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

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. This is a testable hypothesis. With the Bruen case in 2022, the Supreme Court moved away from a contemporary means-ends method of interpreting the Second Amendment to an originalist, “history and tradition” one. In this article, we analyze data on gun rights decisions handed down by lower federal courts from 2000 to 2023, finding that the Supreme Court’s switch to an originalist jurisprudence did not, in fact, constrain judges—rather, it 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.