"The Court has a special responsibility to ensure that the Constitution works in practice. While education, including the transmission of our civic v… - Stephen Breyer

The Court’s insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment thus raises a host of troubling questions. Consider, for example, the following. Do lower courts have the research resources necessary to conduct exhaustive historical analyses in every Second Amendment case? What historical regulations and decisions qualify as representative analogues to modern laws? How will judges determine which historians have the better view of close historical questions? Will the meaning of the Second Amendment change if or when new historical evidence becomes available? And, most importantly, will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?

As we have seen, despite holdings by the European Court of Justice that EU law trumps member-state law, many national courts have insisted on retaining the final word as to whether a rule of European law conforms to their own constitutional requirements. And if this is so among nations committed to a measure of political and economic union, how much less likely is foreign law to impinge upon the sovereignty of one not so encumbered?

Do you think things outside the United States cannot be relevant to an understanding of how to apply the American Constitution? That's what's at issue. What is at issue is the extent to which you might learn from other places facts that would help you apply the Constitution of the United States. And in today's world, as I've said, where experiences are becoming more and more similar, I think that there is often -- not a lot, not always -- but in a finite number of instances there is something to learn about how to interpret this document.