Kellen Heniford and Jennifer Tucker, Wesleyan University, have posted Artificial Silence: Historians on the Selective Construction of 'History and Tradition' in Second Amendment Jurisprudence, which is forthcoming in the Stanford Law Review:
Since the Supreme Court issued its landmark decision in New York State Rifle & Pistol Association v. Bruen in 2022, courts in the United States have heard more than 3,000 challenges to local, state, and federal weapons regulations. Bruen radically reshaped the landscape of Second Amendment jurisprudence by replacing means-end scrutiny with a two-step “history and tradition” test. Historians who have written about these developments have largely agreed that the methodology is difficult to square with what might be called the “best practices” of their profession. Especially after the 2026 decisions in both United States v. Hemani and Wolford v. Lopez, it has become increasingly clear that the Court is not only making massive demands on litigators and lower courts with respect to the marshaling of historical evidence, but that it is also uninterested in doing good or even consistent historical analysis with the evidence presented to it. The majority in these cases—and especially in Bruen and Wolford—have repeatedly telegraphed their willingness to write off entire swaths of American history as irrelevant to an understanding of the country’s “tradition” of regulation. The more restrictive the Court is as to what counts as acceptable history, the narrower the scope of acceptable analogy, and the less likely any given gun violence prevention law is to survive constitutional scrutiny.
In this Essay, we explore the concept of “artificial silence”—which we define as the selective rejection of relevant historical evidence in the adjudication of Second Amendment claims. To demonstrate the ways this artificial silence has been constructed, we trace the evolving and often contradictory demands that Bruen and its successors have placed on litigators and, secondarily, on historians. Using examples from an ongoing project at the Center for the Study of Guns & Society at Wesleyan University, we argue that American weapons regulation was neither static nor monolithic, but instead deeply shaped by local circumstances, cultural norms, and political structures that varied across time and space. This diversity underscores that only a broader method that integrates legal, social, technological, and cultural history can meet the evidentiary and analytic requirements required in the post-Bruen era, even as the Supreme Court narrows the range of historical analogies it is willing to entertain.
--Dan Ernst