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The Problem With 'History and Tradition'

Advisory Opinions

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The Second Amendment and the History and Tradition Test

The Supreme Court distilled two metrics for courts to compare the government's proffered analogs against the challenged law. To carry its burden, the government must point to a historical precedent from before, during, and even after the founding that evinces a comparable tradition of regulation. We are not obligated to sift the historical materials for evidence to sustain 922G8. The government need not identify a historical twin, rather a well-established and representative historical analog suffices. Do you think that that's a relatively accurate reflection of the Supreme Court's test? Whether you like theSupreme Court's test or not? Yeah.

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