Videos tagged with Text-and-History Approach

Professor Mark Smith, a constitutional attorney and member of the Supreme Court Bar, debunks the notion of a two-part test for Second Amendment analysis post-Bruin. He clarifies that the Bruin decision eliminated the problematic 'interest balancing' or 'tiers of scrutiny' second step, which allowed judges to weigh government interests against constitutional rights. The current methodology, as established in Heller and reaffirmed in Bruin, focuses on the plain text of the Second Amendment and the historical analogue approach, shifting the burden to the government to prove historical justification for firearm regulations.

David Thompson of Cooper and Kirk explains the Bruin methodology for Second Amendment lawsuits, emphasizing the 'text and history' approach. This involves analyzing the plain text of the amendment using 1791 definitions, then requiring the government to present relevant historical analogs from the founding era. The 'in common use' test for modern firearms and accessories is also crucial, with possession considered a lawful purpose. Arguments excluding modern items based on explicit textual absence are deemed fallacious.