Joseph Blocher (Duke University School of Law) and Patrick J. Charles (Government of the United States of America – Air Force) have posted The History and Tradition of Firearm Localism, 105 Texas L. Rev. __ (forthcoming 2027) on SSRN. Here is the abstract:
The Supreme Court’s increasing turn to history and tradition in constitutional doctrine has raised serious questions about whether and how scholars, litigants, and judges can develop the historical record that this doctrine requires. But within that broader methodological discussion, relatively little attention has been paid to the practical and conceptual relevance of local laws and the diversity of rights and regulation at the local level. The Second Amendment presents an especially useful and important illustration in that regard, both because the Court has adopted a resolutely historical approach to the right to keep and bear arms and because the history and tradition of gun rights and regulation developed largely at the local level, with different treatment of guns in urban and rural areas generally and “sensitive places” particularly.
This Article identifies the roles of local law and local tailoring of gun rights in and after the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen. It then provides a broad account of the history and tradition of firearms localism, including many municipal gun laws recently uncovered through original archival research. Finally, the Article closes with an exploration of the evidentiary and conceptual challenges of situating the local within federal constitutional law, including case studies showing the difficulty of researching local legal history. In short, the Court’s turn to history makes it all the more important—but no easier—to account for the local variation that itself is part of “our whole experience as a Nation.”
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