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Journal Article

Text, history, and tradition: what the Seventh Amendment can teach us about the Second

01 Jan 2013-Yale Law Journal (Yale University, School of Law)-Vol. 122, Iss: 4, pp 852-938
TL;DR: The historical test relies primarily on analogical reasoning from text, history, and tradition to determine the constitutionality of any given practice or regulation, and it provides valuable insights, but also its own set of problems, for those judges and scholars struggling to implement the right to keep and bear arms as discussed by the authors.
Abstract: In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test, that niany jurists and scholars consider exceedingly manipulable. This Article argues that courts could look to the Supreme Court's Seventh Amendment jurisprudence, and in particular the Seventh Amendment's "historical test," to help them devise a test for the Second. The historical test relies primarily on analogical reasoning from text, history, and tradition to determine the constitutionality of any given practice or regulation. Yet the historical test is supple enough to respond to the demands of a twenty-first-century judicial system. As such, it provides valuable insights, but also its own set of problems, for those judges and scholars struggling to implement the right to keep and bear arms. Language: en

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TL;DR: The Fundamental Constitutions of Carolina as mentioned in this paper tried to reconcile these competing political and economic concerns by providing specialized judges in port towns to try cases belonging to the law-merchant, rather than by the expensive formality of the common law.
Abstract: John Locke worried that the common law was bad for business. Although he recognized the political importance of common law institutions such as juries, he also thought that the cumbersome procedures of English courts might hamper economic development in England and its colonies. The Fundamental Constitutions of Carolina, which Locke helped draft in 1669, tried to reconcile these competing political and economic concerns. Although the Constitutions guaranteed “Freemen” a right to trial by jury, the document also provided for specialized judges in port towns to “try cases belonging to [the] law-merchant.” These commercial judges would allow merchants to settle their disputes “as shall be most convenient for trade,” rather than by the expensive formality of the common law.

4 citations