Panel Explores New Strategies in Gun Litigation
The United States Supreme Court has recently shown more emphasis on historical analysis than public health research in cases requiring interpretation of the Second Amendment — requiring new strategies for litigants as well as amici in firearms litigation.
To delve into these new strategies, the Solomon Center for Health Law and Policy hosted “‘History and Tradition’ in Firearm Litigation: The Role of Historians as Amici,” featuring an expert panel of scholars, practitioners, and advocates. The Nov. 7 event was organized by organized by Yale Health Law and Policy Society (YHeLPS) board member Sam Cai ’26 and co-sponsored by YHeLPs and the American Constitution Society. The panel featured lawyers Janet Carter and Esther Sanchez-Gomez, Dean Megan L. Ranney of the Yale School of Public Health, and cultural historian Jennifer Tucker. Solomon Center Visiting Scholar Saul Cornell moderated. Nicholas deB. Katzenbach Professor of Law Reva Siegel was the commentator.
Amicus briefs serve as a means for expert witnesses, including scientists and historians, to present a court with additional information relevant to a case at hand and advocate for a particular outcome. In opening remarks, Cornell observed that the volume of Second Amendment cases has increased significantly, requiring potential amici to research and draft quickly to keep up with court deadlines. Yet most of the existing research on gun violence is by public health scholars, not historians — leaving amici scrambling to find or produce new historical research on firearms, she explained.
The Supreme Court moved from the traditional analytical test used for constitutional questions, called “means-ends scrutiny,” to the “history and tradition test” in the 2022 case New York State Rifle & Pistol Association Inc. v. Bruen. Unlike means-ends scrutiny, which requires a court to analyze the relationship between a statute’s intended effect and methods by which it achieves that effect, the history and tradition test requires a court to determine whether a statute has a historical (typically Founding-era) analogue. Sanchez-Gomez, litigation director and amicus program lead at Giffords Law Center, noted that the test raises questions about whether history should be considered fact or law.
“Are we setting up a world where the best-funded side is always going to win because they can bring up more briefs?” Sanchez-Gomez asked.
Are we setting up a world where the best-funded side is always going to win because they can bring up more briefs?”
— Esther Sanchez-Gomez, Giffords Law Center
Carter, Senior Director of Everytown Law’s Second Amendment practice, discussed more questions that the decision raises and amicus briefs must navigate. What, for example, should a court do with historical silence?
Ranney lamented the Supreme Court’s current lack of interest in public health research but emphasized that science and history are deeply intertwined. Public health data and methodologies can be used to support historical analysis and fill gaps in the historical record; in turn, history can contextualize public health research, she said.
Tucker, founding Director of Wesleyan's Center for the Study of Guns and Society, added that a focus on history alone cannot account for the ongoing development of new technologies. Tucker pointed to research indicating that firearms are substantially more dangerous today — particularly for vulnerable groups, such as those at risk of domestic violence — than they were in the 18th century.
Siegel spoke on constitutional law’s place at the intersection of law and history. Bruen and the recent decision in United States v. Rahimi, in which the court upheld a federal ban on gun possession by those under domestic violence restraining orders, demonstrate ongoing challenges with this intersection. Siegel remarked that claims about the past may be asserted at various levels of generality — meaning that a statute’s historical analogue can be a matter of perspective.
The event concluded with audience questions.
