The Problem with “History and Tradition”

Don't take down the fence until you know why it was put up.

By and

In an episode dedicated to our most reasonable and law-abiding listeners, Sarah and David examine a Fifth Circuit’s ruling that took the Bruen test to the next level. Following “history and tradition,” the court found that barring domestic violence offenders from owning a guns is unconstitutional.  Our hosts have thoughts. Also: can our hosts take on the Murdaugh murder case?

Show Notes:

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Comments (86)
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  1. Matt.Lowry

    Been listening for years and the podcast always makes me wish I would have gone to law school, but the first 58 minutes this one… maybe I made the right choice after all.

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  2. Daniel Clevenger

    Reading the Fifth Circuit opinion in the 922(g) case reminded me of all the worst parts of current qualified immunity jurisprudence: if there's not a precedent that is EXACTLY on point, then the behavior in question was not a clearly established constitutional violation (or now, the regulation/statute in question is not adequately grounded in the country's history and tradition). I'm very supportive of a strong Second Amendment, but I fear that this path will lead to a system that is so unworkable that it will result in the pendulum swinging very hard in the other direction.

    On a more important note, I'm also very disappointed in David for referencing the A-Team in connection with the Murdgaugh case and, given the way the defendant's last name is actually pronounced, not at least nodding at Captain Howling Mad Murdock, the best character in the whole series.

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  3. Bradgreenwald

    Generally a huge fan of the analysis on this podcast, but this one felt like a "I didn't like the policy implications so the legal reasoning must be flawed" cop-out (especially from David I hate to say). And to say that the levels of scrutiny have served us well is just plain wrong. Maybe for the 1st amendment, but for the rest of the BoR generally the scrutiny level has been reverse engineered to result in "whatever the government wants to do is A-OK!", see 2nd amendment and 5th amendment law particularly. Heller was roundly ignored by the lower courts; even though I am not a massive fan of H&T, an "and we meant it" ruling about strict scrutiny was never going to work as many lower courts have found ALL firearms restrictions to meet the strict scrutiny test of the government's interest in ensuring that no one, anywhere, ever, is hurt by anything.

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  4. Kottinghome

    Sarah and David,

    I hate to tell you this, but those two Neo-Nazis were crazy, but they weren't stupid or misinformed. Depending on the station, the transformers in question are 1 or 2-story tall, actively fluid cooled, masses of copper and iron. They are custom manufactured for each installation, and no utility company keeps spares of transformers that cost $2-3 million each. All their plan lacked was scale.

    A transformer can easily be taken out by rifle fire, if it hits the cooling system and the alarm systems are disabled. (https://en.wikipedia.org/wiki/Metcalf_sniper_attack or https://en.wikipedia.org/wiki/Moore_County_substation_attack)

    While in both these instances, companies were able to restore power fairly quickly by rerouting power from other substations, these were relatively smaller substations in less densely populated areas. The transmission grid is often less robust in more crowded urban areas, as there aren't sufficient alternate routes to meet a highly concentrated demand.

    In both these cases, restoring the substations to full operation took a few years, because the replacement transformers had to be built. A planned, coordinated attack by someone who knew the transmission grid could well shut down the grid in an area for quite some time.

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    1. Greggerlach2014

      +1 to Kottinghome's comment!

      I think Sarah's comparison was that we have ready-made spare parts for other things, like cars. And it's true that for much of the electrical grid we have spares on hand like those that directly feed into your home or business. But in the case of large, power-transformers the leadtime can be in excess of 1 year to manufacture and deliver.

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  5. David Ragsdale

    David was perhaps crowing a little too much at saying "listeners" at the 1:02:42 mark, considering that he had just said "readers" 19 seconds earlier at the 1:02:23 mark.

    My question, though, is how David could discuss television shows about a powerful family living by its own rules in a rural town without mentioning Season 2 of Justified, featuring Margo Martindale as the head of the Bennett family in rural Kentucky.

    The only explanation is that David hasn't watched Justified (currently streaming on Hulu) but how is this possible? One of the best shows of the 2010s.

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  6. Mindydixon

    Once again, David's pop culture references come up short. His touchstones for the tyrannical, murderous, oligarchic family confronted by the town savior were limited to The A-Team, Knight Rider, and Airwolf. How he could have missed Jasper, Missouri's lord and savior, James Dalton in the greatest story ever told, "Road House" is beyond my comprehension.

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    1. Avatar photocircle-angle-nib
      David French vertical-nib Author

      I loved Road House! It was the culmination of everything 80s entertainment was about.

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      Ethan Cordray

      "Road House" is that rare type of movie that I would both expect David to love, and which is also in fact very good.

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    Cschande

    To summarize what I heard David and Sarah to be saying about the history-and-tradition test: "Some lower courts seem to be erring in how they're applying this brand new history-and-tradition test. Therefore, there must be something wrong with the test, and we should throw it out."

    Maybe I'm oversimplifying. But that was the gist of what I heard. And that just seems incredibly short-sighted to me.

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    1. MathewA

      I think the better argument is that we already have a very well developed test for enumerated constitutional rights. It should have been strict scrutiny just like the first amendment.

      One thing to think about is that people wrote laws that were unconstitutional at the time of the founding as well. See Alien and Sedition acts.

      The levels of scrutiny can help get around this problem. I'm not saying history and tradition aren't important, or that they can't give needed context. But there was no need to make this 2nd amendment specific type of scrutiny.

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      1. Bradgreenwald

        wasn't there? See my argument above but briefly why do you think the lower courts would listen given that they have essentially ignored Heller?

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        1. MathewA

          Helmer didn't set a method of review

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          1. Bradgreenwald

            So you propose that if that had ruled the same way on Bruen but just via the strict scrutiny test, and clarified that SS applies to 2A, that lower courts would follow along? I agree that they should, but after seeing the clown show that is the 9th circuit on 2A cases I'm not convinced. To be honest, I would have been OK with them trying that, like I said above H&T can cut both ways and I am not a huge fan.

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    Hoopman.Ed

    I can't escape the feeling that Chesterton's fence turns out to be kind of a sophistic device that gives a heckler's veto to anyone who opposes change, assuming status quo is inherently the better course.
    While it's useful to consider reasons on both sides of a concern, it seems to place all the burden of that consideration on one side.
    If you can't conceive the source of a computer glitch, should you leave it, rather than address?

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      Ben Connelly

      I think you misunderstand what it is. The point of Chesterton’s fence isn’t “never remove anything that’s been around a long time,” but rather, “if you want to remove something, take the time to understand why it might be there/the reasons for it first - and then you can still remove it if you decide that the original purpose is no longer necessary or new circumstances outweigh that purpose or you have a more important reason for removing it.”

      Basically, the point is that if you’re going to make reforms, you should understand the why behind the system you are reforming before deciding everything needs to change.

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      George.Skinner

      I think it's more an admonition to perform due diligence as a means of limiting unintended consequences. A mere computer glitch is a facile example. Imagine instead that you're creating a new version of a software package, and want to ditch support for older hardware that's holding back implementation of some new feature. Chesterton's Fence says take a look at everything that's going to be impacted by that change: are you going to impact a huge group of users by making their hardware obsolete? Is there a path for them to update critical systems before you make that change? What other aspects of the software are going to be impacted by this change, and how much effort is going to be required to fix them? Frankly, I don't know of any technical company worth doing business with that doesn't have a change management process that embodies Chesterton's Fence, and it's strange to think we wouldn't require the same level of scrutiny in public policy or the law.

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    3. MathewA

      A successful society needs both forces. One side pushing for change, and another side saying slow down. But this bias should usually be towards status quo. Especially before we make big changes we need to ask why the fence is there, and then what will happen when we remove the fence.

      Too often people with the best of intentions make changes that make things worse. For example, government welfare policies with a marriage penalty that encouraged single parent households.

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        Hoopman.Ed

        I'm not seeing a reason why the bias should be toward status quo.
        Change can come with unseen benefits (eg reintroducing wolves unprovoked watersheds and diversity) and the status quo can come with unseen detriment.
        I don't think either side should be ignored, but I think anti-change elements tend to kind of hand wave Chesterton's fence and therefore status quo, which turns into a huge unfairly placed burden of proof.
        I see no reason why, upon demonstrating a benefit of change, it wouldn't then fall on the change-opposed to demonstrate a comparable detriment.

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        1. MathewA

          "I'm not seeing a reason why the bias should be toward status quo."

          Because most of the time, things are already working. So you need to show your work on why this change will be better.

          I do agree though that both sides have to show there work.

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    Seth B

    A real banger of an episode. It slaps!

    I'm surely in an extreme minority of Dispatch subscribers who would like to see the 2nd Amendment repealed. (I know, I know, it will never happen.)

    To be clear, it's not that I want guns themselves banned. I don't. I want David to enjoy his apparently large collection of them, take them to the range, feel confident in his Tennessee castle, take them hunting if he hunts, and so forth. But I find it insane that these particular tools/toys have such special status in our law that we apparently can't even legally deprive certain known psychos from possessing them.

    Come to think of it, I'd love to hear David chat with his new colleague Bret Stephens about the 2nd Amendment sometime, given Stephens's opinion that it should be repealed.

    https://www.nytimes.com/2017/10/05/opinion/guns-second-amendment-nra.html

    https://www.nytimes.com/2018/02/16/opinion/repeat-repeal-second-amendment.html

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    1. NotTheEditor

      You are not alone. I, too, would like the 2nd Amendment repealed and re-written, for much the same reason.

      And while I am here, I will say that I find the “history and tradition” test to be absolute hokum, entirely subjective to whatever history one decides to look at and prioritize/emphasize. That was true in Alito’s unnecessary nonsense in the Dobbs decision as well, by emphasizing history and tradition sources that agreed with his [Roman Catholic] view on abortion.

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    2. MathewA

      "these particular tools/toys have such special status in our law that we apparently can't even legally deprive certain known psychos from possessing them."

      This is factually incorrect. For example, felons are normally barred from owning guns. And if you are actually adjudicated to not be in position of your faculties then yes you can be barred as well.

      But what you can't do is just trample over their constitutional rights without due process.

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        Seth B

        *Certain* known psychos. I did not claim our hands are tied in all cases, or even in most cases. But they sure seem to be tied in this one. A reminder from the opinion:

        "Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas. On December 1, after selling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver’s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7, Rahimi fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant. Officers in the Arlington Police Department identified Rahimi as a suspect in the shootings and obtained a warrant to search his home. Officers executed the warrant and found a rifle and a pistol. Rahimi admitted that he
        possessed the firearms. He also admitted that he was subject to an agreed civil protective order entered February 5, 2020, by a Texas state court after Rahimi’s alleged assault of his ex-girlfriend."

        And yet this clearly dangerous nut apparently cannot be deprived of his toys because of his constitutional right to bear arms? On your final sentence we are in agreement. What I deplore is this particular constitutional right. Hence, my desire to repeal the 2nd amendment.

        Link to the opinion: https://www.ca5.uscourts.gov/opinions/pub/21/21-11001-CR1.pdf

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        Buddy Atkins

        "But what you can't do is just trample over their constitutional rights without due process."

        But that is exactly the core of Seth's comment, that he doesn't think gun ownership should be a constitutional right. Instead, gun ownership should fall under the same level of constitutional protection as the ownership of anything else.

        You are correct that there are paths available to keep guns out of certain people's hands, but those paths are unarguably very narrow due to the unique status of guns in the constitution compared to everything else.

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        1. MathewA

          The reason why the right to bear arms was put in the constitution is because a person with the right to arms is a citizen, the person without that right it a subject.

          over 100 million people were killed in the last century by their own governments. More than all the wars, and murders combined.

          Moreover, the police have no duty to protect you. Their job is to go after the bad guy AFTER you've been assaulted or killed. And as the saying goes "when seconds matter the police are minutes away"

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            Seth B

            The sentiment expressed in your first paragraph, noble though it may have sounded in Thomas Jefferson's mouth in the 1780s, makes for absurd conclusions in 2023.

            It would lead us to speak high-mindedly of the *citizens* of Yemen, Iraq, and the Gaza strip, while simultaneously forcing us to consign nearly all Europeans, Canadians, Australians, Israelis, and Japanese (among others) to the lesser status of mere *subjects*.

            My fear of the US government turning tyrannical and murdering me is on par with my fear that Bill Gates is controlling me through microchips in the Covid vaccine. (Perhaps he's making me haunt conservative websites and voice doubts about the 2nd Amendment?) While not impossible, it is not something that keeps me awake at night. Your level of paranoia may vary.

            On the other hand, were I a *citizen* of the Gaza strip (no subject, I!), I'd be much more concerned about Hamas - my government - trying to kill me.

            https://en.wikipedia.org/wiki/Overview_of_gun_laws_by_nation

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  10. Chris

    I thought the 2A opinion was crazy until the judge from the district circuit said that abortion might be protected in the 13th amendment despite Dobbs. Do you think that reasoning could actually go anywhere, and is there anything akin to contempt of court that lower court judges could run afoul of if they blatantly flout higher courts like this?

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