Abstract
The Supreme Court in New York State Rifle & Pistol Association v. Bruen introduced a history-and-tradition test for Second Amendment challenges, directing courts to compare modern firearm regulations to past ones. To conduct this historical inquiry, litigants and judges have increasingly turned to professional historians as expert witnesses. This Note qualitatively examines how historian experts are used and received in post-Bruen federal litigation. It finds that a small group of repeat players—sixteen historians—make up this emerging field, typically appearing exclusively for either challengers or governments. These historians serve primarily in civil litigation, leaving a relative expertise gap in criminal cases, and they are often asked to produce rushed historical research for preliminary motions. The Note further identifies two competing judicial conceptions of the historian expert’s role. Some judges treat historian experts as archivists who merely identify past laws, while others treat them as analysts who interpret those laws within their broader context. This Note advocates for the latter approach: Treating historian experts first and foremost as analysts allows courts to practice better law and better history.
Citation
Jake McAuliffe,
Historians for Hire: Evaluating Historian Expert Witnesses After Bruen,
75 Duke Law Journal
1363-1406
(2026)
Available at: https://scholarship.law.duke.edu/dlj/vol75/iss7/4