No Single Tradition: The Second Amendment and the Exhaustion of Constitutional Adjudication

The most significant constitutional crisis in America today has very little to do with firearms.

Beneath the polarized shouting matches of the gun debate lies a deeper structural failure in how courts resolve modern disputes. In trying to resolve high-stakes conflicts, the Supreme Court has increasingly turned to a methodology that treats fragmented historical archives as a self-executing decision rule. Under the test established in NYSRPA v. Bruen (2022), modern public-safety regulations are valid only if they are consistent with historical tradition.

This methodology has reached its structural carrying capacity. The Second Amendment isn't the cause of this legal instability, but rather its most visible patient. The resulting strain reveals three overlapping dynamics:

1. Institutional Over-Absorption: Legislative gridlock dumps unresolved policy disputes onto the courts.
2. Functional Discontinuity: Old constitutional language is stretched to govern radically changed social and technological environments.
3. Doctrinal Exhaustion: The chosen interpretive method spends more energy maintaining its own internal consistency than resolving the underlying problem.

The gun debate serves as a diagnostic window into a broader crisis of constitutional governance.

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The Cause: Institutional Over-Absorption

At its core, the crisis of the Second Amendment is a democratic failure that has been absorbed by the judiciary. This is institutional over-absorption: when democratic legislatures fail to produce compromises for high-stakes modern conflicts, those unresolved disputes are funneled into constitutional doctrine.

Constitutional law has become the default repository for unresolved national policy conflicts—from high-capacity magazines to drug-related gun violence. Because courts can't openly act as legislatures, they must deploy a seemingly objective, historical inquiry to preserve the appearance of apolitical decision-making.

Under the current Court, that process relies on finding historical analogs. The judiciary has locked itself into a formula, claiming that the legitimacy of a twenty-first-century regulation must be determined primarily by whether a similar law was passed by an assembly in 1791 or 1868. History is no longer a source of context; it's been transformed into a rigid test that processes historical silences into constitutional commands.

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Same Words, Different World: Functional Discontinuity in Action

This method relies on the illusion of historical continuity. In reality, the constitutional meaning of the right has been repeatedly repurposed across 235 years to manage shifting social realities, creating a profound functional discontinuity between the past and the present:

• 1791: The Civic System. The Founding-era legal and social order treated arms not simply as consumer goods or symbols of autonomous private choice, but also as instruments embedded in militia obligations, public regulation, local policing, and civic duty. Private possession existed, but the institutional world organizing the relationship between arms, service, and public authority differs sharply from the national consumer firearms market of the twenty-first century. Linguistic data confirms this functional discontinuity: in the late eighteenth century, the phrase "bear arms" was used in a specialized military sense in 65.6% of instances, nearly three times as often as in a literal carrying sense (21%).
• 1876: Reconstruction. Post-Civil War efforts to protect newly freed people from racial terror and Black Codes reconfigured the right under the Fourteenth Amendment as a personal shield for physical safety. But in United States v. Cruikshank (1876), arising from the Colfax Massacre, the Court held that the Second Amendment did not apply against the states and did not furnish a federal remedy against private conspirators, leaving Black citizens vulnerable where state authorities were unable or unwilling to protect them.
• 1939: Stabilization via Ambiguity. For seventy years, the legal system maintained a stable, militia-centric consensus. This persisted not because the constitutional question was cleanly resolved, but because the ambiguity of United States v. Miller (1939)—a one-sided case where unrepresented defendants filed no briefs—produced a workable settlement. Lower courts used Miller's narrow ruling to defer deeper individual-rights questions until they were formalized decades later.
• 2008–2010: The Individual Right. This equilibrium shattered when District of Columbia v. Heller (2008) held that the Second Amendment protects an individual right to possess a handgun for self-defense in the home. Two years later, McDonald v. City of Chicago (2010) applied this right to state and local governments through the Fourteenth Amendment.

This trajectory demonstrates that constitutional meaning hasn't traveled intact; it's been repeatedly reconfigured to manage shifting social realities. The difficulty, then, is not simply that modern society differs from the Founding era. It is that there is no single, uninterrupted historical tradition waiting to be mechanically applied. The constitutional record itself contains competing periods, transformations, silences, and reinterpretations.

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The Analogy Game: Doctrinal Exhaustion in the 2026 Term

The true systemic rupture occurred in Bruen, which directed courts to assess challenged regulations primarily through text, history, and historical tradition.

The core problem under Bruen is that the historical-analogue test provides no mechanically self-executing way to determine when two laws are sufficiently analogous. This has plunged lower courts into a series of un-executable questions: What regulatory burden counts as comparable? How narrowly should the regulatory purpose be defined? Which historical period controls? Does historical silence imply constitutional protection, or merely that a social phenomenon was technologically impossible or absent?

While the government's public-safety measures are subjected to these exhaustive inquiries, modern firearms are integrated into the constitutional core under a far lighter historical burden, permitting rapid technological changes to escape the same level of historical scrutiny. Proponents of gun-market continuity argue that because the Founders knew of early repeating firearms (like the Belton or Lorenzoni flintlocks) but didn't pass laws banning them, they intended to protect modern high-capacity semiautomatic weapons.

But early repeating firearms were the equivalent of personal jetpacks. They were prohibitively expensive, mechanically delicate curiosities that had no measurable impact on public safety, played no role in military conflict, and remained virtually unknown to the general public. Early legislatures didn't regulate them for the same reason the government didn't write flight guidelines for personal jetpacks in 1950: they simply did not exist as a commercial or social reality. To treat this regulatory silence as a deliberate constitutional decision to insulate modern, mass-produced weaponry is a fundamental historical misunderstanding.

The June 2026 term acted as a series of stress tests, exposing the resulting doctrinal exhaustion of this methodology:

1. Sifting History's Vices (United States v. Hemani)

In United States v. Hemani (2026), the Court unanimously struck down the federal ban on firearm possession by unlawful drug users (18 U.S.C. § 922(g)(3)). To satisfy Bruen, the government analogized drug users to "habitual drunkards" under 18th-century vagrancy and surety laws.

Writing for the Court, Justice Gorsuch subjected this evidence to an "exacting scrutiny" that read less like constitutional interpretation and more like an archival dispute. A modern firearms case required the Court to examine highly specific historical evidence about intoxication, vagrancy, work discipline, and social vice. The Court had to wade into the drinking habits of the Framers, debating whether John Adams's daily tankard of hard cider or Thomas Jefferson's wine would have seen them disarmed under the government's theory.

Dismantling the government's analogy, Gorsuch noted that early vagrancy laws targeted "Vagabonds" who "did not meet the societal expectation of work," seeking to promote labor productivity rather than to protect the public from physical violence. When a court is forced to treat history as a closed-universe database, it must substitute arbitrary historical distinctions for functional, modern empirical analysis.

2. The Property Collision (Wolford v. Lopez)

In Wolford v. Lopez (2026), the Court struck down a Hawaii statute that banned firearm carry on private property open to the public unless the owner gave express consent. Hawaii had offered eighteenth-century anti-poaching laws and Reconstruction-era statutes as analogues.

But the majority, led by Justice Alito, rejected these analogues, holding that anti-poaching laws targeted "theft of game" rather than public carry, demanding a level of historical specificity that leaves little room for functional adaptation. Crucially, the Court’s majority declined to afford any weight to Hawaii's Reconstruction-era analogue, dismissing the 1865 Louisiana statute as a tainted, discriminatory artifact designed to disarm and subjugate newly freed Black citizens.

Regardless of the justices' subjective intent, this differential treatment of historical evidence demonstrates the core weakness of the method. The historical methodology increasingly requires courts to decide which history is relevant, which differences matter, which analogies are sufficiently close, and which historical evidence may be excluded from the comparison. The structural criticism survives even if the justices are acting in perfect good faith: when history is treated as the primary measure of modern law, the judge is forced to act as an editor of the past rather than an interpreter of the present.

Conclusion: A Diagnostic Window on Modern Governance

The Second Amendment has become the primary demonstration case for the limits of constitutional interpretation. By funneling deep, unresolved social conflicts over twenty-first-century technological lethality into a historical analysis of eighteenth-century municipal ordinances, we are asking constitutional adjudication to perform functions it was never designed to sustain.

When the Supreme Court uses history as cosmetic paint, it obscures the structural drift of the legal system. It forces lower courts to treat historical silence as constitutional command, paralyzing the state's traditional police powers while leaving citizens trapped in a regulatory void.

This structural strain isn't unique to the Second Amendment. The gun debate serves as a highly visible diagnostic window into a much larger problem of constitutional governance. We see the same strain in administrative-state disputes where eighteenth-century concepts of executive authority are stretched to manage complex modern financial systems, in separation-of-powers conflicts over digital surveillance, and in regulatory battles over rapidly changing technologies. In each of these areas, courts are being asked to use historical categories to govern modern systems for which they have no design vocabulary. The resulting strain isn't a failure of judicial skill or good faith; it is a structural consequence of asking historical analogy to carry an ever-increasing share of modern governance.

References & Key Authorities:

NYSRPA v. Bruen, 597 U.S. 1 (2022)

United States v. Hemani, 608 U.S. ___ (2026)

Wolford v. Lopez, 609 U.S. ___ (2026) 

District of Columbia v. Heller, 554 U.S. 570 (2008)

McDonald v. City of Chicago, 561 U.S. 742 (2010)

United States v. Cruikshank, 92 U.S. 542 (1876)

United States v. Miller, 307 U.S. 174 (1939)

Corpus of Founding Era American English (COFEA) data