Justice Thomas argued that a “historical tradition” of handgun regulation sets limits on the right to keep and bear arms. He argues that the United States' regulatory practices “before, during, and even after the founding of the nation” show that “there is no such tradition in the historical record,” and that there is a long, unbroken tradition extending from medieval England to early times. He pointed out that this suggests that there was a tradition without. 20th century America was in conflict with New York law. The opinion acknowledged the existence of sporadic 19th-century regulations similar to those in New York, but over time, the lack of a similar tradition of gun control across states and communities has argued that it had been trivialized.
A similar traditionalist approach can be seen at Dobbs. There, Justice Alito writes for the court, examining the government's practices in regulating abortion before, during, and after the ratification of the Fourteenth Amendment, concluding that there is no constitutional right to abortion. This is an “unbroken tradition of prohibiting abortion” that continued “from the earliest days of the common law until 1973.”
Similarly, in Kennedy v. Bremerton School District, the Supreme Court ruled in 2022 in an opinion written by Justice Neil Gorsuch that public school football coaches who prayed on the field after games did not violate the Establishment Clause. This was not unlike the act of prayer, which had long been considered a violation of the Establishment Clause. And in Houston Community College System v. Wilson, decided unanimously in 2022, the court held that if an elected body censured one of its members due to “long-established and established practice,” It was determined that the freedom of speech of members would not be violated.
For some critics, bringing up “tradition” is alarming. After all, our country today is vastly different, demographically and otherwise, than it was hundreds of years ago, when political power was held by a relatively small number of people and unfairly denied to others. . These critics ask how well traditionalism deals with the contemporary realities of American democracy.
The answer to this obvious question is, “Compare it to what?” Let us consider originalism and living constitutionalism again. Although these approaches differ from each other, both are appropriate for elite actors working at centers of legal and political power. Both depend on the preferences and observations of the legal professional class. Originalism privileges centuries-old writings by prominent figures from the Founding or Reconstruction eras, as judged by today's best legal historians and theorists. Living constitutionalism privileges the high ideals of today's most prominent scholars and judges.
