The Constraining Effect of “History and Tradition”:
A Test

Forthcoming in the Annals of the American Academy of Political and Social Science

Rebecca L. Brown, University of Southern California
Lee Epstein, Washington University in St. Louis
Mitu Gulati, University of Virginia

Abstract
The U.S. Supreme Court’s embrace of originalism, and particularly the “history and tradition” method of interpreting constitutional text, is often justified by its defenders as constraining judges from making up the law to match their preferences. Two Second Amendment cases (Heller in 2008 and Bruen in 2022), where the Court switched methodologies, provide a vehicle to test the debated question.  Analyzing data from federal court decisions on gun rights spanning 2000 to 2023, we find that the switch from a means-ends to a history-tradition methodology corresponds with an increase in judicial discretion.  Personal factors like partisan identity, gender, race and careerist considerations shape judicial behavior in the post-Bruen era in ways they did not under the prior regime. The results challenge the notion that a historical approach provides a neutral constraint on judicial discretion

Click here for the paper (on ssrn). Article will be posted soon.

Keywords: originalism, Second Amendment, guns, Heller, Bruen, history and tradition, Supreme Court