in ongoing litigation.
The key question, as Justice Barrett mentioned in her concurrence in Rahimi, and about which Smith spoke at the conference, is what level of generality is the right one to draw these principles? Rahimi itself shows that error lies on either extreme—the Fifth Circuit drew its analogies too narrowly and required a “historical twin,” while the government in Rahimi pushed for a rule that would swallow the Amendment whol
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