The New York Times: “…The conservative justices applied the history-and-tradition test in three major rulings decided in the space of a week in June 2022. First, they struck down a New York restriction on gun ownership for being out of line with the nation’s “historical tradition” around regulating guns. Next, in Dobbs v. Jackson Women’s Health Organization, a conservative majority ended the constitutional right to abortion in Roe v. Wade because it was not “deeply rooted in the Nation’s history and tradition.” Finally, the court held that a public high school’s decision to let go of a football coach for praying with a crowd he gathered at midfield was out of line with “historical practices and understandings” of religious freedom. The flurry of history-and-tradition opinions prompted an uproar among liberal court-watchers. What counted as historical or traditional? The open-ended nature of the terms seemed to invite a freewheeling survey of the 18th and 19th centuries. It’s “basically a fancy way of saying, ‘if men in power didn’t recognize this right as fundamental in ye olde times, we won’t recognize it now,’” tweeted Joseph Fishkin, a law professor at the University of California, Los Angeles. The court was playing “memory games,” in the words of a widely cited law review article about Dobbs by Reva Siegel, a Yale law professor. Why does the conservative majority “appeal to history and tradition in exactly those cases in which it is changing the law?” she asked in another, forthcoming piece. Some judges expressed practical concerns as well. In one of many recent suits that involved challenges to state and federal gun restrictions, Judge Carlton Reeves, an Obama nominee to the federal bench in Mississippi, pointed out that judges were not trained to sort through the competing interpretations of history. “We are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791,” Reeves wrote…”