LAS VEGAS (May 4, 2022) – A rebuttal in response to criticism of a scholarly paper authored by FPC Action Foundation director of constitutional studies, Joseph Greenlee, was published today by the Duke Center for Firearms Law. In its April 27 article, “Ghost Guns, History, and the Second Amendment,” the Duke Center called into question an argument Greenlee makes in “The American Tradition of Self-made Arms” defending the test of text as informed by history and tradition (THT) as being the correct methodology for Second Amendment jurisprudence.
The Duke Center criticizes THT for “transform[ing] nonregulation into a right,” suggesting that history is only useful in Second Amendment analyses if it proves that “a past practice was protected as a right, not simply that it existed without regulation.” This loose constructionist’s view of the Constitution’s explicit placement of limits on governmental power has it backwards. The People don’t need to prove their enumerated Constitutional rights are protected; it is incumbent on the government to prove it has the authority to regulate or restrict the rights of the People. This is why history and tradition matter. As Greenlee’s rebuttal compellingly states:
Placing the burden on the people to prove the existence of their constitutional rights fails to appreciate the nature of the United States government. As James Wilson famously declared while discussing a bill of rights during the constitutional debates, “the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that . . . every thing which is not given, is reserved.” Presumptions favor liberty, not governmental authority.
The only test appropriate to determine the constitutionality of any and all government attempts to infringe on the natural rights of the People is that of the text of the U.S. Constitution as informed by the history and tradition of our nation. Not only was THT correctly applied by the Supreme Court in its Heller and McDonald decisions, but it is the correct test for NYSRPA v. Bruen and all future Second Amendment cases as well.
Joseph Greenlee’s full rebuttal can be read on Duke Center for Firearms Law’s website.