Originalism-by-Analogy and Second Amendment Adjudication

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JOSEPHBLOCHER&ERIC RUBEN
Originalism-by-Analogy and SecondAmendment
Adjudication
abstract.
InNew YorkState Rifle& PistolAss’n v. Bruen, the Supreme Court held that the
constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated
by familiar doctrinal tests.Bruen’s novel approach to historical decision-makingpurported to con-
strain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictabil-
ity. Those problems are painfully evident in courts’ faltering efforts to applyBruento laws regu-
lating 3D-printed guns, assault weapons,large-capacity magazines, obliterated serial numbers,
and the possession of guns on subways or by people subject to domestic-violence restraining or-
ders. The Court’s recent grant of certiorari inUnited States v.Rahimiprovides a much-needed op-
portunity for clarification and course correction. Without a more disciplined approach, the future
of Second Amendment doctrine is dire, as is that of other areas of constitutional law where such
tests take root.
This Article begins by explainingBruen’s approach, which we call originalism-by-analogy. It
shares some features with standard forms of originalism and traditionalism but also differs in the
degree to which it requires judges to reason analogically directly from the historical record rather
than, for example, using historical sources to identify the original public meaning of a constitu-
tional provision. TheArticle then explains and addresses several challengesof originalism-by-
analogy by bringing together two bodies of scholarship that have thus far had little overlap: the
voluminousliterature on originalism and the generations-old literature on analogical reasoning in
law.
We distill three broad challenges for post-BruenSecond Amendment law and scholarshipand
suggest some partial solutions. First, courts applyingBruenmust discernworkable principles of
relevant similarity—thesinequa nonof analogical reasoning—to compare historical and modern
laws. Second, doctrine mustaccount for the fundamental differences between past and present, in
part through careful attention to the level of generality at which the historical inquiry is conducted.
Third, the approach must account for courts’ institutional limitations in conducting a difficult his-
torical inquiry. This includes not overreading silences in the record and also recognizing that—
precisely because it requires comparison of past and present—Bruennot only licenses regulatory
change but preserves an important role for contemporary empirics and legislative deference.

the yale law journal133:992023
100
authors. Joseph Blocher is Lanty L. Smith ’67 Professor of Law, Duke University School of
Law. Eric Ruben is Associate Professor of Law, SMU Dedman School of Law. We are grateful to
Albert W. Alschuler, Jennifer L. Behrens, Jacob D. Charles, Brannon P. Denning, Mark A. Fras-
sett o, Pratheepan Gulasekaram, Darrell A.H. Miller, Michael Ramsey, Kelly Roskam, Reva B.
Siegel, and Andrew M. Willinger for superb comments and critiques on earl y drafts of this Article.
Khoa Nguyen and Maggie Gian vecc hio provided invaluable research assistance.

originalism-by-analogyandsecond amendmentadjudication
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01
article contents
introduction102
i.bruen’s novel approachto historical analogy111
A.Bruen’s Novel Approach114
1.The “Plain-Text” Threshold115
2.A Stringent Test for Historically Persistent “General Societal Problems” 119
3.Bruen’s PrimaryHistorical-Analogical “Metrics”: “How” and “Why”123
4.The Continuing RelevanceofHeller’s “Presumptively Lawful”
Regulations125
B.A Pivot in Constitutional Historicism128
ii.implementing originalism-by-analogy137
A.Principles of Relevant Similarity138
1.Historical Citations Without Reasoning139
2.The Centrality of RelevantSimilarityin Analogical Reasoning143
3.Toward WorkablePrinciplesof RelevantSimilarity AfterBruen146
B.Anachronism and Levels of Generality150
1.AnachronismAfterBruen150
2.Selecting a Level of Generality160
C.InstitutionalLimitations168
1.JudicialResources169
2.Empirics and Deference170
conclusion174

the yale law journal133:992023
102
introduction
TheSupreme Court’s increasingl y hist orical approach to constitutional-
rights adjudication faces waves of criticism. Legalscholars andhistorians alike
have highlighted the Court’sselective useof historical sources,
1
the disconnect
between those sources and modernchallenges,
2
the silence ofmost voices within
the historical record,
3
and even basic errors of historical fact.
4
Many of these cri-
tiquestrack longstanding criticisms oforiginalismas an interpretive practice—
perhaps thecentralbattlefieldin constitutionalscholarshipover the pastfew
decades.
5
One especially notable as pect of the Court’s recent turn tohistoryis that it
appears to depart from—or at leastextend beyond—standardpublic meaning
originalism,which has becomethe dominant versionof originalist
1.See, e.g., Aaro n Ta ng, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide
Abortion Ban, 75 STAN. L. REV. 1091, 1126-56 (2023); Re va Si egel, Memory Games: Dobbs’s
Originalism as Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance, 101
TEX. L. REV. 1127, 1180-93 (2023); Albert W. Alschuler, Twilight-Zone Originalism: The Su-
preme Court’s Peculiar Reasoning in N ew York State Rifle & Pistol Association v. Bruen, 32 WM.
& MARY BILL RTS. J. (forthcoming 2023) (manuscript at 6 -8), ssrn.com/abstract
=433 0457 [https://perma.cc/P34T-PLGZ]; Saul Cornell, Cherry-Picked History and Ideology-
Driven Outcomes: B ruen’s Originalist Distortions, SCOTUSBLOG (June 27, 2022, 5:05 PM),
www.scotusblog.com/2022/0 6/cherry-picked-history-and-ideology-driven-out-
comes-bruens-o riginalist-distortions/ [ http s://perma.cc/S2HD-K3JW].
2.See, e.g., David Cole, Egregiously Wrong: The Supreme Cou rt’s Unprecedented Turn, N.Y. REV.
BOOKS (Aug. 18, 2022), www.nybooks.com/art icles/2022/08/18/egregiously-wrong-
the-supreme-courts-unprecedented-turn-david-cole [http s://perma.cc/LZW7-6PAV]
(“[W]hy should states in the twenty-first century b e l imited to what states did centuries ear-
lier, particularly when conditions have radically changed?”).
3.Dobbs v. Jackson Women’s Health O
rg., 142 S. Ct. 2228, 2324 (2022) (Bre yer, Sotomayor &
Kagan, JJ., dissenting) (“[O]f course, ‘people’ did not ratify the Fourteenth Amendment.
M
en d id. So it is perhaps not so surprising that the ratifi ers were not perfectly attuned to the
im-portance of reproductive rights for women’s liber ty, or for their capacity to participate as
equal m embers of our Nation.”).
4.See, e.g., History, the Supreme Court, and Dobbs v. Jackson: Joint S tatement from the American
Historical Association and the Organization of American H istorians, AM. HIST. ASS’N (July 2022),
www.his
torians.org/news-and-advocacy/aha-advocacy/history-the-supreme-court-
and
-d obbs-v-jackson-joint-statement-from-the-aha-and-the-oah-(july-2022) [https://
perma.cc /R X2B -L5NH] (“The opinion [in Dobbs] inadequately represents the history of the
common law, the significance of quickening in state law and practice in the U nited States,
and the 19th-century forces that turned early abortion in to a crime.”).
5.We discuss leading approaches to originalism throughout the Article. For prominent cri-
tiques, see generally ERWIN CHEMERINSKY, WORSE THAN NOTHING: THE DANGEROUS FAL-
LACY OF ORIGINALISM (2022); FRANK CROSS, THE FAILED PROMISE OF ORIGINALISM (2009);
ERIC J. SEGALL, ORIGINALISM AS FAITH (2018); and Mitchell N. Berman, Originalism is Bunk,
84 N.Y.U. L. REV. 1 (2009).

originalism-by-analogyand second amendment adjudication
1
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methodology.
6
Rather than identifying the original public meaningof constitu-
tional text
7
(which might then be implemented through doctrinal tests
8
), judges
applyingthis new methodare supposedto analogizemodern lawsdirectly to
historicalsources, unmediated by a legal rule or standard like the tiers of scru-
tiny. Though somescholars in the originalist literature have notedthe difficulties
of analogizing across time,
9
the important differences between public-meaning
originalism,traditionalism, and the historical-analogical approach—whichwe
call originalism-by-analogy—have yet to be fully extrapolated or addressed.
An exchangebetween Justices Alito and Scalia inUnited States v. Jones
10
helps
illuminate the distinctionsbetweenstandard public meaning originalism (cham-
pionedby Scalia) and the historical-analogical approach (critiqued by Alito). In
response to Scalia’s reliance on eighteenth-century legal tradition to assess
whetherusing a GPSdevice to track a suspect’s car comports with the Fourth
Amendment,Alitowrote that “it is almost impossible to think of late eighteenth-
century situationsthat are analogous to” the use of GPS devices.
11
Alitoasked
drily, “[i]sit possible to imagine a case in which a constable secreted himself
somewhere in a coach and remainedthere for a period of time in order to
6.SeeRichard H. Fallon,Jr.,The ChimericalConcept of OriginalPublic Meaning, 107 VA.L.REV.
1421, 1424 (2021) (“Theleadingcurrent version[of originalism] is public meaning original-
ism.”); Lawrence B. Solum,Originalism Versus LivingConstitutionalism: The Conceptual Struc-
ture of theGreatDebate, 113 N
W.U.L.REV. 1243, 1251 (2019) (“Most contemporary originalists
aim to recover the public meaning of the constitutional text at the time each provision was
framedand ratified; this has beenthe dominant formof originalism since the mid-1980s.”).
7. RANDYE.BARNETT,RESTORINGTHELOSTCONSTITUTION:THEPRESUMPTION OFLIBERTY94-
95 (2014) (describing“original meaning originalism” as seeking “the public or objective
meaningthat a reasonable listenerwould place on the words used in the constitutional provi-
sion at the timeof its enactment”); Vasan Kesavan & Michael S. Paulsen,The Interpretive Force
of theConstitution’s Secret Drafting History, 91 G
EO.L.J. 1113, 1132-33 (2003) (describing a theory
of “original,objective-public-meaning textualism”) (emphasis omitted).
8.SeeLawrence B. Solum,TheInterpretation-ConstructionDistinction, 27 CONST.COMMENT. 95,
100 (2010) (“In general, interpretation recognizes or discovers the linguistic meaning of an
authoritative legal text.”);id.at 103 (“Conceptually, construction gives legal effect to the se-
manticcontentof a legaltext.”).
9.See,e.g., Laura Kalman,Border Patrol:Reflections ontheTurnto History in Legal Scholarship, 66
F
ORDHAML.REV.87, 121 (1997) (“Like precedent and Founders’ intent, historical analogies
can be indeterminate.”); Richard A. Posner,Past-Dependency, Pragmatism,and Critiqueof His-
toryinAdjudicationandLegalScholarship, 67 U. C
HI.L.REV. 573, 591 (2000) (“At best the
historical analogy furnishes a lesson that may be applicable to a current problem.”); Lawrence
Rosenthal,TheLimitsof SecondAmendment Originalismand theConstitutionalCase forGun
Control, 92 W
ASH.U.L.REV.1187, 1216 (2015) (pointing to examples that illustrate “the man-
ifoldproblems with the use of historical analogy” in Second Amendment cases).
10. 565 U.S. 400 (2012).
11.Id.at 420 (Alito, J., concurring).

the yale law journal133:992023
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monitorthe movements of the coach’s owner?”
12
He observed the absurdity of
that analogy: “This would have required either a gigantic coach, a very tiny con-
stable,or both—not to mention a constable with incredible fortitude and pa-
tience.”
13
Scalia gamely responded that such a situation “is not far afield—a con-
stable’s concealinghimself in the target’s coachin order to track its
movements.”
14
But perhapsrecognizingthe strainednature of the historical anal-
ogy, he ultimately disclaimed the need to rely on analogical reasoning at all: “In
any case, it is quite irrelevant whetherthere was an 18th-century analog. What-
ever new methods of investigation may be devised, our task,at a minimum, is to
decidewhetherthe action in question would have constituted a search within the
originalmeaningof the Fourth Amendment.”
15
JusticeScalia’s sidestep to public meaning originalism, however, seems una-
vailable under the historical-analogical approach inNew York State Rifle& Pistol
Ass’n v. Bruen.
16
Rejecting the SecondAmendmentframework adopted through-
out the federal courts of appeals—a test that relied on both history and scru-
tiny
17
—the Court held that contemporary gun laws must instead be evaluated
solely by comparisonto historicaltradition.
18
The Courtemphasizedthat appli-
cation of this new test would require not only historical citations, but historical
analogy akin to the sort critiqued by Justice Alito and disclaimed by Justice Scalia
inJones. In fact, theBruenmajority used versions of the word “analogy” nearly
thirtytimes.
12.Id.
13.Id.at 420 n.3.
14.Id.at 406 n.3 (majorityopinion).
15.Id.Justices Alitoand Scalia had a similar exchange in a First Amendment challenge to re-
strictionson violent videogames:
JUSTICEALITO: Well, I think what Justice Scalia wants to know is what James
Madisonthoughtabout video games.
(Laughter.)
JUSTICE ALITO: Did he enjoythem?
JUSTICE SCALIA: No, I want to knowwhat James Madison thought aboutvio-
lence.Was there any indication that anybody thought, when the First Amendment
was adopted, that there . . . was an exceptionto it for
. . .speech regarding vio-
lence?
Transcript of Oral Argument at 17, Brown v. Ent. Merchs. Ass’n, 564 U.S. 786 (2011) (No. 08-
1448);see alsoUnited States v. Hughes, No. 22-CR-00640, 2023 WL 4205226, at *9 n.15
(D.S.C. June 27, 2023) (citingthis Article and usingJonesandBrownto illustrate the “inherent
difficulty in findingan identical comparison”).
16. 142 S. Ct. 2111 (2022).
17.See infranotes 67-74 and accompanying text (discussing pre-Bruenmethodology).
18.Bruen, 142 S. Ct. at 2126;seeinfraSectionI.A (describingBruen’s approach).

originalism-by-analogy andsecondamendmentadjudication
105
From tiny constables toGPS devices, or frommuskets to AR-15s,
19
histori-
cal-a nalogicalreasoningraises serious challenges, which are evidentin lower
courts’ faltering efforts to applyBruento moderngun laws. Although there is
still time for courtsto developworkable standards(as the y did afterDistrict of
Columbiav. Heller
20
), post-Bruencases reveal an erratic, unprincipledjurispru-
dence, leading courts to strike down gun lawson thebasis ofthin historicaldis-
cussion and no meaningfulexplanationof historicalanalog y.
21
Some decisions
upholding gunlaws likewiseseemadrift, with courtsupholdingthe federal pro-
hibition ongun possessionby felonswithoutaddressing the well-recognized
lack of early historical predecessors
22
or concluding that firearm manufacturing
receives no SecondAmendment protectionat all because“makin g” is neither
“keeping”nor “bearing.”
23
Whether one celebrates or condemns the outcomes in any given case, the
new approach has generated wildly manipulable and unpredictablecase out-
comes.
24
In the year afterBruen,cour ts reached divergent results regarding the
constitutionality of lawsbanningpeople underfelony indictmentfromacqu iring
19.Jose ph Blocher & Darrell A.H. Miller, A Supreme Court Head-Scratcher: Is a Colonial Musket
‘Analogous’ to an AR-15?, N.Y. TIMES (July 1, 2022), www.nytimes.com/202 2/07/01/
opinion/guns-supreme-court.html [https://perma.cc/4WK2-2UFC].
20.554 U.S . 570 (2008); se e Eric Ruben & Jos eph Blocher, From Theory to Doctrine: An Empirical
Analysis of the Right to Keep and Bear Arms After Heller, 67 DUKE L.J. 143 3, 1488 (2018) (de-
scribing and measuring the development of doctrine after Heller).
21.See Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of
History, 73 DUKE L.J. (forthcoming 2023) (manuscript at 49- 68), ssrn.com/ab-
stract=4335545 [https://perma.cc/8846-NHYB] (analyzing resul ts from more than three
hundred lower-federal-court decisions in Second Amendment cases after Bruen).
22.See, e.g ., United States v. King, 634 F. Supp. 3d 78, 83 (S.D.N.Y. 2022) (arguing that Bruen did
not disturb the Supreme Court’s earlier approval in Heller of laws disarming felons without
discussing history).
23.Def. Distributed v. Bonta, N
o. CV 22-6 200, 2022 WL 15524977, at *4 (C.D. Cal. Oct. 21, 2022),
adopted, No. CV 22-6200, 2022 WL 15524983 (C.D. Cal. Oct. 24, 2022) (upholding a restriction
on manufacturing “ghost guns” bec ause it “ha s nothing to do with ‘kee p[ing]’ or ‘bea r[ing]’
a
rms”).
24.There also appear to be predictable ideological differences, at least in terms of the party of a
judge’s nominating President, with the vast majority of opinions finding gun laws constitu-
tionally impermissible after Bruen drafted by Republican-nominated judges. That would be
consistent with pre-Bruen trends showing a developing ideological split. See Adam M. Sa-
maha & Roy Germano, Judicial Ideology Emerges, at Last, in Second Amendment Cases, 13
CHARLESTON L. REV. 315, 345 (2018) (“The most recent data i ndicate that, unlike the early
years after Heller, judge ideology has become a significant predictor of judge votes in civil
gun rights cases.”).

the yale law journal133:992023
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new guns;
25
prohibiting assault weapons,
26
firearmswith obliterated serial num-
bers,
27
andlarge-capacitymagazines;
28
restrictingself-manufactured “ghost
guns”;
29
disarming unlawful users of controlled substances;
30
banninggun pos-
session by people convicted of nonviolent felonies;
31
barringgunsin “sensitive
places”suchas placesof worship, summer camps, urban mass transit, and Times
Square;
32
and prohibiting the purchase or carry of guns by eighteen- to twenty-
year-olds.
33
Perhaps mostprominently, inUnited States v. Rahimi,the Fifth Cir-
cuit disagreedwithotherpost-Bruencase law and struck downthe federal law
prohibiting thosesubject to a domestic-violencerestraining order from
25.CompareUnited States v. Kelly, No. 22-CR-00037, 2022 WL 17336578 (M.D. Tenn. Nov. 16,
2022) (holdingthat suchlaws were enforceable),withUnited States v. Quiroz,No. 22-CR-
00104, 2022 WL 4352482 (W.D. Tex. Sept. 19, 2022) (holding that such laws were unenforce-
able).
26. CompareHerrera v. Raoul, No. 23-CV-532, 2023 WL 3074799 (N.D. Ill. Apr. 25, 2023) (holding
that such laws were enforceable),withBarnett v. Raoul,No. 23-CV-209, 2023 WL 3160285
(S.D. Ill. Apr. 28, 2023) (holdingthat suchlaws were unenforceable).
27.CompareUnited States v. Reyna, No. 21-CR-41, 2022 WL 17714376 (N.D. Ind. Dec. 15, 2022)
(holdingthat such laws were enforceable),withUnited States v. Price, 635 F. Supp. 3d 455
(S.D. W. Va. 2022) (holdingthat such laws were unenforceable).
28. CompareOr. Firearms Fed’n v. Brown,No. 22-CV-01815, 2022 WL 17454829,at *9 (D. Or.
Dec.6, 2022) (holdingthat such laws were enforceable),withRocky Mountain Gun Owners
v. Bd. of Cnty. Comm’rs of Boulder Cnty., No. 22-CV-02113, 2022 WL 4098998 (D. Colo.
Aug. 30, 2022) (holding that such laws were unenforceable).
29. CompareDef. Distributedv. Bonta, No. CV 22-6200,2022 WL 15524977 (C.D. Cal. Oct.21,
2022),adopted, No. CV 22-6200, 2022 WL 15524983(C.D. Cal. Oct. 24, 2022) (holding that
such laws were enforceable),withRigby v. Jennings, 2022 WL 4448220 (D. Del. Sept. 23, 2022)
(holding that such laws were unenforceable).
30. CompareUnited States v. Daniels, 610 F. Supp. 3d 892,897 (S.D. Miss. 2022) (holding that
suchlaws were enforceable),withUnited Statesv. Harrison,No. CR-22-00328, 2023 WL
1771138, at *24 (W.D. Okla. Feb. 2, 2023) (holding that suchlaws were unenforceable).
31.CompareUnited States v. Jackson, 69 F.4th 495, 504 (8th Cir. 2023) (holding that such laws
are enforceable and “there is no requirementfor an individualized determination of danger-
ousness as to each person in a class of prohibitedpersons”),withRange v. Att’y Gen., 69 F.4th
96, 101-06 (3d Cir. 2023) (holding that suchlaws were unenforceable againsta plaintiff con-
victed of makinga false statement to obtain food stamps in violation of a state law).
32.See infranotes 216-234 and accompanying text (discussing divergent outcomes within theAn-
tonyukline of holdings).
33.CompareNat’l Rifle Assoc. v. Bondi, 61 F.4th 1317, 1320 (11th Cir. 2023) (holding that such
laws were enforceable in the contextof purchasing),withFraser v. Bureau of Alcohol, Tobacco,
Firearms& Explosives, No. 22-CV-410, 2023 WL 3355339 (E.D. Va. May 10, 2023) (holding
that suchlaws were unenforceable in the contextof purchasing),andFirearms Pol’y Coal.,
Inc. v. McCraw, No. 21-CV-1245, 2022 WL 3656996, at *11 (N.D. Tex. Aug. 25, 2022) (holding
that such lawswere unenforceable in the context of carrying).

originalism-by-analogyand second amendment adjudication
1
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possessing a gun,declaring it an “outlier[] that our ancestorswouldnever have
accepted”
34
—thoughevery court prior toBruenhad done exactly that.
As this Articlewas in its final stages of editing, the Supreme Court granted
certiorari inRahimi,
35
which will be briefed and argued as the Article goes to
print. Thecase presents a tremendousopportunity for the Justices to correct
some of the most significantdeveloping trendsin post-Bruendoctrine. Indeed,
Rahimiexemplifiesperfectly the three major challenges we have identified and
addressed here:the essential task of articulating principles of relevant similarity,
the importance and difficultyof managing anachronismthrough levels of gen-
erality, and a proper recognitionof the judiciary’s institutional limitations. We
do not expect the Courtto explicitly reviseBruen. ButRahimiis an idealchance
to fix some attendant doctrinal problems before they spread further.
As a matter of legal scholarship,Bruen’s historical-analogical approach raises
novel challenges for the relationshipbetween law and history and implicates two
rich scholarly literatures that,untilnow, have had relatively little interaction. For
generations, scholars—somedrawingon psychology and cognitive science—
have attemptedto bothdescribe and evaluate analogicalreasoning in law.
36
But
scholarshipon analogical reasoninghas tended to focus on similarity as “seen
betweencases”
37
and not between laws and practicesacross time.
38
In his enor-
mously influential work on analogicalreasoning, Cass Sunstein makes this dis-
tinctionexplicit: “In the United States, mostconstitutional cases are decidednot
by reference to constitutionaltext or history, but through analogies and thus
through casuisticalreasoning.”
39
34. United States v. Rahimi, 61 F.4th 443, 461 (5th Cir. 2023) (quoting N.Y. State Rifle & Pistol
Ass’n v. Bruen,142 S. Ct. 2111, 2132 (2022)) (strikingdown the federal law prohibiting gun
possession by those subject to a domestic-violence restrainingorder).But seeUnited States v.
Kays, No. CR-22-40, 2022 WL 3718519, at *5 (W.D. Okla. Aug. 29, 2022) (findingthe same
law, 18 U.S.C. § 922(g)(8), to be enforceable).
35. United States v. Rahimi, 143 S. Ct. 2688(2023).
36. See infraSectionII.A.2(discussing literature on analogicalreasoning).
37. EDWARDH.LEVI,ANINTRODUCTION TOLEGALREASONING2 (1949) (emphasisadded);see
alsoB
ENJAMINN.CARDOZO,THENATUREOF THEJUDICIALPROCESS31-34 (1921)(describing
the method through which “the professionalexperts who make up the lawyerclass” could
concludewhen cases are “the same” or not).
38. An elementof comparison across timeis present even when simply comparingprecedent, but
it is pronounced for originalism due to its commitment to the fixation thesis—thenotion that
the meaningof a constitutionalprovision is set at the timeof ratification. Lawrence B. Solum,
The FixationThesis: TheRole of HistoricalFact in OriginalMeaning, 91 N
OTREDAMEL.REV. 1,
1 (2015).
39. Cass R. Sunstein,AnalogicalReasoning2 (Harv. Pub.L. Public Working Paper, Paper No. 21-
39, 2021), ssrn.com/abstract=3938546 [https://perma.cc/4XSF-ZQME];see also id.at
32 (“Indeed, American constitutional law is often constructed from analogies—not fromtext
or history, not from moral theory, and not from existing social consensus.”).

the yale law journal133:992023
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Meanwhile, the originalism literature has primarily focused onquestions like
why history should be binding,
40
whether historicalanalysis is constraining,
41
whetherjudges are well-positioned to performit,
42
and which historical materi-
als matter.
43
Some of that debate isimplicitly about analogicalreasoning;to cri-
tiquean originalist opinionas anachronisticis to argue thatthere are insufficient
principles of relevant similarityconnectin g historical sources to a contemporary
legal challenge.
44
But originalist scholarship has notthorou ghlyengagedwith
the literature on analogicalreasoning, norvice versa. Given the Court’s turnto
originalism-by-analogy, such engagement has never beenmoreessential.
In Part I, weexplainBruen’s method,whichinstructsthat courts musteval-
uate the constitutionality of modernweapons lawsby analogizingto historical
predecessors. The majorityopinion highlighted twononexhaustive “metrics”to
guidethat comparison—“how” and“why” historicaland modernlawsburden
armed self-defense—but also introduceda variety ofadditionaland alternative
principles.
45
WhetherBruen’s approachcan be classifiedas originalist, tradition-
alist, or something else entirely depends on how one definesthoseinterpretive
methods—a deeply contested set of questions wedo not purportto resolve. But
whatever label one applies, originalism-by-analogy differs in importantways
from standard approaches to historical reasoning, raising distinctive and un-
addressedchallenges.
46
In Part II, weexplore three of thesechal lengesand offer some doctrinal so-
lutions. First, as theBruenmajority recognized,“because ‘[e]verything is similar
40.See, e.g ., John O. McG innis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 2007
NW. U. L. REV. COLLOQUY 1, 14 (“[O]riginalism provides a theory of constitutional interpre-
tation that has good consequences even though it does not for ce judges to assess consequences
on a case-by-case basis.”).
41.See, e.g ., William Baude, Originalism as a Constraint on Judges, 84 U. CHI. L. REV. 2213, 2214-15
(2017) (considering ways that originalism does and does not constrain judges).
42
.See, e.g., Jonathan Gienapp, Knowing How vs. Knowing That: Nav igating the Past, PROCESS
(Apr. 4, 2017), www.processhistory.or g/gienapp-knowing-how [htt ps://
perma.cc/4MNZ-SEU9] (“Lawyers are trained to read the Constitution’s words embedded in
modern language games—which is also how virtually every contemporary American
citizen read s them. This is a highly credible way to interpret the document . . . . But, for
better or worse, what it cannot do is locate the text’s original meaning.”).
43
.See, e.g ., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV.
101, 107 (2001) (“With original meaning, then, more ‘historical context’ is not automatically
preferred. To the contrary, originalism requires a limited focus on certain types of evidence of
historical meaning: that evidence that most cle arly indicates the public meani ng of the text
that is being interpreted at the time it was adopted.”).
44.See supra note 9 (collecting critiques).
45.See infra Part I.
46.See infra Part I.

originalism-by-analogy andsecondamendmentadjudication
109
in infinite ways toeverything else,’ one needs‘some metric enablingthe analo-
gizer to assess which similaritiesare important and whichare not.’”
47
Indeed, the
very essence of analogical reasoningis comparingtwo or morethings by refer-
ence to principles of relevant similarity.
48
While others have criti cizedBruen’s
impacton public safety
49
and its reading ofthe historical record,
50
our concern
is that the opinion failed to provide, letaloneapply, sufficientprinciples to guide
the novel historical-comparative doctrine it created.It is thusunsurprisingthat
manypost-Bruenopinions look likeconclusionsaccompanied byhistorical cita-
tions, with little connecting the two.
51
We turnto the literature on analogical
reasoning tohelpexplainthis shortcoming and why courtsneedto deri ve prin-
ciples tomediate the analogical process.
52
Second, by requiringdirectcomparisonbetweenmodernand historicalprac-
tices, the historical-analogi cal approachraisesacut e problemsof anachronism.
53
It is one thing to askwhether a historically derived rightto armed self-defense
can be legitimately burdenedby a modern prohibitionon gunposs essionin sub-
ways or airplanes; it is quite another to askwhethersuchprohibitions have an-
alogues at a time before subways and airplanesexisted.How can courtsuse his-
toricalcomparators toevaluatethe constitutionalityof contemporary gun laws
involving firearms orplaces that did notexist at the Founding, orwhich reflect
recognition of problems (and, for that matter, people) the Framersfailedto ad-
dress? Whathistorical analogues shouldguideevaluation ofmoderndomestic-
47.N.Y. State Rifle & Pistol Ass’n v . Bruen, 142 S. Ct. 2111, 2132 (2022) (quoting Frederick
Schauer & Barbara Spellman, Analogy, Expertise, and Experience, 84 U. CHI. L. REV. 249, 254
(2017) (in-ternal citations omitted)); see also LARRY ALEXANDER & EMILY SHERWIN,
DEMYSTIFYING LEGAL REASONING 76-83 (2008) (“Similarities are infinite; therefore some
rule or principle is neces-sary to identify important similarities.”).
48.See infra Section II.A.2 (discus sing the emphasis on principles of relev ant similarity in schol-
arship on analogical reasoning in law).
49.See, e.g., Joh n J. Donohue, The Supreme Court’s Gun Decision Will Lead to More Violent Crime,
WASH. POST (Ju ly 8, 2022, 2:29 PM), https://w ww.washingtonpost.com/
outlo ok/2022/07 /08/guns-crime-bruen-supreme-court [https://perma.cc/J42E-8VRH].
50.See, e.g ., Charles, supra note 21; Patr ick J. Cha rles, The Fugazi Second Amendment: Bruen’s Te xt,
History, and Tradition Problem and How to Fix It, 71 CLEV. ST. L. REV. (forthcoming 2023);
Cornell, supra not e 1.
51.See B rannon P. Denning & Glenn Harlan Reynolds, Retconning Heller: Five Takes on New York
Rifle & Pistol Association, Inc. v. Bruen, 65 WM. & MARY L. REV. (forthcoming 2023) (man-
uscript at 20), ssrn.com /abstract=4372216 [https://perma.cc/R84M-TWR2] (“Given
the number of questions about the analogical process left open in Bruen, we think you might
(if somewhat uncharitably) say that the three phases of Second Amendment analysis post-
Bruen a re: (1) Consult text, history, tradition; (2) ? ; (3) Decision.”).
52
.See infra Section II.A.
53.See infra Part II.

the yale law journal133:992023
110
violence restrictions that were adopted specifically to break from a legal tradition
that undervalued women’s lives?
54
Originalism-by-analogy must be ableto accommodate the immense differ-
ences between historicaland modern weapons and violence,as the Court itself
recognized in defining the class of“Arms” to include modern weapons.
55
Adjust-
ing the level of generality atwhich the historical inquiry is conducted can miti-
gate the risk of anachronism. For example, a courtevaluating the modern do-
mestic-violence prohibition might recognize a historical tradition of disarming
dangerous persons generally,
56
rath er than domestic abusers particularly. There
are good reasons to operate ata high level of generality to mitigate the risk of
anachronism.But whatever level of generality a court selects, it should beevenly
applied—not, forexample, describing theright at a broad level ofgenerality and
then narrowly definingthe set ofrelevant historical regulations.
57
Third, and finally, originalism-by-analogy should be applied with attention
to at least twomatters of institutional competence.
58
Firs t, courts should be care-
ful about basing broaddecisions on asupposed lackof historicalevidence, given
that they simplydo not have the time orability to identify all the relevant his-
torical comparators.Neither do profess ional historians,whose research pro-
grams do notconformto a court’s briefing schedule.
59
A relati ve dearth of his-
toricalevidence might simply reflect institutional limitations, not constitutional
analysis. Second, and to a degreethat has been underappreciated byboth those
who criticize and those whocelebrate it, the historical-analogical method actu-
allyrelieson contemporary empiricalevidence.Bruenspecificallyrequires that
modern and historical laws be compared withregardto “why” and “how”they
burden armed self-defense, and conducting thatcomparison withoutevidence
regardingthe justification and operationof the modernlaws—matters on which
legi slativedeference maybe appropriate—is impossible.
54.Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117,
2119 (1996) (describing the process of “preservation through transformation”); see also Joseph
Blocher & Reva B. Siegel, Guided by History: Protecting the Public Sphere from Weapons Threats
Under Bruen, 98 N.Y.U. L. REV. (forthcoming 2023) (manuscript at 27-31), https://
ssrn.com/abstract=4355024 [https://perma.cc/D6PU-DN2D] (critiquing, inter alia, Rahimi
for mis-applying Bruen’s method).
55.See infra note s 317-318, 404 -408 and accompanying text.
56.See Joseph Blocher & Caitlan Carberry, Historical Gun Laws Targeting “Dangerous” Groups and
Outsiders, in NEW HISTORIES OF GUN RIGHTS AND REGULATION: ESSAYS ON THE PLACE OF
GUNS IN AMERICAN LAW AND SOCIETY (Joseph Blocher, Jaco b D. Charles & Darrell A.H. Miller
eds., Oxford Univ . Press forthcoming 2023), ssrn.com/abstract=3702696 [https://
perma.cc/UDX3-UZDE].
57.See infra Section II.B.2.
58.See infra Section II.C.
59.See infra note s 338-344, 411-417 and accompanying text (describing institutional limitations).

originalism-by-analogy andsecondamendmentadjudication
111
In the wake ofBruen, courts facea Se cond Amendment“terra incognita” akin
to thatfollowingDistrict of Columbiav. Heller.
60
Addressing the challenges we
identify is the first step towardarticulating coherent and meaningful legal rules,
andRahimipresents an incredibly valuable opportunity to doso. To the degree
thatBruenand other cases from the2021-2022 Term are a harb inger ofa broader
change in theSupreme Court’s approachto history and constitutional law,
61
grappling with originalism-by-analogy will be a central challenge for many years
to come.
i.bruen’snovel approach tohistorical analogy
The Supreme Court’s2008 decision inDistrict ofColumbiav. Hellerwas both
celebrated and criticized as a high-water mark of originalism.
62
New YorkState
Rifle & Pistol Ass’n v. Bruenappears to have pushed thatmark even higher,despite
adopting a different approach to constitutional historicism—onethat does not
simply identify the original public meaning of constitutional text and then apply
standard doctrinal rules (asHeller’s progeny did), butpurportsto reas on directly
and exclusively by analogyto the historicalrecord.
60.United States v. Mascianda ro, 638 F.3d 458, 475 (4th Cir. 2011) (describing “the dilemma faced
by lower courts in the post-Heller world” and explaining that “[t]he whole matter strikes us
as a
vast terra incognita that courts should enter only upon necessity and only then by small
degree”).
61.S
ee, e.g., Michael C. Dorf, The Injustice, Insincerity, and Destabilizing Impact of the SCOTUS
Tur
n to History, VERDICT (Oct. 26, 2022), verdict.justia.com/2022/10/26/the-injustice
-insincerity-and-destabilizing-impact-of -th e-scotus-turn-to-history [https://
perma.cc /R2FG-KCCC]; Jimmy Hoover, Supreme Court Embraces Originalism in
‘Momentous’ Ter m, LAW360 (July 1, 2022, 9:58 PM) , www.law360.com/
insurance-authority/articles/1508127/supreme-court-embraces-originalism-in-momentous-
term [https://perma.cc/43PZ-W39U]; Adam Liptak, A Transformative Term at the Most
C
onservative Court in Nearly a Century, N.Y. TIMES (July 1, 202 2), https://
www.nytimes.com/2022/07/01/us/supreme-court-term-roe-guns-epa-decisions.html
[https://per ma.cc/R5TU-RBFD] (“The term was a triumph for the theory of constitutional
interpretation known as originalism, which seeks to identify the original meaning of
constitutional p
rovisions using the tools of historians.”); Nicholas Tomaino, The Conservative
Supreme Court Has Arrived, WALL ST. J. (July 1, 2022, 4:28 PM ET) www.wsj.com/
articles/the-conservative-court-has-arrived-paul-clement-dobbs-bruen-religion-
administrative-state-justice-roberts-alito-thomas-11656692402
[https://perma.cc/YRA7-6TFC]; Randy E. Barnett & Lawrence B. Solum, Originalism After
Dobbs, Bruen, and Kennedy: The Role of History and Tradition, NW. U. L. REV. (forthcoming
2023).
62.See, e.g., Randy E. Barnett, News Flash: The Constitution Means What It Says, WALL ST. J.
(June 27, 2008, 12:01 AM ET), www.wsj.com/articles/SB121452412614009067
[https://perma.cc/SM24-BKHU] (calling
Heller “the finest example of what is now called
‘original public meaning’ jurisprudence ever adopted by the Supreme Court”); Jamal Greene,
Hell er High Water? The Future of Originalism, 3 HARV. L. & POL’Y REV. 325, 326 (2009)
(“[E]ven if Heller is a triumph for originalism, it might also be its high water mark.”).

the yale law journal133:992023
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InBruen, the Court struck down aNew York law requiring thatan individua l
demonstrate a heightened riskof beingattacked inorderto obtain a permitto
carry a concealed handgun for self-defense.
63
That outcome had an immediate
and significant impact on the roughly 80 millionpeople living in states with dis-
cretionary, “may-issue” lic ensing laws likeNew York’s;
64
it required those states
to adoptmorepermissive“shall-issue” policies that can includeobjective criteria
like minimal training, butnot an applicant’s self-defense need.
65
But the broader and morelasting impactofBruenwill be the novel approach
the Courtadopted forevaluating SecondAmendmentchallenges.
66
Before
Bruen, courts applied a conventional methodology that combinedhist oricalanal-
ysis with considerationof contemporary costsand benefits. AsBruenrecognized:
“[T]he Courts of Appeals [had] coalesced around a ‘two-step’ framework for
analyzing SecondAmendment challenges thatcombines history with means-
end scrutiny.”
67
In fact, that framework was adoptedby every federal courtof
appeals to consider the question.
68
Under this consensus approach,courts would
“ask if the restricted activity is protectedby the SecondAmendment in thefirst
place; and then, if necessary, [they would]. . . apply the appropriate level of
63.N.Y. State R ifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2122 (2022).
64.Adam Liptak, Supreme Court Strikes Down New York Law Limiting Guns in Public, N.Y. TIMES
(June 23, 2022), www.nytimes.com/2022/06/ 23/us/ supr eme-court-ny-ope n-c arry-
gun-law.html [https://perma.cc/ 9NKZ-MG5N].
65.See Bruen, 142 S. Ct. at 2138 n.9 (noting tha t “nothin g in our analysis shoul d be int erpr eted to
suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes”); id. at 2162
(Kavanaugh, J., concurring) (“[S]hall-issue licensing regimes are constitutionally permissi-
ble” ).
66.Along with Darrel
l A.H. Miller of Duke Law School, we filed an amicus brief in support of
neither side urging the Court to adopt the two-part framework embraced throug hou t t he
federal courts of appeals before Bruen. See Brief of Second Amendment L aw Professors as
Amici Curiae in Support of Neither Party, N.Y. State Rifle & Pistol Ass’n. v. Bruen, 142 S. Ct.
211
1 (No. 20-843), 2022 WL 2251305 . Bot h of us later separately testified before the Senate
Jud iciary Committee about Bruen’ s analogical approach, and some of the exposition in this
Article i s reflected in that te stimony. A fter the Highland Park Attack: Protecting Our
Communities from Mass Shootings: Hearing Before the S. Comm. on the Judiciary, 117th Cong.
(2022) (written testimony of Joseph Blocher), www.judiciary.senate.gov/imo/
media/doc/Testimony%20-%20Blocher%20-%202022-07 -20 .pdf [https://perma.cc/5RUY-
NB CA]; Protecting Pub-lic Safety After New York State Rifle & Pistol Association v. Bruen:
Hea ring Before the S. Comm. on the Judiciary, 118th Cong. (2023) (written testimony of Eric
Ruben), www. judiciary.senate.gov/imo/media/doc/2023-03-14%20-%20Testimony%
20-%20Ruben.pdf [https://perma.cc/VEJ2-7XH E].
67.Bruen, 142 S. Ct. at 2125; see also Ruben & Blocher, supra note 20 (providing a comp rehensive
rev iew of post-Heller Second Amendment doctrine).
68.Bruen, 142 S. Ct. at 2174 (Breyer, J., dissenting) (“[E]very Court of Appeals to have addressed
the question has agreed on a two-ste p fra mework for evaluating whether a firearm regulation
is consistent with the Second Amendment.”).

originalism-by-analogyand second amendment adjudication
1
13
scrutiny.”
69
Thefirst part of this framework was a “threshold question [of]
whetherthe regulated activity falls within the scope of the Second Amend-
ment”
70
based on a “historical understanding of the scope of the . . . right.”
71
“[I]f the historicalevidenceis inconclusive or suggests that the regulated activity
isnotcategorically unprotected[,]thenthere must be a second inquiry into the
strength of the government’s justification for restricting or regulating the exer-
cise of Second Amendment rights.”
72
At this latter step, courts would “evaluate
the regulatory meansthe government has chosen and the public-benefits end it
seeks to achieve.”
73
The pre-Bruendoctrine conformed the Second Amendment right to other
constitutional tests; indeed, the methodology was expressly borrowed from First
Amendment cases.
74
Bruenrejected that approach,instead holding that modern
gun laws, includingthose addressing problems unknown to or unrecognized by
the Foundinggeneration, mustbe evaluated based on whether they are con-
sistentwithhistoricaltradition.
Our concernhere is not withBruen’s reading of history, which others have
criticized, but itsuseof that history—that is, the guidance it gives (and fails to
give) about how to reason from historical sources. Ourcritique is therefore
methodologicalratherthan historical.Bruenmandatesa historical-analogical
approachto Second Amendment adjudication but does not articulate or apply a
coherent approachto analogicalreasoning. The majority opinion invokes a vari-
ety of alternative and sometimes-conflicting considerations, and its primary
“metrics” of relevantsimilarity—“why” and “how”modernand historical gun
laws burdened armedself-defense—are plainly insufficientto resolve concrete
cases.
75
Though these difficulties sharesome characteristics with commonob-
jections to originalismin general,they also marka significant departure from
standardapproaches to originalism, like the search for original public meaning.
76
And that novelty in turn raises serious challengesfor implementation, which we
address in Part II.
69. United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017) (quoting GeorgiaCarry.org, Inc. v.
Georgia, 687 F.3d 1244, 1260 n.34 (11th Cir. 2012)),cert.denied, 139 S. Ct. 846 (2019).
70. Ezellv. City of Chicago, 846 F.3d 888,892 (7th Cir. 2017).
71. Jackson v. Cityand Cnty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014) (quoting Dist.
of Columbia v. Heller, 554 U.S. 570, 625 (2008)).
72. Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019) (quoting Ezell v. City of Chicago, 651 F.3d
684, 703 (2011)).
73.Id.(internalquotation marksomitted) (quotingEzell, 651 F.3d at 703).
74. See,e.g., United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010) (lookingto the First
Amendmentfor guidance on deriving the pre-Bruenframework).
75.See infraSectionII.B.
76. See infraSection I.B.

the yale law journal133:992023
1
14
A.Bruen’s NovelApproach
Bruenopenedby holdingon textualistand originalist grounds that the right
to keepand beararmsextends outside the home, a propositionthe parties did
not contest.
77
Thatholding was not surprisingmethodologically, nor did it dis-
rupt much existing doctrine, since lower courts had overwhelmingly held or as-
sumed as much to be true.
78
But in implementing its holding by setting rules to determine whichgun
laws are consistentwiththe right to bear arms,Bruenannouncedan entirely new
framework:
In keeping withHeller, we hold that when the SecondAmendment’s
plain text coversan individual’s conduct, the Constitution presumptively
protects that conduct.To justify its regulation, the government may not
simply positthat the regulationpromotes an important interest. Rather,
the government mustdemonstrate that the regulation is consistentwith
this Nation’s historicaltradition of firearm regulation. Only if a firearm
regulation is consistent withthis Nation’s historicaltradition may a court
conclude that the individual’s conduct falls outside the Second Amend-
ment’s “unqualified command.”
79
Thisnew historical test represented a sea change in doctrine, calling into ques-
tion morethan one thousand post-Hellercasesthat had beendecided on grounds
that were not exclusively historical and analogical.
80
And because that historical
recordis contested, unclear, and incomplete, it of course will not provide clear
guidancein all cases.
81
To fill the gap,Bruenemphasized repeatedly that its
77. N.Y. StateRifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2122 (2022).
78. SeeRogersv. Grewal, 140 S. Ct. 1865, 1868 (2020) (Thomas, J., dissenting from denial of
certiorari) (observinghow lower courts had eitherfound or assumed that the Second Amend-
mentextended outside the home).
79. Bruen, 142 S. Ct. at 2126;see also id.at 2129-30 (reiterating this test nearly verbatim).
80. Onemeasure of this disruption was the fact that, within days ofBruen, nearly every Second
Amendmentcase on Westlaw was apparently marked witha red flag. Unfortunately, Westlaw
does not—or would not, in response to queries—account for how many red flags were added
or why, so this is simply our ownobservation.
81.See,e.g., Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 91 (2d Cir. 2012) (“History and tradi-
tion do not speakwith one voice.”); Heller v. Dist. of Columbia, 670 F.3d 1244, 1275 (D.C. Cir.
2011) (Kavanaugh, J., dissenting) (“[W]hen legislatures seek to address new weapons that
have not traditionally existed or to imposenew gun regulationsbecauseof conditionsthat
have not traditionally existed, there obviously will not be a history or tradition of banning
such weaponsor imposingsuchregulations.That doesnot mean the Second Amendment
does not apply to those weapons or in those circumstances. Nor does it mean that the

originalism-by-analogy andsecondamendmentadjudication
115
methodology will require litigants and judges to make analogies to historical
regulations.
82
Many havehighlighted the difficulty of derivingworkable rules
fromBruen,
83
and we share the viewthat its guidance is in sufficient at best. In
the following sections, we identifythe major elements of its framework before
turning to some attendant complications inPart II.
1. The “Plain-Te xt” Threshold
WhileBruendismissed the consensus two-part approachapplied in the
lower courts as having“one step too many,”
84
it introduced a two-part test of its
own—onethat appears to prescribe a historical-analogical inquiryonly in a sub-
set of Second Amendment disputes.
85
In particular, the majority said that “when
the Second Amendment’s plain text coversan individual’s conduct . . . the gov-
ernment must demonstrate that the regulation is consistent with thisNation’s
historical tradition of firearm regulation.”
86
Since the word“when” functionsas
a conditional, the reach ofBruen’s historical-analogical test appears limited only
to those cases already covered by the“plain text” of theAmendment.
87
Four featuresofBruen’sinitial textual inquiry are particularl y notable. First,
even a plain-text inquirywill involve sig nificant judicial discretion. InBruenit-
self, the Court had no trouble concluding that the plain text of the Amendment
covers “carrying handgunspubliclyfor self-defense.”
88
In keeping with some
other courts, the majority found this resultto be compelled by the plain text of
government ispowerless to address those newweapons or moderncircumstances. Rather,in
suchcases, the proper interpretive approach is to reason by analogy from history and tradi-
tion.”).
82.As noted above, the opinion contained more than thirty references to versions of the word
“analogy.” See supra p. 104.
83.See Alschuler, supra note 1; Randy E. Barnett & Nelson Lun d, Implementing Bruen, LAW &
LIBERTY (Feb. 6, 2023), lawliberty.org/implementing-bruen [https://perma.cc/ZFE7
-V3RQ]; Charles, supra note 21; Denning & Reynolds, supra note 51 (manuscript at 20).
84.Bruen, 142 S. Ct. at 211 7.
85.United States v. Rahimi, 59 F.4th 443, 453 (5th Cir. 2023) (“Bruen articulated two analytical
steps.”); Nat’l Rifle Ass’n v. Bondi, 61 F.4th 1317, 1329 (11th Cir. 2023) (“[W]e read Bruen as
articulating two analytical steps.”).
86.Bruen, 142 S. Ct. at 2130 (emphasis added).
87.To the extent the Court is drawing a clear distinction between textual and historical inquiries,
that itself is a departure from conventional originalist approaches that consider contempora-
neous history to determine original meaning. See, e.g., Michael D. Ramsey, Missou ri v. Hol-
land and Historical Textualism, 73 MO. L. REV. 969, 974 (2008) (“A text’s historical meaning
a
rises from the context in which it was writt en and from the common meaning of its words
in the ordinary language of that particular time.”).
88.Bruen, 142 S. Ct. at 2134.

the yale law journal133:992023
116
the word “bear.”
89
But, of course,reading self-defense into the phrase “bear
arms” is itself a deeply contested historical claim
90
and hardto justify based
solely on the unadorned text,even if it might be supportable onother grounds.
Second, these discretionary choices about plain text shape not only the scope
of Second Amendment rights, but also the downstream application ofBruen’s
historical-analogicaltest, since the scope of the rightimpacts perceptions of how
heavy the burden imposed actually is.
91
By framingthe plain text asprotectinga
right to“carry[] handgunspubliclyfor self-d efense,”
92
the Court inBruenaccen-
tuated the burdens imposed by New York’s public-carry law. Those burdens
wouldhave looked less significant if the Courthad defined the relevant conduct
as, forexample, the ability to carryweaponsfor self-defense, let alone the right
to keep and bear arms as awhole.
93
If a broader slice of the right to keepand
bear arms were used asthe denominator,the constitutional burden imposedby
New York’s handgun law would lookcomparativelysmaller.
94
Third, the plain text of the SecondAmendment simply does not address
many gun-rights claims. The plain textof the word“arms,”for example, does
not distinguish between handguns andthe “dangerous and unusual weapons”
89.See id. at 2135 (“The Second Amendment’s plain text thus presumptively guarantees petition-
ers Koch and Nash a right to ‘bear’ arms in public for self-defense.”); Moore v. Madigan, 702
F.3d 933, 936 (7th Cir. 2012) (“The right to ‘bear’ as distinct from the right to “keep” arms is
unlikely to refer to the home. T o speak of ‘bearing’ arms within one’s home would at all times
have been an awkward usage. A ri ght to bear arms thus implies a right to carry a loaded gun
outside the home.”); Young v. Ha waii, 992 F.3d 765, 831 (9th Cir. 2021) (O’Scannlain, J.,
dissenting) (“The evidence that the Second Amendment’s Framers and ratifiers understood
the right to bear arms to encompass public carry is not only lexical, but logical.”).
90.See, e.g ., Dennis Baron, Corpus Evidence Ill uminates the Meaning of Bear Arms, 46 HASTINGS
CONST. L.Q. 509 (2019); Neal Goldfarb, Corpora and the Second Amendment, LAWNLINGUIS-
TICS (
Aug. 8, 2018), lawnlinguistics.com/corpora-and-the-second-amendment
[
ht tps://perma.cc/Z6QQ-D3SU]; Alison L. LaCroix, Historical Semantics and the Meaning of
t
he Second Amendment, PANORAMA (Aug. 3, 2018), thepanorama.shear.org/2018/08
/03 /historical-semantics-an d-the-meaning-of-the-second-amendment [htt ps://
perma.cc/7SL4-R292].
91.See infra Section I.A.3.
92.Bruen, 1 42 S. Ct. at 2134.
93.For another example of a court defining the textually protected right in a way that increases
the government’s burden to defend a regulation, see Boland v. Bonta, No. SACV-22-01421,
2023 WL 2588565, at *6 (C.D. Cal. Mar. 20, 2023) (concluding that the Second
Amendment’s plain text covers “purchasing state-of-the-art handguns on the primary market”
and then striking down a law requiring certain safety features as impinging that protected
conduct).
94.See generally Jose ph Blocher, Bans, 129 YALE L.J. 308 (2019) (discussing denominator problems
in Second Amendment cases); Eric Ruben, Law of the Gun: Unrepresentative Cases and Distorted
Doctrine, 107 IOWA L. REV. 173 (2021) (discu ssing gun-centricity in Second Amendment cases).

originalism-by-analogy andsecondamendmentadjudication
117
that the Supreme Court said are not covered,
95
nor does it clearly indicate
whether manufacturing untraceable “ghost guns”is covered.
96
Thatis not to say
that such weapons necessarily fall outside the Amendment, onlythat the lines
must be drawn based on considerations beyondthe unadorned plaintext.To the
degree that the heavy historical burden thatBruenprescribes is triggeredonlyby
cases involving the “plain text” ofthe Second Amendment, itsreach should be
relatively circumscribed.
Fourth, it seems plausible that some courts will resolve casesat this plain-
text stage in order toavoid the difficulties of applyingBruen’s historical-analog-
ical analysis.
97
Consider the federal law prohibiting gunposs ession by domestic-
violencemisdemeanants.
98
Prior toBruen, thatlaw was universally upheld
against Second Amendment challenges.
99
Yet th ere were no historic al laws spe-
cifically prohibiting gun possession by domestic-violence offenders in1791.
100
As
we argue below,
101
searching for such a “historicaltwin” would becontrary to
95.Dist. of Columbia v. Heller, 554 U.S. 570, 627 (2008); cf. Bryan Garner (@BryanAGarner),
TWITTER (May 25, 2022, 4:11 PM), twitter.com/BryanAGarner/status/1529555870031
527939 [https://perma.cc/X49L-B2RB] (“If, alas, we can’t repeal the Second Amendment,
let’s s ay its meaning extends only to technologies of the caliber (ahem) that existed when it
took effect: muskets that required eight seconds to reload between shots. The Second
Amend-ment has nothing to do with assault rifles.”). Garner is editor-in-chief of Black’s Law
Diction-ary and has co-authored two books with Justice Scalia: BRYAN A. GARNER &
ANTONIN SCALIA, MAKING YOUR CASE: THE ART OF PERSUADING JUDGES (2008) and BRYAN A.
GARNER & ANTO-NIN SCALIA, READING LAW: THE INTERPRETATION OF LEGAL TEXTS (2012).
96.Compare Rigby v. Jennings, No. CV-21-1523, 2022 WL 4448220, at *7 (D. Del. Sept. 23, 2022)
(concluding that the plain text of the Second Amendment covers unfinished lower receivers),
with Def. Distributed v. Bonta, No. CV-22-6200, 2022 WL 15524977, at *4 (C.D. Cal. Oct. 21,
2022), adopted, No. CV-22-6200, 2022 WL 15524983 (C.D. Cal. Oct. 24, 2022) (concluding
that the plain text of the Second Amendment does not cover home manufacture of firearms).
97.See, e.g., Ocean State Tactical, LLC v. Rhode Island, No. 22-CV-246, 2022 WL 17721175 (D.R.I.
Dec. 14, 2022); Or. Firearms Fed’n, Inc. v. Brown, No. 22-CV-01815, 2022 WL 17454829 (D.
Or. D
ec. 6, 2022); Bonta, No. CV-22-6200, 2022 WL 15524977.
98.See 18 U.S.
C. § 922(g)(9) (2018).
99.But see Unit ed States v. Per ez-Gallan, No. 22-CR-00427, 2022 WL 16858516, at *12 (W.D. Tex.
Nov. 10, 2022) (holding that because “the historical record does not contain evidence sufficient
to support the federal government’s disarmament of domestic abusers,” it is unconstitutional
to prohibit gun possessi on by those subject to domestic-violence restraining orders).
100.Congress disqualified domestic-violence misdemeanants from gun possession for the first
time in 1996 after concluding that “[e] xisting felo n-in-possession laws . . . were not keeping
firearms out of the hands of domestic abusers, because ‘many people who engage in serious
spousal or child abuse ultimately are not charged with or convicted of felonies.’” United
States
v
.Hayes, 555 U.S. 415, 426 (2009) (quoting 142 CONG. REC. 22985 (1996) (statement of Sen.
Frank R. Lautenberg)); see also Siegel, supra note 54, at 2121-29 (describing the evolution of
legal attitudes regarding the “right of chastisement”).
101.See infra Part II.

the yale law journal133:992023
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18
Bruen’s ownplain text,
102
as well as to any feasibleanalogicalapproach. Instead,
the question should be asked at a different level of generality—forexample, by
reference to the historical disarmament of “dangerous”people.
103
We would not
be surprised, however, if some courts simply exclude domestic-violencemisde-
meanants atBruen’s step one, which some courts have already done for felons
and unlawful immigrants—treatingthemas outside“the people” covered by the
plaintext.
104
If that hydraulic plays out, the resultwill be a major shift in the style of Sec-
ond Amendmentholdings. Whereas afterHeller, many courtsassumed coverage
at the first part of the two-part framework and then evaluated a challengedlaw
by applying tiered scrutiny at step two,
105
courtsafterBruenwill have a parallel
incentive to resolve cases at the thresholdwith a “plain-text” holding in order to
avoidthe complications of the historical-analogical inquiry.
106
As the Eighth
102. N.Y. StateRifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022).
103. See infranotes 280-289 and accompanying text (discussing dangerousness and otherprinci-
ples of relevant similarity that can be gleaned from historical gun restrictions).
104. See,e.g., United States v. Collette, No. 22-CR-00141, 2022 WL 4476790,at *6 (W.D. Tex.
Sept.25, 2022) (“So if the definition of ‘the people’ is consistent throughout the Constitu-
tion—and it has been historically constitutional to exclude those convicted of a crime from
‘the people’ under Section 2, Article I—itwouldalso be constitutional then to excludethose
groupsfrom the Second Amendment’s kindred ‘political right.’”); United States v. Ingram,
No. 18-557, 2022 WL 3691350, at *3 (D.S.C. Aug. 25, 2022) (“By distinguishing non-law-abid-
ing citizens from law-abidingones, the dictainHellerandMcDonaldclarifies the boundsof
the plaintext of the Second Amendment. This,coupled with the majority’s focus inBruenon
the Second Amendmentrights of ‘law-abidingcitizens’ throughout the opinion, convinces
this Court that the Supreme Court wouldconclude that [felon-in-possession and comparable
statutes]fail to infringeon any SecondAmendment rights.”); United States v. Sitladeen, 64
F.4th 978,987 (8th Cir. 2023) (“[U]nlawful aliens are not part of ‘the people’ to whom the
protections of the Second Amendment extend.”);see alsoJacob D. Charles,DefeasibleSecond
Amendment Rights:ConceptualizingGunLawsThat Dispossess Prohibited Persons, 83 L
AW&CON-
TEMP
.PROBS. 53 (2020) (summarizing debate aboutwhether certain groups subject to dis-
armament fall outside the Second Amendmententirely or instead have defeasible gun rights).
105. See,e.g.,Kanter v. Barr, 919 F.3d 437, 447 n.9 (7th Cir. 2019) (endorsing the “prudential ap-
proach” of “defer[ring] the threshold historical scope inquiry [at step one] and proceed[ing]
directly to means-end scrutiny [at step two]”).
106. See,e.g.,Or. Firearms Fed’n, Inc. v. Brown,No. 22-CV-01815, 2022 WL 17454829, at *10 (D.
Or. Dec.6, 2022) (concluding that plaintiffs had “not shown that magazinescapable of ac-
cepting more thanten roundsof ammunition are firearms ‘in common use today for self-
defense’ and thereby covered by the plain text of the Second Amendment” (quotingBruen,
142 S. Ct. at 2134)); United States v. Sanchez, No. W-21-CR-00213, 2022 WL 17815116, at *2
(W.D. Tex. Dec. 19, 2022) (concluding with minimal analysis that “the language of Section
922(g)(3)(2018) [banningfirearm possession by thosewho unlawfully use or are addicted to
a controlled substance]is not covered by the plain text of the Second Amendment”); Def.
Distributed v. Bonta, No. CV-22-6200, 2022 WL 15524977, at *4 (C.D. Cal. Oct. 21, 2022)

originalism-by-analogyand second amendment adjudication
1
19
Circuit put it in a recent opinion upholding the federal ban on gun possession
by unlawfully presentimmigrants,“whatever the answer to [the] difficult his-
toricaldebate” regarding Founding Era analogues, the court“need not resolve
it” because circuit precedent “already answersBruen’s threshold textual inquiry
in the negative.”
107
Casesinvolving prohibitions on assault weapons and high-capacity maga-
zines will be interesting in this regard. Prior toBruen, such prohibitions had been
universally upheld in the federal courts of appeal.In all but one case, courts as-
sumed coverage and applied scrutiny.
108
A central question going forward is
whethercourts will continueto assumecoverage undera plain-text threshold
now thatdoing so invites a difficulthistorical analysis akin to what courts
avoided beforeBruen.
2.A StringentTe st for Historically Persistent “General SocietalProblems”
If the plain-text thresholdis met,Bruenprescribesthat modernlaws be eval-
uated basedon whether they are consistent with historical predecessors. But the
stringency of that analogical test itselfdepends on whether the problem that the
law addresses is one that was knownto earliergenerations.
109
If the societal
problemhaspersisted historically: (1) “the lack of a distinctly similar historical
regulation addressing that problem is relevantevidence that the challengedreg-
ulation is inconsistentwith the Second Amendment,”
110
(2) “if earliergenera-
tionsaddressed the societal problem, but did so throughmaterially different
means,thatalso could be evidence thata modern regulation is
(upholdinga restriction on manufacturing “ghost guns” because the plain text of the Second
Amendment“plainly does not” cover the statute at issue);see alsoDenning & Reynolds,supra
note51 (manuscript at 24-27) (discussing the potential for “desultory or bad faith application
ofBruen”).
107.Sitladeen, 64 F.4th, at 986 n.3;see alsoPratheepanGulasekaram,The SecondAmendment’s “Peo-
ple” Problem, 76 V
AND.L.REV(forthcoming 2023) (manuscript at 23), ssrn.com/ab-
stract=4366188 [https://perma.cc/E7WW-5GNA] (discussing the Eighth Circuit’s holding in
Sitladeen).
108. See,e.g., Worman v. Healey, 922 F.3d 26 (1st Cir. 2019); N.Y. State Rifle & Pistol Ass’n v.
Cuomo, 804 F.3d 242 (2d Cir. 2015); Friedman v. City of Highland Park, 784 F.3d 406 (7th
Cir. 2015); Heller v. Dist. of Columbia, 670 F.3d 1244 (D.C. Cir. 2011). The one exception in
the federal appellate courts, which found such weapons to be “dangerous and unusual” and
thus outsidethe scopeof the Second Amendment entirely, wasKolbev. Hogan, 849 F.3d 114,
137, 142 (4th Cir. 2017).
109. Bruendoes not clearly settle the issue of which historical era provides the relevant compara-
tors.142 S. Ct. at 2162-63 (Barrett, J., concurring) (noting that the majority opinion does not
resolve whether history after the Founding Era, including during Reconstruction, is relevant
to the historical-analogical test the majority endorses).
110. Id.at 2131 (majorityopinion).

the yale law journal133:992023
120
unconstitutional,”
111
and (3)“if some jurisdictions actually attemptedto enact
analogous regulations during this timeframe, but those proposalswere re jected
on constitutional grounds, that rejection surelywould provide some probative
evidence of unconstitutionality.”
112
These considerations drop away inthe con-
text of “unprecedented societal concernsor dramatictechnological changes,” in
which case the “more nuanced approach”described in the following Sectionap-
plies.
113
A few features of the stringent test for“general societal problems” ar e worth
emphasizing. First, it places too much weight on historical silence (“the lackof
a distinctly similar historicalregulation”), effectivelytreatingsilence asevidence
for expansive gun rights.
114
But theabsence ofevidence of regulation might have
had nothing to do witha beliefthat doing so wouldhave been unconstitu-
tional.
115
Maybe theFounding generation did not think of a particular solution.
Maybe the regulatory means did notexist.
116
Maybe policymakers prioritized
other pressing issues like setting up anew government and addressing external
and internal threats to itsexistence.
117
Or maybe historians and lawyers haveyet
to uncover the relevantevidence.
111.Id.
112.Id. But see infra not e 394 and accompanying text (observing how stat es have different consti-
tutional and gun-rights traditions).
113.Bruen, 142 S. Ct. at 213 2; see infra Section I.A.3.
114.See Charles, supra note 21.
115.Cf. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2250 (2022) (“ Although a pre-
quickening abortion was not itself considered homicide, it does not follow that abortion was
permissible at common law—much less that abortion was a legal right.”).
116.Fo
r example, as of this writing, the township of Howell, Michigan, is defending the constitu-
tionality of a local zoning ordinance restricting the location of shooting ranges. Oakland Ta c-
tical Supply, LLC v. Howell Twp., No. 21-1244 , 2022 WL 3137711, at *2 (6t h Cir. Aug. 5, 2022).
A district court rejected the challenge on the grounds that the plaintiffs’ “pr oposed course of
c
onduct, c onstruction and use of an o utdoor, open-air 1,000-yard shooting range, is not cov-
ered by the pla in text of the Second Amendment.” Oakland Tactical Supply, LLC v. Howell
Twp., No. 18-CV-13443, 2023 WL 2074298, *4 (E.D. Mich. Feb. 17, 2023). If that rationale is

originalism-by-analogy andsecondamendmentadjudication
121
Second, which lens—modern orhistorical—should be usedto determine
whether a phenomenonevenwasa “societal problem?”The Framers didnot
seemto regard armed domestic violence as a problem worthyof significant legal
intervention
118
—a fact some judges have cited in thecourse of striking down
modern laws prohibiting gun possession by those subject to a domestic-vio-
lence-related restraining order.
119
But the Framers’ relativesilence on this prob-
lem reflects a blinkered moral sensibility with regard to domestic violence, nota
determination about thescope ofthe right to keepand bear arms.
120
To regard
it as a binding SecondAmendment tradition isto makea contemporary norma-
tive determination about which historical practices are worthy of constitutional
respect and which are not.
121
Third, and perhaps most consequentially, this part ofBruen’s framework in-
vites broad judicial discretion indecidi ng whethera historical problem has per-
sisted and characterizingthe means adopted for addressing it.In other words,
whatisa “general societal problem?”
122
What does it mean for a historical
not to enact them, starting with the obvious possibility that no one thought of it. Congress
has never required that the Capitol building be painted with big red polka dots. This is not
evidence that it thought such a decorati ve choice would be unconstitu tional.” Andrew Kop-
pelman, The Use and Abuse of Tradition: A Comment on DeGirolami’s Traditionalism Rising, J.
CONTEMP. LEGAL ISSUES (forthcoming 2023) (manuscript at 6), ssrn.com/abstract=
4383680 [ht tps://perma.cc/F4PN-JZVB]; see also Sherif Girgis, Living Traditionalism 98
N.Y.U.
L. REV. (forthcoming 2023) (manuscript at 35), ssrn.com/abstract=4366019
[https://perma.cc/7SXG-PY85], (“[W]hile states have never banned ice cream, that doesn’t
make ice cream consumption a constitutional right.”).
118. SeeSiegel,supranote 54. To be sure, there wassomeprotection for abusedwomen, even if it
was woefully inadequate.See, e.g., ELIZABETHPLECK, DOMESTICTYRANNY: THEMAKING OF
AMERICANSOCIALPOLICYAGAINSTFAMILYVIOLENCEFROMCOLONIALTIMESTO THEPRESENT
(1987); Carolyn B. Ramsey,Firearms in theFamily, 78 OHIOST. L.J. 1257, 1301 (2017); Carolyn
B. Ramsey,DomesticViolence andStateIntervention in the American West andAustralia, 1860-
1930, 86 I
ND. L.J. 185, 207 (2011).
119
. See, e.g., United States v. Rahimi, 61 F.4th 443 ( 5th Cir. 2023) (holding thata federal st atute
prohibiting gun possess ion by peoplewho had a restraining order violates the Second Amend-
ment); United States v. Perez-Gallan,No. 22 -CR-00427, 2022WL 16858516(W.D. Tex. Nov.
10, 2022) (same).
120
. Moreover,even if theFoundinggenera tion had appreciated the problem of domestic vi olence,
there still might not have been a need toregulate guns in thedomestic-violence context be-
cause resear ch suggests that theywere rarely used for domestic violence—probably areflec-
tion of the state of fir earm technologyat the time.See infratext accompanying note314.
121. On this process of constitutional memory making, see generally Jack M. Balkin,Constitutional
Memories
, 31 WM. & MARYBILLRTS. J. 307 (2022); and Reva B. Siegel,ThePolitics of Constitu-
tionalMemory, 20 GEO. J.L. & PUB. POL’Y19 (2022).
122.N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 , 2131 (2022).

the yale law journal133:992023
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22
regulation to be “distinctly similar?”
123
What are “materially different means?”
124
If one defines the “general societalproblem” as “gun violence”—a broad level of
generality—thenit will be harder to justify modern regulations that are not “dis-
tinctly similar” to predecessors. But one might also define the modern “general
societalproblem” at a lower level of generality (e.g., “mass shootings,” “school
shootings”) and thereby avoid the need for a “distinctly similar” historical fore-
bear to proveconstitutionality.
125
Bruendemonstrates how manipulable the persistent-societal-problem prin-
ciple can be, as well as how little meaningful guidance it provides to lower courts.
Withoutciting any historical sources, the majority equates the modern“societal
concern” of handgunviolence withthat of the Founding Era. Addressing how
this principle played out inHeller, theBruenCourt writes:
Oneof the District’s regulations challenged inHeller‘totallyban[ned]
handgun possession in the home.’ The District inHelleraddressed a per-
ceived societal problem—firearm violence in densely populated commu-
nities—and it employed a regulation—a flat ban on the possession of
handgunsin the home—that the Founders themselves could have
adoptedto confrontthat problem.
126
The implication under the persistent-societal-problem principlewould be
that the historical omission was strongevidence of the modern law’s unconsti-
tutionality. TheBruenCourtcharacterizedthe case before it in similar terms:
“New York’s proper-causerequirement concernsthe same alleged societal prob-
lem addressed inHeller: ‘handgunviolence,’ primarily in ‘urban area[s].’”
127
Both cases,according to the majority, calledfor “straightforward historical in-
quiry.”
128
But the Court’s conclusion that historical and modern urban-handgun vio-
lenceare “the samealleged societal problem”
129
is anything but straightforward.
Certainly, gun violence existed in the FoundingEra. But why would “the Found-
ers themselves” have adopted “a flat ban on the possession of handguns” without
evidence of widespread handgun use in crime, especially when less than ten
123. Id.
124. Id.
125. Seeinfranotes328-330 and accompanying text (discussing the recencyof mass shootings and
schoolshootings).
126. Bruen, 142 S. Ct. at 2131 (internalcitations omitted).
127. Id.
128. Id.
129. Id.

originalism-by-analogyand second amendment adjudication
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23
percent of the firearmstock consisted of handguns?
130
There were,in some
sense,urbanareas and densely populated communities, but nothing even re-
motely comparable to today. New York City alone now containsmore than twice
the entirecountry’s 1790 population.
131
The persistent-societal-problem principle has yet to meaningfully influence
Second Amendment jurisprudence, which likely is due to the challengesof de-
fining what counts as suchproblems and determining how to calibratethe his-
torical-analogical inquiry for regulations addressing them. Rather, courts have
focused most of their attention on two nonexhaustive metricsBruenoffered for
comparingpast and presentlaws, to which we nowturn.
3.Bruen’s Primary Historical-Analogical“Metrics”: “How” and“Why”
Theplain-text thresholdand persistent-societal-problem principle dictate
the applicability and stringencyof the historical-analogical test at the centerof
Bruen. But whatform doesthat historical-analogical analysis take?
TheBruenmajority recognized that “because ‘[e]verything is similar in infi-
nite ways to everything else,’ one needs ‘some metric enabling the analogizer to
assess which similarities are important and which are not.’”
132
Themajority
pointedto “at leasttwo” suchmetrics:
While we do not nowprovidean exhaustive survey of the features that
renderregulations relevantly similar under the Second Amendment, we
do thinkthatHellerandMcDonaldpoint toward at least two metrics:how
andwhythe regulations burden a law-abiding citizen’s rightto armed
self-defense.
133
CitingHellerandMcDonald v. City of Chicagofor the proposition that individual
self-defenseis the central componentof the right to keepand beararms, the
Court further elaborated that “whether modern and historical regulations im-
pose a comparable burden on the right of armedself-defense and whether that
130. SeeRuben,supranote94, at 204-07 (discussing firearms,crime, and self-defense at the
Founding).
131. See infranotes 321-325 and accompanying text (discussing lack of urbanization at the Found-
ing).
132. Bruen, 142 S. Ct. at 2132 (quoting Cass Sunstein,OnAnalogical Reasoning,106 HARV.L.REV.
741, 773 (1993); Schauer& Spellman,supranote 47, at 254);see alsoA
LEXANDER&SHERWIN,
supranote 47, at
76-83 (“Similarities are infinite; therefore, some rule or principle is necessary
to identify importantsimilarities.”).
133. Bruen, 142 S. Ct. at 2132-33 (emphasis added).

the yale law journal133:992023
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24
burdenis comparably justifiedare central considerations when engaging in an
analogical inquiry.”
134
Restated, this test appears to require that two categories of things—“modern
and historical regulations”—be comparedacross two metrics:the burdens they
imposeon “armed self-defense” and their justifications.Justhow“comparable”
the modern and historical gun laws must be remains unclear, except that “ana-
logicalreasoningrequires only that the government identifya well-established
and representative historicalanalogue, not a historicaltwin.”
135
As JusticeBreyer’s dissent pointed out, “how” and “why” are effectively syn-
onymsfor “means” and “end,”
136
which might be evaluated more straightfor-
wardly undera tiers-of-scrutiny-type analysis. And yet the majority maintained
that there is a difference between its analogical method and means-end scrutiny:
This does not mean that courts may engage in independentmeans-end
scrutiny underthe guise of an analogical inquiry. Again, the Second
Amendment is the “productof an interestbalancingby thepeople,” not the
evolvingproduct of federaljudges. Analogical reasoning requires judges
to apply faithfully the balancestruck by the founding generation to mod-
ern circumstances, and contrary to the dissent’s assertion, there is noth-
ing “[i]roni[c]”aboutthat undertaking. It is not an invitation to revise
that balance through means-end scrutiny.
137
But to say that the Second Amendmentwas the “productof an interest balancing
by the people,” asHellerdid,
138
is a relatively empty conceptwhen it comes to
resolving the concrete constitutional conflicts that “the people” did not consider
in 1791.
139
Courtshave generally treated the “how” and “why” metrics asBruen’s central
methodologicalholding.
140
Broadlyspeaking, these metrics are the closest the
Court comes to giving concrete guidance about how to apply its historical-
134. Id.at 2133 (internal quotation marks and emphasis omitted) (quoting McDonaldv. City of
Chicago, 561 U.S. 742, 767 (2010)).
135. Id.;see also id.(“So even if a modern-day regulation is not a dead ringer for historical precur-
sors,it still may be analogous enough to pass constitutional muster.”).
136. Id.at 2179 (Breyer, J., dissenting).
137. Id.at 2133 n.7 (citations omitted).
138. Id.at 2131 (quotingHeller, 554 U.S. at 635 (emphasis omitted)).
139. See infraSection II.B (discussing differences between historical and modern weapons and vi-
olence).
140. See,e.g., United States v. Rahimi, 61 F.4th 443, 454 (5th Cir. 2023); United States v. Perez-
Garcia, No. 22-CR-01581-GPC, 2022 WL 4351967, at *3 (S.D. Cal. Sept. 18, 2022),rev. denied,
No. 22-CR-1581-GPC, 2022 WL 17477918 (S.D. Cal. Dec.6, 2022); United States v. Martin,
No. 21-CR-00068, 2023 WL 1767161, at *2 (D. Vt. Feb. 3, 2023).

originalism-by-analogyand second amendment adjudication
1
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analogicaltest, and they will probably continue to be the central factors in cases
that pass the “plain-text” threshold.
Even so,Bruensignaledthat courts can consider other factorsbeyond “how”
and “why,” observing that it did not purport to “provide an exhaustive survey of
the features that render regulations relevantly similar under the Second Amend-
ment.”
141
In Part II, we show that courtsmustconsiderother factorsfor the doc-
trine to be coherent.
4.TheContinuingRelevanceofHeller’s “Presumptively Lawful”
Regulations
Just as it had done inHeller, the CourtinBruenrepeatedly emphasized that
its holdingwas consistentwith various forms of gun regulation.Hellergrounded
this principlein history:
[T]hemajority of the 19th-century courts to consider the question held
that prohibitions on carrying concealed weaponswere lawful under the
Second Amendmentor state analogues. Although we do not undertake
an exhaustive historical analysis today of the full scopeof the Second
Amendment,nothingin our opinionshould be taken to cast doubt on
longstandingprohibitions on the possession of firearms by felons and
the mentally ill, or lawsforbiddingthe carrying of firearms in sensitive
places suchas schools and government buildings, or laws imposing con-
ditionsand qualificationson the commercial sale of arms.
142
The Court reproducedthis passage inMcDonald v. City of Chicago,
143
and it was
central to post-HellerSecondAmendment litigation throughout the lower
courts.
144
141. Bruen, 142 S. Ct. at 2132. The Court also said thatHellerandMcDonaldpoint to “at leasttwo
metrics”—thosebeingthe “how” and “why”—suggestingthat other metrics are permitted.Id.
at 2133 (emphasisadded).
142. Heller, 554 U.S. at 626-27 (internal citationsomitted).In a footnote,Hellerreferred to these
as “examples” of “presumptively lawfulregulatory measures,” further noting that the “list does
not purportto be exhaustive.”Id.at 627 n.26. The opinionthenalso blessed restrictions on
“dangerousand unusual weapons” such as “M-16 rifles and the like.”Id.at 627.
143. SeeMcDonald v. City of Chicago, 561 U.S. 742, 786 (2010).
144. SeeRuben & Blocher,supranote 20, at 1488 (noting,based on a review of more than 1,000
SecondAmendment challenges between 2008 and 2016, that “a majority of the challenges in
our study (sixty percent) explicitly cited those paragraphs, though the ratio trended down-
ward overtime,perhapsreflecting the fact thatHelleritself has now beenbaked into circuit
precedent”).

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26
TheBruenmajority—while purporting to applyHeller—notably did not fully
reproducethis passage, but it did discuss withapproval someof the restrictions
thatHellerhad blessed.
145
Moreover, concurringopinions signedby three of the
Justiceswhoalso joinedthe six-Justice majority emphasized thatHeller’s en-
dorsementof various forms of regulationremains good law. Justice Alito wrote,
“[n]orhave we disturbed anything that we said inHellerorMcDonald v. Chicago
aboutrestrictions that may be imposed on the possession or carrying of guns.”
146
JusticeKavanaugh, in a concurringopinion joined by Chief Justice Roberts, un-
derscored that “asHellerandMcDonaldestablishedand the Court today again
explains,the SecondAmendmentis neither a regulatory straightjacket nor a reg-
ulatory blankcheck.Properly interpreted, the Second Amendment allows a va-
rietyof gun regulations.”
147
Kavanaugh then went on to reproduce the “pre-
sumptively lawful” paragraphs fromHellerandMcDonald.
148
Kavanaughalso
highlighted, as the majorityopinionhad, that the decisiondoes not call into
question“shall-issue” permitting, without acknowledging the lack of any obvi-
ous FoundingEra analoguefor suchpolicies.
149
145. Bruen, 142 S. Ct. at 2133-34 (discussing gun restrictions in “sensitive places”).
146. Id.at 2157 (Alito, J., concurring)(internalcitations omitted).
147. Id.at 2162 (Kavanaugh, J., concurring) (internal citations and quotation marks omitted).
148.Id.(quotingDist. of Columbia v. Heller, 554 U.S. 570, 626-27, 627 n.26 (2008);McDonald,
561 U.S. at 786). To be precise, Kavanaugh’s concurrence quotednearlyall of those para-
graphs—omitting the part about the presumptive constitutionality of “prohibitions on carry-
ing concealed weapons.”Heller, 554 U.S. at 626. That language had beenrelied on by federal
courts of appeal afterHeller.See,e.g., Peruta v. County of San Diego, 824 F.3d 919,928 (9th
Cir. 2016) (“Of particular interest here, [Heller] notedthat the Second Amendment has not
beengenerally understood to protect the right to carry concealed firearms.”); Peterson v. Mar-
tinez,707 F.3d 1197, 1201 (10th Cir. 2013) (quotingHeller’s language about concealed-carry
restrictions and concluding“that the carryingof concealed firearms is not protected by the
Second Amendment”). Perhaps the concurringJustices decided that it would be too confus-
ing and complicated—in a case involving an asserted right to carry concealed handguns in
public—to citelanguage sayingthat concealed carry can be outrightprohibited. To
acknowledgeas muchwould not necessarily have beento decidethe case in New York’s favor,
since the statealsoprohibitsopencarry of handguns, but the interplay between those two
formsof publiccarry has beena complicating factor in many licensing cases.SeePeruta, 824
F.3d at 941-42 (summarizing the debate between the majority and dissenting judges regarding
the relevance of open-carry restrictionswhen deciding on the constitutionality of concealed-
carry restrictions);Transcriptof Oral Argument at 42,Bruen, 142 S. Ct. 2111 (No. 20-843)
(Kagan, J.) (“If we tried to copy history, we would find ourselves in a world in which the only
thing that a statecould do is tell people . . . you can’t carry it concealed, you have to carry it
open.”). Whether to frame the debate aroundpublic carry generally or concealed carry specif-
ically demonstrates a way in which the level of generality can be outcomedeterminative under
Bruen’s historicaltest—a point we discuss in greaterdetail below.SeeinfraPart II.
149. Bruen, 142 S. Ct. at 2162 (Alito, J., concurring) (stating that “shall-issue licensing regimes are
constitutionally permissible”);id.at 2138(majority opinion);see alsoAdamM. Samaha,Is

originalism-by-analogyand second amendment adjudication
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27
These reassurancessignalthat the Supreme Court may be willing to uphold
gun regulations outside the strict parameters of the Court’s historical-analogical
test—includingthoserecognized as “presumptively lawful” inHeller. What this
meansfor the viability ofpre-Bruencases that relied on this passage inHeller
remains somewhat unclear. We expect (and have already seen evidence
150
) that
courtswill continueto invokeHeller’s exceptionsas carve-outs from Second
Amendment coverage, suggesting that some continuity will be maintained be-
tween pre- and post-Bruencase outcomes, despite the opinion’s radical refram-
ing of Second Amendment methodology.
For presentpurposes,the more relevantpointis that someofHeller’s excep-
tionsare not particularly easy to square withBruen’s historical-analogical ap-
proach. For example, “[a]lthoughthe Supreme Court [inHeller] observed that
banson gun possession by the mentally ill are longstanding, legal limits on the
possession of firearms by the mentally ill . . . are of 20th Century vintage.”
151
Similarly, “[t]heFoundinggeneration had no laws . . . denying the right to peo-
ple convicted of crimes,”
152
nor did they generally treat domestic violenceas a
crime,
153
although today eitherof thosecan be a basisfor prohibiting gun pos-
session.
154
Our goal thusfar has beento give as clear a statementas possible ofBruen’s
methodologicalholding. That articulation is necessarily tentative because the
opinion itselfcontainsmuchambiguity, and the majority neither states nor ap-
pliesa consistenttest. But one point is relatively clear: even as it pointsto the
past,Bruenrepresentssomethingnew—notjust for the SecondAmendment, as
we have shownabove,but also for historical approaches to constitutional law
morebroadly.
BruenConstitutional? Onthe Methodology thatSavedMost GunLicensing, 98 N.Y.U.L.REV.
(forthcoming 2023),https://ssrn.com/abstract=4241007[https://perma.cc/N67U-6HLB]
(analyzing inconsistencies betweenBruen’s stated methodology and the preservation of shall-
issue licensingregimes).
150. See,e.g., United States v. Hoover, No. 3:21-CR-22(S3)-MMH-MCR, 2022 WL 10524008, at
*13 (M.D. Fla. Oct. 18, 2022) (“[T]he Supreme Court’s holdinginBruendid not overturn
D.C.v. Heller, in which the Courtrecognized the importance of ‘the historical traditionof
prohibitingthe carryingof “dangerous and unusual weapons.”’” (quotingHeller, 554 U.S. at
627));United Statesv. Daniels, No. 03-CR-00083, 2022 WL 5027574, at *4 (W.D.N.C. Oct.
4, 2022) (“Nothing in theBruendecision . . . casts doubt on ‘the longstanding prohibitions on
the possession of firearms by felons.’” (citingHeller, 554 U.S. at 626-27)).
151. Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 687 (6th Cir. 2016) (internal citations
and quotation marks omitted).
152. AdamWinkler, Heller’s Catch-22, 56 UCLAL.REV. 1551, 1563 (2009).
153. See supranote 54 and accompanying text.
154. See,e.g.,18 U.S.C. § 922(g)(9)(2018).

the yale law journal133:992023
128
B.A Pivot in Constitutional Historicism
Bruenwas decidedat the end of aTerm inwhich the Court’s conservative
supermajority leaned heavily on historical—often originalist—methods.
155
As
the previous Section showed,Bruenitself is anextraordinarilyhist oricistopin-
ion. But whatkindof historical approach it representsis a harder question.
156
Some scholars have called it “originalistic,”
157
“purportedly originalist,”
158
or
“originalish.”
159
On the one hand, the opinion pursues many standard originalistinquiries.
For example, itrefers tothe “public understanding” of the Second Amendment
at the time of its adoption
160
and says thatits meaning is“fixed” by “the under-
standings of those who ratified it,”
161
which is consistent with the“fixation the-
sis” popular among modern originalists.
162
JusticeBarrett’s concurrence also
treats the majority opinionas originalistby notingthat it doesnot resolve the
question of whether1791 or 1868is the rele vantdate for historicalanalysis
163
—
an important issue for originalists.
164
Understandably, then, both supporters
165
155.See David Cole, The Supreme Court Embra ces Originalism—and All Its Flaws, WASH. POST (June
30, 2022, 7:00 AM EDT), www.washingtonpost.com/opinions/2022/06/30/supreme
-c ourt-originalism-con stitution [htt ps://perma.cc/5HW7-DTYX].
156.See, e.g ., Chad Flanders, Flag Bruen-ing: Tex as v. Joh nson in Light of The Supreme Court’s
2021-22 Term, 2022 U. ILL. L. REV. ONLINE 94, 102-04 (discussing Justice Thomas’s intricate
treat-ment of historical method in Bruen).
157.Clay Calvert & Mary-Rose Papandrea, The End of Balancing? Text, History & Tradition in First
Amendment Speech Cases After Bruen, 18 DUKE J. CONST. L. & PUB. POL’Y 59, 59 (2023).
158.Randy Barnett, A Minor Impact on Gun Laws but a Potentially Momentous Shift in Constitutional
Met hod, SCOTUSBLOG (June 27, 2022, 5:00 PM), www.scotusblog.com/2022/06/a-minor-
impact-on-gun-laws-but-a-potentiall y-momentous-shift-in-constitutional-method
[
ht tps://perma.cc/S2PD-HSV8].
159.See A.W. Geisel, Bruen Is Originalish (Jan . 23, 2023) (unpublished manuscript), https://
ssrn.com/abstract=4335950 [h ttps: //perma.cc/SFV8-2WJ3].
160.N.Y. Sta te Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2136-38 (2022).
161.Id. at 2132.
162.See supra note 38.
163.Id. at 2163 (Barrett, J., concurring).
164.See Akhi l R. Amar, Heller, HLR, and Holistic Legal Reasoning, 122 HARV. L. REV. 145, 173–74
(2008) (criticizing Hell er for using mid-nineteenth-century sources to show the meaning of
the Second Amend ment in 1791).
165.John O. McGinnis, Bruen’s Originalism, LAW & LIBERTY (July 21, 2022), https://
lawliberty.org /bruens-originalism [https:/ /p erma.cc/ 9A92-MYXB] (arguing that in
Bruen “originalism was very much on the surface, not only governing the Second
Amendment, but perhaps changing the approach to the adjudication of constitutional rights
more generally”); Lawrence B. Solum & Randy E. Barnett , Originalism after Dobbs, Bruen,
and Kennedy: The

originalism-by-analogy andsecondamendmentadjudication
129
and critics
166
ofBruen’s methodologyhave treatedthe op inionas originalist.
On the other hand, when it came to evaluating the constitutionalityof mod-
ern gun laws likeNew York’s, the Courtseemed to take a different approach—
one focusedon “historical tradition” ratherthanthe fixation of meaning at the
moment ofratification.
167
In this respect, the Courtadopted thetest of“text,
history, and tradition” championed by then-Judge Kavanaugh as an alternative
to the prevailingtwo-part framework.
168
Scholars haveexploredwhether and
how that test maps ontoexisting doctrinal approachesin otherareas of consti-
tutional law, notingthe ways inwhich itdifferedfrom standard forms of
originalism.
169
Those same questions nowapply toBruenand raisequestio ns
Role of History and Tr adition, 118 NW. U. L. REV. (forthcoming2023) (manuscript at 41),
ssrn.com/abstract=4338811 [https:/ /per ma.cc/EJT3-42PA] (argui ng that histor y and
tradition is “business as usual” for theSupreme Courtand that cases likeBruenandDobbs
“contain scantevidence of theemergenceof a newapproach to constitutional interpretation
that would supplant either PublicMeaning Originalismor Constitutional Pluralism”).
166.See, e.g., Saul Cornell, Originalism’s Historical Problems: The Supreme Court’s Embrace of a Con-
troversial Theory, ORIGINS (Nov. 2022) origins.osu.edu/read/originalisms-historical-
problems-supreme-courts-embrace-controversial-theory [https://perma.cc/NL7A-LUNA];
Ruth Marc us, Ye Olde Supreme Court? Your Originalism is Making America Unsafe., WASH. POST
(Feb. 4, 2023, 9:33 AM EST), www.washingtonpost.com/opinions/2023/02/05/guns
-br uen-supre me-court-second-amendment [https://perma.c c/B 8ZX -9Q6W]; Press Re-
lease, Am. Const. Soc’y, ACS Statement in Response to Supreme Court Decision in New York
State Rifle & Pistol Ass’n, Inc. v. Bruen (June 23, 2022), www.acslaw.org/press_re-
lease/acs-stat ement-in-response-to-supreme-court-decision-in-new-york-state-rifle-pistol-
association-v-bruen [https://perma.cc/HE4 6-WUF6].
167.Michael L. Smith, Abandoning Original Meaning, 86 ALBANY L. REV. 4 3, 76 (2023) (“While
the Court paid lip servic e t o the Constitution’s meaning, its opinions focused fa r more on
historic practices and traditions without drawing an explicit link between such history and
te
xtual meaning.”); Noah Feldman, Supreme Cou rt ‘Originalists’ Are Flying a False Flag, WASH.
POST (July 17, 2022), www.washingtonpost.com/business/supreme-court-
o
rig inalists-are-flying-a-false-
flag/2022/07/17/2c02fdcc-05d1-11ed-80b
6-43f2bfcc6662_story.html [https://perma.cc/
C75N-VZEX] (concluding that Bruen “is the most originalist decision of the recent major
case s” but that it ultimately “was an exercise in historicist anal ogy, not genuine original-
i
sm”).
168.Heller v. Dist. of Columbia, 670 F.3d 1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J., dissenting)
(“In my view , Heller and McDonald leave little doubt that cour ts are to ass ess gun bans and
regulations based on text, history, and tradition, not by a balancing test such as stri ct or in-
termediate scrutiny.”); Bruen, 142 S. Ct. at 2161 (Kavanaugh, J., concurring) (“The Court em-
ploys and elaborates on the text, history, and tradition test that Heller and McDonald require
for evaluating whether a government regulation infringes on the Sec ond Amendment right to
possess and carr y guns for sel f-def ense.” ).
169.See, e.g., Darrell A.H. Mill er, Text, History, and Tradition: What the Seventh Amendment Can
Tea ch Us About the Second, 122 YALE L.J. 852 (2013).

the yale law journal133:992023
130
about whetherthe Justices will further blur the lines between traditionalismand
originalism.
170
Ultimately, the question ofwhetherBruenwas or was not originalist depends
on one’s view of twodeeply contested issues:whatBruen’s methodology actually
is andwhat counts as originalism. Asshownabove,
171
the first issue is incredibly
complicated. The second is, too . Originalism isnot monolithicbut is rath er a
family of theories and practices united bya focus on interpreting the Constitu-
tion by reference to the past.
172
Thus, the fact thatBruenmight not conformto
the dominant scholarly description of original-public-meaningoriginalismdoes
not mean itis not originalist from otherperspectives, includingthosethat see
originalism simply as a way to restrainjudgesby tying them to historicalsources
or view it as a completely political project to blockliberalpolic ies inthe courts.
173
The aspects of“originalism-by-analogy” that we explorehere apply equally
whether one considersthe opinion originalist, traditionalist, or something else
entir ely. For our purposes,what is most strikingaboutBruenis its heavy reliance
on historical analysis not simply to establishthe original meaningand thus scope
of a constitutional right (the central focus of originalpublicmeaning original-
ism), but toevaluate theconstitutionalityof restrictionson that right. Thetwo
do not necessaril y go hand in hand. One might, for example, employ public
meaning originalism to determine thatthe SecondAmendment protects a right
to have a handgun in the home for self-defense and thenevaluate anyrestrictions
on that right—say, a safe-storage law—using heightenedscru tiny or some other
doctrinaltest. Much constitutional lawworks this way.Bruen, however,uses his-
torical analysis not simply to interpret theSecondAmendment’smeaning and
17.Girgis, supra not e 117 (manusc ript at 17); Jack M. Bal kin, More on Text, History, and Tradition—
Discussion Questions for Dobbs, Part One, BALKINIZATION (July 8, 2022, 11:30 AM), https://
balkin.blogspot.com/2022/07/more-on-text-history-and-tradition.html [https://
perma.cc/XK8E-SF7P] (“Dobbs, like Bruen, suggests that the Court’s self-described
originalist judges are not strongly distinguishing ori ginalism from traditionalism.”).
171.See supra Section I.A.
17.Cf. Thomas B. Colby & Peter J. Smith, Living Originalism, 59 DUKE L.J. 239, 244 (2009) (“A
review of originalists’ work reveal s originalism to be not a single, coheren t, un ified theory of
constitutional interpretation, but rather a smorgasbord of distinct constitutional theories that
share lit tl e i n common except a misleading relia nce on a single label.”).
1
7.See J. HARVIE WILKINSON III, COSMIC CONSTITUTIONAL THEORY 40 (2012) (“This constrain-
ing focus of originalism is the basis of its appeal, accounting for ‘the prominence it has
achieved in the last few decades as both a justifica tion for and an objective co nstraining on
the power of judicial review.’” (quoting Michael W. McConnell, Active Liberty: A Progressive
Alter-native to Textualism and Originalism?, 119 HARV. L. REV. 2 387, 2414 (2006));
CHEMERINSKY, supra note 5, at 165 (“The remarkable willingness of originalists to abandon
originalism whe
n it fails to produce conservative results sh ows that the theory was never the
constraint on the judiciary that its boosters promised. It is simply convenient rhetoric, used
by conservatives to make it seem that their decisions are a product o f something other than
their political views.”).

originalism-by-analogyand second amendment adjudication
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thus the scope of its coverage but also to directly evaluate the constitutionality
of particular laws.
174
Thisreliance on history at the second step of the analysis is what separates
Bruenfromthe two-part framework that it rejected
175
and fromhowothercon-
stitutional rights questions are answered beyond the SecondAmendment.
176
The two stepsof the pre-Bruenframework maponto the commonly invoked
difference betweeninterpretationandconstructionwithin originalisttheory. Inter-
pretation is “the process (or activity) that recognizes or discovers the linguistic
meaningor semanticcontent of the legal text,” while construction is “the process
that gives a text legal effect (either . . . translating the linguistic meaning into
legaldoctrine or by applying or implementing the text).”
177
One way to under-
stand the two-part framework is as adopting—or at least accepting—history as
a matter of interpretationbut usingscrutiny tests in the “construction zone.”
178
The methodological question before the Court inBruenthuswasnotwhether
history matters in Second Amendment adjudication. Second Amendment
174. As we have emphasized,Bruenitself was unclear aboutits historical-analogical test, which has
led to uncertaintyamong commentators (including leading originalist scholars) regarding
howto understand the opinion.In their essay, Randy E. Barnett and LawrenceB. Solum read
Bruenas most plausibly using analogies to the historical tradition of firearms regulation as a
meansof interpretation “to identifythe exact contours of the pre-existinglegal right to keep
and bear armsin either1791 or 1868.” Barnett & Solum,supranote165 (manuscript at 56). In
that reading,“Bruenis a thoroughly originalist opinion.”Id.(manuscript at 36). In an earlier
draft, Barnett and Solum readBruen’s test differently, as “an implementingdoctrine that is
not justifiedby originalist reasoning.” Randy E. Barnett & Lawrence B. Solum,Originalism
AfterDobbs,Bruen, andKennedy: TheRole of History and Tr adition(Jan. 26, 2023) (manu-
script at 23) (on file with authors). They explained that Justice Thomasor others “might well
view this rule of construction as constituting the original meaning of the text itself.”Id.But in
their view at the time, “[e]valuating the constitutionality of firearms regulations by compar-
ing them to regulations that have been traditionally acceptedfrom the foundinguntil today is
not a methodfor identifyingthe originalmeaning of the text.”Id.(manuscript at 22).
We are more persuadedby Barnett and Solum’s earlier readingof the historical-analogical test
as a means of implementing the SecondAmendmentwithin the construction zone.For rea-
sons that they raised,id., and that we elaborate in this Article,consideringonly a subset of
historicalregulations passed by unrepresentative policymaking bodies and ignoring all other
historical evidence strikes us as a plainly deficient approach to original public meaning.
175. See supranotes 67-74 and accompanying text (discussing pre-Bruenframework).
176. See infranotes 189-195 and accompanying text.
177. Solum,supranote 8, at 96.
178. Randy E. Barnett & EvanBernick,TheLetter andtheSpirit: A UnifiedTheory of Originalism,
107 G
EO.L.J. 1, 34, 38-41 (2018)(identifyinguse of the two-part framework inEzell v. Cityof
Chicago, 651 F.3d 684, 708-09 (7th Cir. 2011), as “good-faith construction”).

the yale law journal133:992023
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32
doctrine already employedoriginalism and traditionalism beforeBruen.
179
In-
deed,soon afterHellerand for more thana decade, courts had acknowledged
that “historical meaningenjoysa privileged interpretive role in the Second
Amendment context.”
180
Instead,Brueneliminated the role of standarddoctrinal
tests that complement and implement historical analysis, requiring instead di-
rect comparison between challenged laws and historical ones.
Our point here is to emphasize thatBruendoes not sidestep the crucialrole
of the rulesthatimplementthe meaningof a constitutional provisionin concrete
cases.As noted above, many originalists refer to this as a process of “construc-
tion,” though for our purposes the label is less important than the fact that these
rules—and not just the semantic content of the Constitution—are what courts
use to decide actualcases.
181
Originaliststake different approachesto the status
and contentof theserules.
182
Jack Balkin,for example,arguesthat “a thin theory
with a broad zone for constructionis better ableto avoid anachronism; thick
theories of original meaning tendto encourage anachronism.”
183
Others,in con-
trast, contendthat the construction zone should be narrow.
184
All agree that it
exists. WhatBruendid was replace one rule of construction with another.
179. See,e.g., Mark A. Frassetto,JudgingHistory:How JudicialDiscretioninApplyingOriginalist
Methodology Affects theOutcomeof Post-HellerSecond AmendmentCases, 29 W
M.&MARYBILL
RTS.J. 413 (2020) (emphasizing the relevance of historical analysis and analogy pre-Bruen).
180. United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011).
181. LawrenceLessig calls this a process of “translation.”See generallyLAWRENCELESSIG,FIDELITY
AND
CONSTRAINT:HOWTHESUPREMECOURTHASREAD THEAMERICANCONSTITUTION
(2019).See alsoJack M. Balkin,Tr anslatingtheConstitution, 118 M
ICH.L.REV. 977, 978-79
(2020) (reviewingF
IDELITY ANDCONSTRAINTand arguing that Lessig’s theory is best under-
stoodas an approachto constitutional construction).
182. Someoriginalists have proposedways to fill the construction zone with reasoning that aligns
withoriginal publicmeaning.See, e.g., Barnett & Bernick,supranote178, at 3 (“[O]riginalism
mustbe committed to the Constitution’s original spirit as well—the functions, purposes,
goals, or aims implicitin its individual clauses and structural design. We termthis spirit-
centered implementation ‘good-faith constitutional construction.’”). Others have soughtto
minimizethe role for construction.See, e.g., John O. McGinnis& MichaelB. Rappaport,The
Powerof Interpretation:Minimizing the ConstructionZone, 96 N
OTREDAMEL.REV.919,921
(2021) (“In this Article, we offer the first sustained argument that the construction zoneis a
smallone.”). Whetherthe application of the pre-Bruendoctrinal rules providedsufficientju-
dicial constraint is of course a separate question, and many critics of the two-part framework
alleged that it was applied too flexibly. But even if that were true, the solution need not be
“history all the way down,” especially in light of the tradition of applying a non-historical-
analogical approach to gun-rights questions.See infranote188 and accompanying text (not-
ing the tradition of permitting gun regulation in the interests of public welfare).
183. JACKM.BALKIN,MEMORY ANDAUTHORITY:THEUSESOFHISTORY INCONSTITUTIONALIN-
TERPRETATION
(forthcoming2024) (manuscript at 110).
184. SeeMcGinnis & Rappaport,supranote 182, at 921.

originalism-by-analogyand second amendment adjudication
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33
Thisis not to say thatBruenwas clear about the nature and application of its
new rule of construction, which predictably has created challenges for the lower
courts.
185
Bruen’s failure to give coherent guidance regarding howto implement
its holdingconnectsto the level-of-generality problemwe discuss in Section
II.B. Some courts have defined the scope of Second Amendment rights at a high
level of generality (for example, a rightto carry firearms in public) but the reg-
ulatory tradition at a low level of generality(for example, as bans on carrying
guns only at the precise places restricted in the 1700s and 1800s), essentially con-
vertingSecondAmendment cases into questions of interpretation with minimal
work for construction.But that asymmetrical approach to history is a conse-
quence of judicial choice—not the Second Amendment’s text or the original un-
derstandingof the right to keep and bear arms (let alone of judicial review).
186
No matterhowit is framed,Bruendepartsdramatically from traditional
forms of implementing doctrine. It does not use historical analysis to select a
nonhistoricaldoctrinaltest, asDobbseffectively did in sayingthat rational-basis
review applies to abortion restrictions because the right to abortion is not his-
torically rooted.
187
Nor does it adopt a doctrinal testfromhistory, for exampleby
borrowing from the Founders’ narrowconception of judicialreview and their
corresponding understandingthat gunscould be regulated in the interests of
public welfare.
188
Instead,Bruensays that a novel historical analysisisthe doc-
trinal test. Specifically, it says that modern gun laws must be evaluated by anal-
ogy to historical forebears, unmediated by a recognizable doctrinal test. It places
frontand center a test calling not for determining original meaning as such, but
for comparisons betweenmodern and historical laws in light of their purposes
and on-the-groundoperation.
In this way,Bruenbreaksnot only from standard forms of originalism but
fromotherareasof constitutional-rights adjudication—noneof which employ
historical-analogical inquiry as the sole means of determining constitutional-
ity.
189
The majorityattempted to link the historical-analogical approach to other
185. See infraSectionII.A (suggestingways to identifyprinciples of relevant similarity thatBruen
itself fails to sufficiently specify).
186. That is why we prefer Barnett and Solum’s initialreading ofBruen, which recognized the role
of construction.See supranote 174.
187. Dobbsv. Jackson Women’s Health Org., 142 S. Ct. 2228, 2266, 2284 (2022).
188. SeeJud Campbell, Natural Rights, PositiveRights,and theRightto KeepandBear Arms, 83 LAW
&CONTEMP.PROBS.31, 37 (2020);see also infranotes 429-437 and accompanying text (dis-
cussing the scope of historicalpolice power and judicialreview).
189. The closestdoctrinalcomparator may be the approachtakenfor SeventhAmendment cases.
See generallyMiller,supranote169 (discussing Seventh Amendmentdoctrine in the context
of the turnto historicismin SecondAmendment case law). However, Seventh Amendment

the yale law journal133:992023
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34
areas of constitutionallaw,
190
but as others—including those who support
Bruen’s result—have noted, this attemptto claimdoctrinalconsistency is “ex-
tremely tendentious.”
191
For example,the majority claimedthat its approach
comportswith free-speech doctrine,
192
since“the governmentmustgenerally
point tohistoricalevidence about the reach of the First Amendment’s protec-
tions.”
193
But the Supreme Court’s freedom-of-speech doctrine has longde-
ployed means-end scrutiny afterdetermining the scope of First Amendment
coverage.
194
Indeed, the FirstAmendment precedent cited by the majority itself
inBruenmakes clear this aspect of freedom-of-speechdoctrine.
195
We callBruen’s novel approach “originalism-by-analogy” to differentiate it
from existingcategories like publicmeaning originalism,which focuses on find-
ing the historical-semantic meaning of constitutional text,
196
which might then
be implemented through doctrines like heightenedscrutiny.
197
Withinthe
doctrineis distinctfromBruen’s approach in various ways, including that the “reliance on
analogical reasoning from text, commonlaw history, or tradition” is “not exclusive.”Id.at 856.
Rather, Seventh Amendmentdoctrine applies a historical-analogical inquiry flexibly and,
“[w]here history is not dispositive or an analogy not apparent,”id.at 886, expandsthe inquiry,
includingto policy or “functional” considerations,id.at 886,891, 891 n.237 (quotingCityof
Monterey v. Del Monte Dunes,Ltd., 526 U.S. 687, 718 (1999)).
190. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2130 (2022) (“ThisSecond Amendment
standard accords with how we protect other constitutional rights.”).
191. See,e.g., Denning & Reynolds,supranote51 (manuscript at 15-16) (“Justice Thomas’s claim
that text-history-traditionis the predominant or primary means of protecting constitutional
rights is extremely tendentious.”).
192. Bruen, 142 S. Ct. at 2130.
193. Id.
194. See,e.g., Nat’l Rifle Ass’n of Am. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700
F.3d 185, 194, 198 (5th Cir. 2012)(“First Amendmentdoctrine demonstrates that, even with
respectto a fundamental constitutionalright, we can and should adjustthe level of scrutiny
according to the severity of the challenged regulation.”); Calvert & Papandrea,supranote157,
at 59 (describingBruen’s account of First Amendment doctrine as “largely inaccurate”); Tim-
othy Zick,Bruen’s Hypocrisy:Public Carry and Public Expression (June 20, 2023) (un-
publishedmanuscript)(on file withauthor)(rejecting the Supreme Court’s claim thatBruen’s
approachcomports with First Amendment free-speech doctrine); Genevieve Lakier,TheIn-
vention of Low-Value Speech, 128 H
ARV.L.REV. 2166,2170-71 (2015).
195. See,e.g., United Statesv. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000) (“Since § 505 is a
content-basedspeechrestriction,it can stand only if it satisfies strict scrutiny.”);Bruen, 142 S.
Ct. at 2130(citing toPlayboy, 529 U.S. at 816,when discussing FirstAmendment supportfor
rejectingmeans-end scrutiny).
196. The two approaches are not incompatible;Bruendoesboth. The point is that public meaning
originalism does not necessarily entail originalism-by-analogy—thepre-Bruenframeworkin-
volved the former but not the latter.
197. Barnett & Lund,supranote 83 (advocating sucha test instead of one grounded solely in his-
torical analogy).

originalism-by-analogyand second amendment adjudication
1
35
terminology of originalism,Bruencomescloserto expectedapplications
originalism.
198
As Balkin explains,suchan approach“asks howpeople livingat
the time the text was adopted would have expected it would be applied using
language in its ordinary sense.”
199
Because it pitchesquestions narrowly and spe-
cifically, expectedapplications originalism shares features with originalism-by-
analogy and mightrely on some of the same forms of evidence. In evaluating a
modern safe-storage law, for example, an expected applications originalist might
ask whethersuch a restriction would have beenthought constitutionalin 1791.
The existenceor lack thereof of similar restrictions at that time wouldcertainly
be relevant to that question. ForBruen’s originalism-by-analogy, the central
questionis not a historicalcounterfactual but a historicalcomparison: not
whethera modernlawwouldhavebeenthoughtconstitutional but whether its jus-
tification (“why”) and stringency(“how”)are sufficiently similar to the laws ac-
tually on the books in the Founding Era. Simply put, underBruen, the question
is not whatthe historical meaning of a right is. As Justice Thomas himself has
acknowledged in the context of defamation, “law did not remain static after the
founding,” a fact that “reflected changing policyjudgments, not a sensethat ex-
istinglaw violatedthe original meaning” of the Constitution.
200
The same is true
of FoundingEra gun law.
Thatdoes not mean,however, thatBruen’s originalism-by-analogy is neces-
sarily more rigid thanoriginalexpected applications or other forms of original-
ism withregard to the evidence it considers or the regulations it permits.Bruen’s
analogical approachin fact representsadeparturefrom strict historical reasoning,
because it requiresa comparison of modern and historicallaws based on “why”
and “how” they operated. This inevitably requires consideration of contempo-
rary costs, benefits, and legislative deference
201
because it is impossible to com-
pare things like justifications for a law or the burdens it imposes on armed self-
defensewithout evidence.
AlthoughBruenmight representa revolutionin Second Amendment law and
in originalism more broadly, the lay of the land remains familiar. After all,Heller
did not explicitly adopt any recognizable doctrinaltest when it struckdown
D.C.’s handgun prohibition, but the limited doctrinal guidance that it did
198. Lawrence B. Solum,Tr iangulating PublicMeaning:CorpusLinguistics, Immersion, andtheCon-
stitutionalRecord, 2017 B.Y.U.
L.REV.1621, 1637 (“Original publicmeaning shouldbe distin-
guishedfromwhat have beencalled ‘original expected application[s].’” (quoting Jack M. Bal-
kin,AbortionandOriginalMeaning, 24 C
ONST.COMMENT. 291, 292 (2007))).
199. Balkin,supranote 198, at 296;id.at 295-97 (“[C]onstitutional interpretation is not limited to
thoseapplications specifically intended or expected by the framers and adopters of the consti-
tutionaltext.”).
200. McKee v. Cosby, 139 S. Ct. 675, 682 (2019) (Thomas, J., concurring).
201. See infraSection II.C.2.

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provideindicated the importanceof “longstanding” regulations.
202
Hellerleft
lower courtsto flesh out the doctrine, which they did with the two-part frame-
work that predominated beforeBruen. And as one would expect, concrete ques-
tions—like whetherpeople convicted of felonies can be disarmed—became gov-
erned by circuit precedent withouta needfor renewed historical inquiry in each
case.
203
It seems likely that a similar dynamic will play out afterBruen. Investigating
the historical recordand findingrelevant similarities among historical laws will
generate precedent to govern new cases.Later courts cannotbothrespect such
precedentandconducthistorical-analogical reasoningde novo in every case.
204
As courts apply originalism-by-analogy, they will generate binding precedent
bothat a narrow level (e.g., that the felony prohibitor is constitutional) and at a
broaderlevel (e.g., that “founding-era legislatures categoricallydisarmed groups
whom they judged to be a threat to the publicsafety”).
205
The latter is a gener-
alizable principle derived fromBruen’s analogical mandate. The principle of rel-
evant similarity—dangerousness—becomesa legalrule,and the questionin any
given Second Amendmentchallenge to a group prohibitor is then whether the
groupis dangerous. In this way, the historical-analogical approach—like more
standardforms of originalism—eventually creates applicabledoctrinal rules and
precedent, crowding out the need for direct historical analysis in future cases.
206
Bruen’s method thus mightultimately be a waystation to other, nonanalogical
doctrinalrules. Thatmakes it all the more important that the initial decisions
that directly apply the historical-analogical method are well-grounded, because
they will shape the future of the doctrine in the same way as the early two-part
framework cases did afterHeller.
AfterBruen,lower courtsmustnot only establishthe original meaning of
constitutionaltext and the historicalfacts probative of it, but also drawconnec-
tionsbetween a subsetof historicalfacts and modern laws to determine the va-
lidity of the latter. This approach raises fundamental questions about legal rea-
soningthat have beenoverlookedamidst the focus on what historical gun
regulation lookedlike.No one seriously disputes that many of today’s realities
202. Dist.of Columbiav. Heller, 554 U.S. 570, 626-27 (2008).
203. SeeRuben & Blocher,supranote20, at 1493-94 (findingthat, in the eight years afterHeller, at
least twenty-one percent of cases were decided on the basis of controllingprecedent).
204. SeeFrederick Schauer,Why PrecedentinLaw (andElsewhere) Is Not To tally (or EvenSubstan-
tially) About Analogy, 3 P
ERSPS.PSYCH.SCI.454, 454 (2008) (notingthat precedentimposesa
constraint—following a relevantly similar decision despite disagreement—that is not present
in many other forms of analogical reasoningdirected more to making the “best” decision).
205. Kanter v. Barr, 919 F.3d 437, 458 (7th Cir. 2019) (Barrett, J., dissenting).
206. Cf.Amy C. Barrett & John C. Nagle,CongressionalOriginalism, 19 U. PA.J.CONST. L. 1, 1
(2016) (“Precedent posesa notoriously difficult problem for originalists.”).

originalism-by-analogy andsecondamendmentadjudication
137
wouldbe unimaginabl e to the Foundinggeneration. But that central fact com-
plicates decision-makingrooted in historical analogy, providing a setof chal-
lenges weaddress in thefollowingPart.
ii. implementing originalism-by-analogy
In the wake ofBruen, courts are faced notonlywiththe concrete difficulty of
resolving Second Amendment cases, butmore broadly with making sense ofa
novel constitutional methodology thatbothbuilds upon anddepartsfrom
standard approaches to history-based constitutional decision-making. As inthe
years afterHeller, lower courtswill be the primary authors of doctri ne to imple-
mentBruen’s directives.
207
How they do so is especially important if the approach
spre ads toother areas of constitutionallaw, which seems likely given thecurrent
majority’s apparent commitment to historicismand dissatisfaction withconven-
tional tests like the tiers of scrutiny.
208
In this Part, we identify several challenges—and somesolutions—to imple-
menting originalism-by-analogy coherently. First,and mostfundamentally, the
central taskafterBruenis not simply finding historical sources, but also drawing
meaningful connectionsbetween them and presentcontroversies.
209
To do so
sensibly, courts need to articulate principles of relevant similarity—asBruenitself
suggests.
210
Second, the Second Amendment righ t at issue,regulatory tradition,
and principles of relevant similarity haveto be cast at a level ofgeneralitythat
limits anachronism andpermits meaningful comparison. Third, courtsmust
20.See Ruben & Blocher, supra note 20, at 1439, 1455 (noting that after Heller, the Supreme Court
“[left] doctrinal development primarily to the lower courts,” which crafted rules and standards
in more than 1,000 challenges); see also Denning & Reynolds, supra note 51, at 35 (“[T]he
lower court response may be as important as the Supreme Court action itself, yet likely to
receive much less attention.”).
20.See, e.g., N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2129 & n.5 (2022) (emphasiz-
ing the Court’s “rejection of means-end scrutiny” and characterizing a statement in Heller
about “the standards of scrutiny that we have applied to enumerated constitutional rights” as
a “gilding-the-lily observation”).
20
9.To be clear, the former is a substa ntial difficulty as well, give n the expertise, time, and re-
sources needed to research historical gun regulation. See Shawn Hubler, In the Gun Law Fights
of 2023, a Need for Exp erts on the Weapons of 1791, N.Y. TIMES (Mar. 16, 2023), www.
nytimes.com/2023/03/14/us/gun-law-1791-supreme-court.html [https://perma.cc/XFP7-
S2Z3]; infra notes 338-344, 411-417 and accompanying text; see also Joseph Blocher & Brandon
L.Garrett, Originalism and Historical Fact-Finding, 111 GEO. L.J. (forthcoming 2023) (on file
with authors) (exploring the degree to which originalism relies on claims of historic al fact
w
ithout employing the usual legal rules of fact-finding like introduction at trial, adversarial
testing, and deference on appeal).
210.142 S. Ct. at 2132.

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recognize their institutional limitations with regard to historical fact-finding, as
well as a continued role for modern empirics and legislative deference.
We offer this combinationof critique and solution neither to praise original-
ism-by-analogy nor to bury it. In aBruenamicus brief filed in support of neither
party, we arguedagainstthe adoptionof the text, history, and tradition ap-
proach.
211
The early returnsfrom post-Bruencasesconfirm many of our fears
that such an approach fails to give meaningful guidance in contemporary Second
Amendment jurisprudence. As should be clear by now, we think the opinion’s
methodology is problematic—as do some whocelebrate the outcome.
212
But for present purposes we write from the internal perspective, attempting
to make the mostof what the Courthas given us. That task is importantand
urgent as legislatures attemptto address the astonishing recent rise in gun deaths
and as courtsare faced with a risingtide of Second Amendment cases whose
resolution will shapethe balanceof gun rightsand regulation for many years to
come. Judges,litigators, and scholarsmustall be able to make arguments within
Bruen’s framework, even if they believe it to be fundamentally flawed.ThisPart
supplementscritiquewith a positive vision for coherent implementation.
A.Principles of Relevant Similarity
The essence of analogical reasoningis comparingthings by reference to some
principleof relevant similarity.Bruenrecognizedas muchin sayingthat“because
‘[e]verythingis similar in infinite ways to everything else,’ one needs ‘some met-
ric enabling the analogizerto assess which similarities are important and which
are not.’”
213
This is not a matter of adding up characteristics or employing unex-
amined intuitions, but of making choices about what matters.
214
In Part I, we
211. SeeBriefof SecondAmendmentLaw Professors as Amici Curiae in Support of Neither Party,
supranote 66, at 6-8.
212. Denning& Reynolds,supranote 51, at 19-20; Barnett & Lund,supranote83 (“Rather than
relying on specioushistorical traditions, courts could evaluate gun laws againstthe purpose
of protectingthe right to keepand bear arms: facilitating the exercise of the fundamental right
of personal and collective self-defense.”).
213. Bruen, 142 S. Ct. at 2132 (quoting Schauer & Spellman,supranote47, at 254 (footnotesomit-
ted));see alsoA
LEXANDER&SHERWIN,supranote47, at76-83 (“Similaritiesare infinite;there-
fore some rule or principle is necessary to identify importantsimilarities.”); Sunstein,supra
note132, at 745 (“The major challenge facing analogical reasonersis to decide when differences
are relevant.”).
214. BALKIN,supranote 183, at 140 (“Onemustdraw analogies and make extrapolations to apply
them to today’s problems in today’s world. There is nothingwrong withcreative extension if
we recognizeit for what it is. It is partof the lawyer’s trade. The task of thickversions of
originalism, however, is to disguise this creativity and analogical extension so that it appears

originalism-by-analogyand second amendment adjudication
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describedBruen’s haltingefforts to do so. Here, we show howBruen’s failures
have generated unprincipled decision-making in the lower courts. We then at-
temptto distilllessons fromthe literature on analogical reasoning—a literature
that has not yet beenfully operationalized in discussions of originalism and other
historicalapproaches to constitutional law.
1.Historical CitationsWithout Reasoning
UnderBruen, courts must,at a minimum,articulate workableprinciples of
relevant similarity. In the kind of historical-analogical test thatBruenhas created,
suchprinciples formthe basis for judicial decision, so to say that courts must
articulate them is simply to say that they mustgive reasonsfor their decisions.
And yet manypost-Bruencaseshave failed this basic requirement.
The first prominentpost-Bruencase wasAntonyukv. Nigrelli, a challengeto
a New York regulation barring gunsfrom various places includingbehavioral-
health centers,playgrounds,nursery schools, and homeless shelters.
215
In the
spanof ten weeks, the case resulted in a trilogy of opinions attempting original-
ism-by-analogy.
216
In the first, the courtopined that all of New York’s sensitive-
place restrictions were unconstitutional because “the SupremeCourt in [Bruen]
effectively barredthe expansion of sensitive locations beyondschools, govern-
ment buildings, legislative assemblies, polling places and courthouses,” and the
court couldnot find “historicalanalogsfor restricting firearms atallof the” lo-
cations enumeratedin the New York law.
217
Five weekslater, in a second opinion,
that if we want to be faithful to the law—as opposed to being lawless—we really have no
choice but to follow the past’s commands.” (citation omitted)); Frederick Schauer,Analogy in
theSupreme Court:Lozman v. City of Riviera Beach, Florida, 2013 S
UP.CT.REV. 405, 416-17
(2013) (“Identifyinganalogiesor disanalogies between or among multi-attribute items is not
justa matter of countingattributes when noneof the attributes is strictly necessary.
Some. . . attributes are simply more importantthan others.”).
215. SeeN.Y.PENALLAW§ 265.01-e (McKinney 2022) (enactingthe Concealed Carry Improve-
mentAct);Antonyuk v. Hochul, 640 F. Supp. 3d 697 (N.D.N.Y.) [hereinafterAntonyukIII].
216. SeeAntonyuk v. Bruen,624 F. Supp. 3d 210 (N.D.N.Y. 2022) [hereinafterAntonyuk I];An-
tonyuk v. Hochul, 635 F. Supp. 3d (N.D.N.Y. 2022) [hereinafterAntonyuk II];AntonyukIII,
640 F. Supp. 3d 697 (N.D.N.Y 2022).AntonyukIandAntonyukIIaddressed whetherto impose
a temporary restraining order, andAntonyukIIIaddressed whether to impose a preliminary
injunction.Despitethe differingprocedural postures, the court found that the same standard
appliesto each.AntonyukII, 635 F. Supp. 3d at 124(“In the Second Circuit, the standard for
issuanceof a temporary restraining order is the same as the standard for a preliminary injunc-
tion.”) (citingFairfieldCnty. Med. Ass’n v. United Healthcare, 985 F. Supp. 2d 262, 270 (D.
Conn.2013),aff’d as modified, 557 F. App’x 53 (2d Cir. 2014)). Our focus here is on the Second
Amendmentmethodology that also should not vary between a ruling on a temporary restrain-
ing order and a preliminary injunction.
217. Antonyuk I, 624 F. Supp. 3d at 257.

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the court walked back both of these methodological interpretations ofBruen.
218
As for what countsas a sufficient analogue, however, the court stated simply that
“generally, a historicalstatute cannotearn the title ‘analogue’ if it is clearly more
distinguishable thanit is similar to the thing to which it is compared.”
219
Instead
of explaining whatmakesa law “distinguishable,” the courtresorted to a counting
exercise, concluding that at least three historical laws are needed to comprise an
analogous“tradition.”
220
A monthlater, in its third opinion, the courtacknowl-
edged that sometimes it must“broaden its conception of what constitutes an
‘analogue’ and focus its attention on the justification for, and burden imposed
by, it.”
221
But the courtdid not explain howto “broaden” its conception of what
constitutesan “analogue.”
222
Rather, it added another layer atop the quantityof
laws necessary for an analogous “tradition”: the laws must govern more than
fifteen percent of the population.
223
In none of the opinions did the court artic-
ulateclearprinciplesof relevant similarity.
Predictably, the shifting methodologies and failure to identify principles of
similarity have created confusion. Bans on guns in places of worship were un-
constitutionalinAntonyuk I,
224
constitutional inAntonyuk II,
225
and unconstitu-
tionalagain inAntonyukIII.
226
Bans on gunsin children’s summercampswere
218. AntonyukII, 635 F. Supp. 3d at 138-39 (“[A]lthough the Supreme Court has not altogether
barred the expansion of sensitive locations beyond schools, governmentbuildings, legislative
assemblies,polling places and courthouses,it has indicated a skepticism of such an expansion
basedon the historical record.”);id.(“[A]lthough this Courthas found that most of the
CCIA’s list of ‘sensitive locations’ violate the Constitution, the Court does so not because the
list (or a portion of the list) mustrise or fall in its entirety . . . .”).
219. Id.at 131.
220. Id.at 132. As the opinion put it, “two such historical analogues can . . . appear as a mere trend,”
not a “tradition,” andBruenrequires “traditions,” not “trends.”Id.
221. Antonyuk III, 640 F. Supp. 3d at 310.
222. Id.at 326.
223. Id.(“TheCourt neednot go back and recalculate the numbers so that they both come from
the same census: it is confident that, under reasoning . . . in [Bruen], the resulting percentage
of less than 15 would not suffice to be representative of the Nation.”).
224. 624 F. Supp. 3d at 256-57 & n.43. In eachAntonyukopinionthe court considered the “likeli-
hood of success on the merits,” an elementfor both temporary restrainingorders and prelim-
inary injunctions.See, e.g.,AntonyukII, 635 F. Supp. 3d at 125. The constitutional rulingsref-
erenced in this discussion should be qualifiedaccordingly.
225. 635 F. Supp. 3d at 141. The court required New York to make “an exception for those persons
who have been taskedwiththe duty to keep the peace at the place of worshipor religious
observation.”Id.at 142.
226. 639 F. Supp. 3d 232, 296-97 (N.D.N.Y. 2022).

originalism-by-analogyand second amendment adjudication
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unconstitutional inAntonyukIandII,
227
but constitutional inAntonyukIII.
228
The samewent for gunsin Times Square: unconstitutional in the first two opin-
ions,
229
and constitutional in the third.
230
InAntonyukIandII, the court found
the prohibition on gunsin mass transit unconstitutional for lack of historical
analogues.
231
InAntonyukIII, the courtopined that a ban on gunson NYC buses
would be constitutional“during the period before school.”
232
Within the opinions, a litigantcouldonly speculate about why some place-
based restrictions were constitutional and others were not. InAntonyukIII, for
example,the court found it constitutional to restrict guns at playgrounds be-
cause of the presence of children, but unconstitutional to restrict them at zoos
because although childrenmightbe present, some adults are unaccompanied by
them.
233
The courtexplained the discrepancies between opinions as a result of
“better briefingby the State Defendants and its further consideration of the his-
toricallaws obtainedin light of the standard set forth in [Bruen].”
234
But the
meandering methodologiesand correspondingly divergent constitutional out-
comesare more clearly an indicationofBruen’s failure to set fortha clearstandard
and theAntonyukcourt’s failure to identify sensible, workable principles of rele-
vant similarity.
TheAntonyukopinions are not isolated examples.InUnitedStates v. Perez-
Gallan,
235
a federal judge declared unconstitutional a federal law prohibiting gun
possession by peoplesubject to a domestic-violence restrainingorder.
236
That
law was passed in 1994to address the relationship—well-documented now, but
apparently unappreciated at the Founding—between guns and domestic vio-
lence.
237
The court concluded that, afterBruen, “[n]olongercan lower courts
227. Antonyuk I, 624 F. Supp. 3d at 255;AntonyukII, 635 F. Supp. 3d at 143.
228. 639 F. Supp. 3d at 274 n.35.
229. Antonyuk I, 624 F. Supp. 3d at 255;AntonyukII, 635 F. Supp. 3d at 146.
230. AntonyukIII, 639 F. Supp. 3d 232 at 292 n.66.
231. Antonyuk I, 624 F. Supp. 3d at 255;AntonyukII, 635 F. Supp. 3d at 143.
232. 639 F. Supp. 3d at 330 n.114.
233. Id.at 267.
234. Id.at 297.
235. 640 F. Supp. 3d 697 (W.D. Tex. 2022).
236. Id.at 716 (holdingunconstitutional 18 U.S.C. § 922(g)(8) (2018)).
237. ViolentCrimeControland Law EnforcementAct of 1994, Pub. L. No. 103-322, 108 Stat. 1796
§ 110401(c) (codifiedat 18 U.S.C. § 922(g) (2018)).SeeSafe Homes for Women Act, H.R.
4092, 103d Cong. § 1624 (1994) (findingthat “domestic violence is the leading cause of injury
to womenin the United States between the ages of 15 and 44” and “firearmsare used by the
abuserin 7 percent of domestic violenceincidents”);see alsoEmiko Petrosky, Janet M. Blair,
Carter J. Betz, Katherine A. Fowler, Shane P.D. Jack & Bridget H. Lyons,RacialandEthnic

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account for public policy interests, historical analysis being the only tool.”
238
And
it found that “straightforward historical analysis . . . reveals a historical tradition
likely unthinkabletoday” because “until the mid-1970s, government interven-
tion—muchless removing an individual’s firearms—because of domestic vio-
lence practically did not exist.”
239
The court agreed withthen-JudgeBarrett’s ob-
servation that “founding-era legislatures categorically disarmed groups whom
they judged to be a threat to the public safety.”
240
But the courtrefusedto see
that legal traditionas analogousto modern restrictions on domestic abusers, de-
cliningto takewhat it calleda “leapof faith” in concluding that the “colonies
considereddomestic abusers a ‘threat to public safety.’”
241
Thus,the historical
failureto treat domestic violencespecificallyas a threat to publicsafetyin the late
1700s made it unconstitutionaltodayto disarm people whoma judge has deter-
mined present a threat of domestic violence.
242
Otheropinions have similarly limited the analogical inquiry to dead ringers.
For example, inFirearmsPolicyCoalitionv. McCraw, a districtjudge struckdown
a Texas law prohibitingeighteen- to twenty-year-olds from carrying a handgun
in public.
243
The courtemphasizedthat the earliest age restriction identified by
the government dated to 1856—too late in the court’s view.
244
Nowhere did the
courtconsider whetherotherhistoricalrestrictionson categories of peoplecould
be relevantly similar to those based on age,
245
nor did it considerwhether gun
violenceamong youthwas a historical problem that warranted a historical solu-
tion.
Differences in Homicidesof AdultWomenandtheRole of Intimate Partner Violence—United States,
2003-2014, 66 M
ORBIDITY&MORTALITYWKLY.REP.741, 741-42 (2017) (observing that nearly
half of womenwho are murdered in the United States are killed by an intimate partner and
more thanhalf of those murders involve a firearm); Elizabeth R. Vigdor& James A. Mercy,
DoLawsRestrictingAccess to FirearmsbyDomestic Violence Offenders Prevent Intimate Partner
Homicide?, 30 E
VALUATIONREV.313, 313 (2006) (concluding that roughly sixty percent of in-
timate-partnerhomicides are committed with a firearm).
238. Perez-Gallan, 640 F. Supp. 3d at 697.
239. Id.at 703.
240. Id.at 710 (quoting Kanter v. Barr, 919 F.3d 437, 458 (7th Cir. 2019) (Barrett, J., dissenting)).
241. Id.(emphasis omitted).
242. Id.;cf.United States v. Quiroz, No. 22-CR-00104, 2022 WL 4352482, at *10 (W.D. Tex. Sept.
19, 2022) (refusingto extend the “historical tradition of excluding specific groups from the
rightsand powers reserved to ‘the people’” to those underfelony indictment, observing that
“little evidence” fromthe late 1700s “supports excludingthose under indictment in any con-
text”).
243. 623 F. Supp. 3d 740, 740 (N.D. Tex. 2022).
244. Id.at 756 (“The earliest law cited is from1856.”).
245. See infranotes 283-295 and accompanying text (discussing possible principlesof relevant sim-
ilarity basedon FoundingEra restrictions on categories of people).

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Similarly, inKoonsv. Reynolds, a challenge to New Jersey’s post-Bruenlaw
regulating publiccarry, a district judge issued a temporary restrainingorder
pendingfurtherlitigation abouta ban on gun possession in bars, emphasizing
the government’s failure to present exact historical replicas of the modern law.
246
The government pointed to historical prohibitions on possessing gunswhile in-
toxicated,
247
but the judge dismissed that precedentas having“no relevance here
as the restriction at issue clearly does not address possession of firearmsby in-
toxicated persons.”
248
The court relegated the question ofwhythe historicalin-
toxicationlawswerepassed to a footnote—“presumably because guns and alco-
hol do not mix”—stating withoutelaboration that it is “unlikely” any such
rationalewould adequately support the modern regulation.
249
Lookingonly for exact matches in the historical record, as some post-Bruen
cases have, failsto comply withBruen’s admonition that analogical reasoning
does not require finding a “historicaltwin.”
250
In effect, it is the equivalent of
ducking analogical reasoning entirely, looking for discrete historical facts rather
than principlesof relevant similarity. The historical record is not going to resolve
the methodological problem; guidance is more likely to be found in the literature
on analogical reasoning,to which we now turn.
2.TheCentralityof RelevantSimilarityin AnalogicalReasoning
Cass Sunsteinopens his influential“On Analogical Reasoning” with the ob-
servation: “Reasoning by analogy is the mostfamiliar form of legal reason-
ing.”
251
FredSchauersimilarly notes, “It has long been argued that reasoning by
analogy—which is often claimed to be central to human thoughtgenerally—is at
the coreof legal reasoning, legalinterpretation,and legal decision-making.”
252
Yet the fact that analogicalreasoningis commonplace in law doesnot meanthat
246. No. 22-7464, 2023 WL 128882, at *13-14 (D.N.J. Jan. 9, 2023).
247. Id.at *14.
248. Id.
249. Id.at *14 n.15. In its subsequent opiniongranting a preliminary injunction against this provi-
sion,the courtprovidedeven less analysis, referringback to its decision at the temporary-
restraining-order stage and reducing “the dangers of mixing firearms with alcohol” to “policy
arguments” that “this Courtcannotconsider.” Koons v. Platkin,No. 22-7464, 2023 WL
3478604, at *86 (D.N.J. May 16, 2023).
250. N.Y. StateRifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022).
251. Sunstein,supranote 132, at 741. A revised version of the article recently posted to SSRN begins
slightly differently: “Much of legal reasoning is analogical . . . .” Sunstein,supranote 39, at 1.
252. Schauer,supranote 214, at 407;see alsoKENTGREENAWALT,STATUTORY ANDCOMMONLAW
INTERPRETATION188 (2013) (noting that analogical argument is “thought by some to be the
mostdistinctive aspect of legal reasoning”).

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it is easily applied—any more so than concepts like “precedent”
253
or even “law.”
For one thing, as with many deep-set legal practices,legalanalogical reasoning
is not alwaysexplicitly identified as such.
254
And even when it is identified,the
key factorin any analogical process—the principle that mediates between com-
parators, makingthemrelevantly similaror not—can operatesubsilentio.
Schauer points to the Supreme Court’s 2013 decision inLozmanv. City of Riv-
iera Beachas an exampleof analogicalreasoningin law.
255
There,a 7-2 majority
decidedthat the petitioner’s houseboat was not a “vessel” and thus not subject
to admiralty jurisdiction.
256
In concludingthat the houseboat was more like a
house thana boat, the majority reasoned: “[I]n our view a structure does not fall
withinthe scope of this statutory phrase unless a reasonable observer, looking to
the home’s physical characteristics and activities, wouldconsider it designed to
a practicaldegree for carrying people or things over water.”
257
Dissenting,Justice
Sotomayorcriticized the test as malleable—an “I know it when I see it” approach
that would “import[]” other seemingly irrelevant criteria.
258
As Schauer notes,
“it remains difficult to escape the conclusion . . . that the Court’s result is actually
driven by an analogical process” and that “[i]n the final analysis,Lozman’s resi-
dence simply looked more to the Courtlike a house thana boat.”
259
Identifying principles of relevantsimilarity is especially important in a sys-
tem of social decision-making like law. If actors in a social system analogized
usingidiosyncratic,unidentified principles, it would be impossible to coordi-
nate,debate, or guideothers. We might choose to group bookson our personal
bookshelves according to howmuch we like them or when we bought them. But
thoseprinciples will be unintelligible to others; they could not be used to organ-
ize a library’s public holdings. The organizingprinciplemust itself be sensible
and intelligible,especially in the case of law, given the significant stakes involved.
If the principle of relevant similarity inLozman—that is, the characteristicthat
253. See,e.g., RANDYJ.KOZEL,SETTLEDVERSUSRIGHT:ATHEORY OFPRECEDENT(2017) (explor-
ing howindividualviews on the correctness of decisionsundermine the durability of prece-
dent);StefanieA. Lindquist& Frank B. Cross,EmpiricallyTe stingDworkin’s ChainNovelThe-
ory: Studying thePath of Precedent, 80 N.Y.U.
L.REV. 1156, 1159 (2005) (describing a complex
patchwork of explanations and theories that might explain the seemingly “commonplaceno-
tion of decidingaccording to precedent”).
254. See,e.g., Eric Ruben & Joseph Blocher,“Second-Class” Rhetoric,Ideology, andDoctrinal Change,
110 G
EO.L.J.613, 624-26 (2022) (discussing howvarious forms of rhetoric guide legal argu-
mentation, sometimes without attribution).
255. SeeSchauer,supranote 214, at 405.
256. SeeLozmanv. City of Riviera Beach, 568 U.S. 115, 118 (2013).
257. Id.at 121.
258. Id.at 139 (Sotomayor, J., dissenting).
259. Schauer,supranote 214, at 415.

originalism-by-analogyand second amendment adjudication
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unites “vessels”—hadbeen“anythingthat floats,” not things “designed to a prac-
tical degree for carrying people or things over water,”
260
Lozmanwouldhave been
subject to admiraltyjurisdiction and the impositionof a maritime lien against
him would havebeen proper.
261
What is needed, then, are principles of relevant similarity tied in an articula-
ble way to the shared goalsand functioning of law. If analogical reasoning is
deployed as legalreasoning, and legal reasoning shouldbe generalizable, coher-
ent, and clear,
262
then suchanalogical reasoning should be as well. That does not
mean that the principlesof relevantsimilarity—any more than other legalprin-
ciples—will always be capable ofprecisearticulation, nor that everyonewill al-
ways agree about what they are.
263
But that is no reasonto accept the kindsof
occluded and unprincipledreasoning on display in the post-Bruencases we de-
scribe here.
As withany otherapproachto legalreasoning, matters are morecomplex
than a singlethumbnail sketch can capture.
264
Some arguethat judges are just
announcingruleswhen they purportedly engage in analogical reasoning—that
policy choices reflectingnormative commitments are doing most,if not all, of
the work.
265
RonaldDworkin put it bluntly: “An analogy is a way of stating a
conclusion, not a way of reaching one, and theory must do the real work.”
266
Richard Posnercame to a similarconclusion: “One can call this reasoning by
260. Lozman, 568 U.S. at 118, 127.
261. Id.at 118-19 (describingthe questionof whether a maritimelien could be brought against
Lozman).
262. It is far beyond our scopehere to engage thoroughly with the jurisprudential debates, but we
suspect that nearly any theory of the rule of law will prioritizethese values.See, e.g., L
ONL.
FULLER,THEMORALITY OFLAW(1964) (identifyingvalues that constitute “the inner morality
of law”—namely, that laws be general, public, prospective, coherent, clear, stable, and practi-
cable).
263. On some accounts, analogical reasoning in law is valuable in part because it permits a kind of
incompleteagreement. Sunstein,Analogical Reasoning,supranote 39, at 1 (“[C]ourts are
drawn to analogical reasoning in large part because analogiesallow people to reach incom-
pletely theorized agreements.To say that one case is like another, we need a reason or a prin-
ciple, but we can oftenoffera reason or a principle that operates at a low level of ambition.”).
264. The precedinghas been what Schauer calls a “traditionalist[]” account. Schauer,supranote
214, at 420-21;seealsoL
LOYDL.WEINREB,LEGALREASON:THEUSE OFANALOGY INLEGALAR-
GUMENT
(2005)(probingthe complexities of reasoning by analogy). For a somewhat different
approachdescribing analogical reasoning as a form of abductive reasoning, see Scott Brewer,
Exemplary Reasoning:Semantics, Pragmatics, andthe RationalForce of Legal Argument byAnal-
ogy, 109 H
ARV.L.REV. 923 (1996).
265. See,e.g., Larry Alexander,Bad Beginnings, 145 U.PENN.L.REV. 57 (1996); Richard A. Posner,
ReasoningbyAnalogy, 91 C
ORNELLL.REV. 761 (2006)(bookreview); Peter Westen,On“Con-
fusingIdeas”: Reply, 91 Y
ALEL.J. 1153 (1982).
266. RonaldDworkin,InPraiseof Theory, 29 ARIZ.ST.L.J. 353, 371 (1997).

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analogy if one likes,but what is really involved is querying (or quarrying) the
earlier case for policies that may be applicable to the later one and then deciding
the later one by reference to those policies.”
267
Historical-analogicalreasoning is also deeply intertwined with considera-
tions of theory and policy. Indeed,one of our goals here is to make those consid-
erations morevisible and to show that, despite its posturing as neutral and ob-
jective,Bruen’s analogicalmethod involves a significant degreeof normative
decision-making. Whenjudges identify a principle of relevantsimilarity from a
prior case,
268
they will typically focus on its reasoning,which will involve theory,
policy, or othernormative considerations. InBruen, the Court did this by em-
phasizingthe centrality of self-defense in its ownprior decisions.
269
Andwhen
judges compare a later case to an earlier one by reference to that principle, they
mustask whether the two cases are sufficiently similar such that the identified
principle(self-defense, for example) compels the same result. InBruen, the
Courtconcluded that it did and thus that the right to keep and bear arms must
extendoutsidethe home.
270
In short, analogical reasoning requires judges to engage withnormative
questions of theory and policy. Indeed,this can be one of its strengths. But the
articulation of those principles of relevant similarity should be as coherent and
transparent as possible.
3.To ward Workable Principlesof RelevantSimilarityAfterBruen
Analysis ofBruen’s injunction that modern gun laws must be “consistent
withthis Nation’s historical tradition”
271
has generally focusedon identifying the
relevant“historicaltradition.” But as a matter of legal development, it is even
more important that courts elaborate what it meansto be “consistent” with that
tradition. Put differently, courts must identify principles of relevant similarity in
a historical-analogicalmode, beyond simply identifying a set of historicalcom-
parators. How mightthis look?
The regulation of sensitive places provides a useful illustration. After identi-
fying several historicalplace-based restrictions, themajority inBruen
267. RICHARDA.POSNER,OVERCOMINGLAW518 (1995).
268. Id.
269. N.Y. State Rifle & Pistol Ass’n v. Bruen,142 S. Ct. 2111,2133 (2022) (“As we stated inHeller
and repeated inMcDonald, individualself-defense is the central componentof the Second
Amendmentright.” (internal quotation marksomitted)).
270. Id.at 2135 (“Although we remarked inHellerthat the need for armed self-defenseis perhaps
‘most acute’ in the home, we did not suggest that the need was insignificant elsewhere. Many
Americanshazard greater dangeroutsidethe home than in it.” (citations omitted)).
271. Id.at 2126;see also id.at 2129-30 (reiterating this test nearly verbatim).

originalism-by-analogyand second amendment adjudication
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emphasized that “courts can use analogies to those historical regulations of ‘sen-
sitive places’ to determine that modern regulations prohibiting the carry of fire-
arms innewand analogoussensitive places are constitutionally permissible.”
272
Doing so meansunderstandinghowsuchrules“burdena law-abiding citizen’s
right to armedself-defense.”
273
It also means deducingfrom historicalsources
whysuchprohibitions are “justif[ied]”—perhaps becausethe location is central
to certain governmental or constitutionally protected activities,
274
is subject to
the government’s power as a proprietor,
275
is centralto participating in a demo-
cratic community,
276
or is a site of overcrowding in close quarters.
277
In other
words, courtsshouldnot conclude, asAntonyuk Idid, that the preciseplaces
identified byBruenare theonlyones at which gunscan be banned.
278
Nor should
they list historical laws and thensimply declare a modern law disanalogous with-
out reasoned analysis, asKoonsdid.
279
The judicial task is finding what principles
are reflected by the historical restrictions.
Thesensitive-placesexample reflects thatthe historical-analogical mode
might not reduceto asingleprincipleof relevantsimilarity. This point bears em-
phasizing since someopinions that have implied the need for principles of rele-
vantsimilarity when engagingin analogicalreasoninghave assumed that there
could be onlyonesuch principle.
Considerlaws prohibitinggun possession by people with past convic-
tions.
280
Ample scholarship has questioned“the extent to whichfelons. . . were
consideredexcluded from the right to bear arms during the founding era.”
281
272. Id.at 2133.
273. Id.at 2132-33.
274. Darrell A.H.Miller,Constitutional Conflict andSensitivePlaces, 28WM.&MARYBILLRTS.J.
459, 466 (2019).
275. See,e.g., Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015); United States v.
Class, 930 F.3d 460, 465 (D.C. Cir. 2019).
276. Blocher& Siegel,supranote54.
277. See,e.g., State Defendants’ Memorandumof Law in Oppositionto Plaintiffs’ Motion for a
Preliminary Injunctionat 3-4,AntonyukII, 635 F. Supp. 3d (N.D.N.Y. Oct.13, 2022) (No. 22-
CV-00986), ECF No. 48 (“History shows several broad categoriesof locations in which states
prohibiteddeadly weapons to protect the people,including . . . places including fairs, ball-
rooms,parties,and public exhibitions where large numbers of people would gather in a con-
finedspace.”).
278. Seesupranote 216 and accompanying text (discussingAntonyuk I, 624 F. Supp. 3d 210
(N.D.N.Y. 2022).
279. See supranotes 246-249 and accompanying text (discussing Koons v. Reynolds, No. 22-7464,
2023 WL 128882(D.N.J. Jan. 9, 2023)).
280. See,e.g., 18 U.S.C. § 922(g)(1) (2018).
281. United States v. Skoien,614 F.3d 638,650 (7th Cir. 2010) (Sykes, J., dissenting)(collecting
scholarship).

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Somehistorical-analogical opinionshave correctly looked for principles that ex-
plainotherrestrictions that existedduring the FoundingEra, but then sought to
identify a unitary principleto explainthem all. For example, then-Judge Barrett,
in an opinionaddressing the constitutionality of disqualifying a nonviolent felon
fromfirearm possession,confidently asserted that “legislatures disqualified cat-
egoriesof peoplefrom the rightto beararmsonlywhen they judgedthat doing
so was necessary to protectthe public safety.”
282
In a post-Bruenopinion,Range
v. AttorneyGeneral, the majorityfailed to identifyany principles of relevant sim-
ilarity fromhistorical restrictions,
283
but concurringand dissentingjudgesof-
fered a range of solitary principles. One judge read historical disarmamentlaws
to reflecta “history and tradition of disarming those persons wholegislatures
believed would, if armed, pose a threat to the orderly functioning of society.”
284
Anothersuggestedthat “the founderscategorically disarmed the members of
these groups because the founders viewed them as disloyal to the sovereign.”
285
Yet anotherconcludedthat “[f]our centuries of Anglo-American history demon-
strate that legislaturesrepeatedly exercised their discretion to impose ‘status-
basedrestrictions’ disarming entire ‘categoriesof persons,’ who were presumed,
basedon past conduct, to be unwilling to obey the law.”
286
Still othercourts have
justifiedsimilar prohibitions basedon historical laws denying guns to those who
lack “virtue.”
287
282. Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019)(Barrett, J., dissenting),abrogatedbyN.Y. State
Rifle & PistolAss’n v. Bruen,142 S. Ct. 2111 (2022); Blocher & Carberry,supranote56, at 1
(observingthen-JudgeBarrett’s view that “dangerousness is the SecondAmendment’sexclu-
sivelimiting principle”) (emphasis added).
283. 69 F.4th 96, 105 (3d Cir. 2023) (“That Founding-era governments disarmedgroups they dis-
trusted like Loyalists, Native Americans, Quakers, Catholics, and Blacks does nothing to
prove that Range is partof a similar group today.”);id.at 104 n.9 (“We need not decide
[whetherviolence or dangerousness is the operative principle] because the Governmentdid
not carry its burden to provide a historical analogueto permanently disarm someone like
Range,whethergrounded in dangerousness or not.”).Rangeis thus another exampleof a
courtdecidinga post-BruenSecond Amendment dispute without articulating any principles
mediating historical and modern laws.SeesupraSectionII.A.1(discussing the frequent failure
of courtsto identify principles of relevant similarity).
284. Range, 69 F.4th at 110 (Ambro, J., concurring);seealso id.at 112 (describing howregulations
contemporaneous with the Fourteenth Amendment’s enactment “echo the impetus of the
Founding-era laws—a desire to stopfirearms from being possessed or carried by those who
cannot be trusted withthem”).
285. Id.at115 (Schwartz, J., dissenting).
286. Id.at 117-18 (Krause, J., dissenting) (quoting United States v. Jackson, 69 F.4th 495, 504-06
(8th Cir. 2023)).
287. Binderupv. Att’y Gen.,836 F.3d 336, 348 (3d Cir. 2016); United States v. Carpio-Leon,701
F.3d 974, 980 (4th Cir. 2012) (“[F]elons ‘were excludedfrom the rightto arms’ becausethey

originalism-by-analogyand second amendment adjudication
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But there neednot be onlyone reason that legislatures historically disarmed
certaingroups. For example, an Eighth Circuit panel recently acknowledged that
historicaldisarmamentlaws might be based on a view that “legislatures have
longstandingauthority and discretion to disarm citizens who are not ‘law-abid-
ing’” or to disarmthose “who are deemed more dangerous thana typical law-
abiding citizen.”
288
Thepanel discussed history supportive of both views and
thenevaluated the Second Amendment issue in light of each:
In sum, we conclude that legislatures traditionally employed status-
based restrictions to disqualify categories of persons from possessing
firearms.Whether thoseactions are best characterizedas restrictions on
personswho deviated from legalnorms or persons who presented an un-
acceptablerisk of dangerousness, Congress acted withinthe historical
traditionwhen it enacted § 922(g)(1) and the prohibition on possession
of firearms by felons.
289
Thisexample reflectsthe fact that it is inaccurate to speak of history as if it
were a discrete, uniform thing. Legislators of the past, like those today, pursued
differentagendas that sometimesconverged and other times did not. Partly as a
result,it will often be impossible to identify a narrowand precise principleof
similarity by which to compare modern and historical gun laws. There may even
be good reasonsto define such principles at a high level of abstraction, as in the
examples above: dangerousness, virtue, and so on. Indeed, the next Section ad-
dresses in more detail the value of such approaches. Our point here is simply that
suchprinciplescan still be articulable and transparent.
were deemed unvirtuous.” (quotingGlenn Harlan Reynolds,A CriticalGuideto theSecond
Amendment, 62 T
ENN.L.REV. 461, 480 (1995))); United States v. Yancey, 621 F.3d 681, 684-
85 (7th Cir. 2010) (“[M]ost scholars of the Second Amendmentagree that the right to bear
armswas tied to the concept of a virtuous citizenry and that, accordingly, the government
could disarm ‘unvirtuous citizens.’”); United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir.
2010) (observing the scholarly consensus“that the right to bear arms was ‘inextrica-
bly . . . tied to’ the concept of a ‘virtuous citizen[ry]’”); United States v. Rene E., 583 F.3d 8,
15 (1st Cir. 2009) (“In the parlance of the republican politics of the time, these limitations
were sometimesexpressed as efforts to disarm the ‘unvirtuous.’”).
288. SeeJackson, 69 F.4th at 502.
289. Id.at 505.

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B.AnachronismandLevelsof Generality
As historian Bernard Bailyn put it, “the pastis a different world.”
290
That
raises difficulties for the project of usinghistorical understandingsto establish
contemporary constitutionalmeaningbecause contemporary readers—espe-
cially non-historians—willinevitably struggle to understand this“different
world.” But it is an especially seriousproblem for originalism-by-analogy, which
demands not only understanding the past but the furtherstepof renderingit
relevantly similarto the present.
A standard solution to problems of anachronism is to alter the level of gen-
erality, typically by pitching a question at a broader level. So, for example, rather
than asking whether the Foundinggeneration specifically disarmed domestic
abusersor prohibited rocket launchers, one might ask instead whether they dis-
armed people they judged to be “dangerous”
291
or prohibitedweaponsthey
thoughtwere“dangerous and unusual.”
292
The strikingdifference between these
inquiries, both of them rooted in historical analogy, demonstrates how
“[m]ovements in the level of constitutionalgenerality may be usedto justify al-
most any outcome.”
293
Thatmakesit all the morecrucial that levels of generality
be selected and applied with care. Here, we elaborate the threat of anachronistic
analogy and the promise—and perils—of levels of generality as a solution.
1.AnachronismAfterBruen
Perhapsthe mostconcrete and jarring complication ofBruen’s historical-an-
alogicalapproachis the degreeto whichit requires judges to compare modern
and historical gun laws, given the extraordinary technological and social changes
sincethe Founding. What meaningful historical comparatorcould there be for
the modernprohibition on guns in airplane cabins
294
or restrictions on auto-
matic weapons?
295
And what about modernlaws that reflectbroader social
290. BERNARDBAILYN,SOMETIMESANART:NINEESSAYS ONHISTORY22 (2015). Or, as L.P. Hartley
put it in the first line ofThe Go-Between, “Thepast is a foreign country: they do thingsdiffer-
ently there.” L.P.
HARTLEY,THEGO-BETWEEN7 (1953).
291.Kanter v. Barr, 919 F.3d 437, 454, 464 (7th Cir. 2019) (Barrett, J., dissenting).
292. Dist.of Columbiav. Heller, 554 U.S. 570, 627 (2008).
293. Frank H. Easterbrook,AbstractionandAuthority, 59 U.CHI.L.REV. 349, 358 (1992).
294. See,e.g.,14 C.F.R. § 135.119 (2022) (“No person may, while on board an aircraft being operated
by a certificate holder, carry on or about that person a deadly or dangerous weapon, either
concealed or unconcealed.”).
295. See,e.g., 18 U.S.C. § 922(o) (2018)(banning the possessionor transferof machineguns not
possessed before May 19, 1986);see alsoBrianDeLay, The Myth of Continuityin American

originalism-by-analogyand second amendment adjudication
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change,like the prohibition on gun possession by those who have committed
crimesof domestic violence?
296
Many post-Bruencases fall prey to anachronism.InAntonyukII, for example,
the courthalted enforcement of New York’s requirement that concealed-carry-
permitapplicants providea list of social media accounts for the past three years,
notingthat New York failed to providehistorical analogues from the Founding
Era “requiring persons to disclose the pseudonyms they have used while pub-
lishingpoliticalpamphlets or newspaperarticles.”
297
InUnitedStates v. Price, a
court declaredunconstitutionalthe federal ban on possessing or receiving “any
firearm which has had the importer’s or manufacturer’s serial number removed,
obliterated, or altered.”
298
The courtexplainedthat “[a] firearm without a serial
numberin 1791 was certainly not considered dangerous or unusual compared to
other firearmsbecause serial numbers were not required or even commonly used
at that time.”
299
The mostprominentpost-Bruenappellatedecisionthusfar isUnited States v.
Rahimi, in whichthe Fifth Circuit struckdown a law prohibiting gun possession
by people subject to a domestic-violence restraining order,
300
and which the Su-
preme Court is scheduled to review in the current Term. The court concluded
that the ban on possession of firearms by people who present a risk of domestic
violenceis “an outlier[] that our ancestorswould never have accepted.”
301
To cast
the inquiry asRahimidid is to invitea combination of social and technological
anachronism. It is true that the Founding generation underprotected women
from domestic violence. But that was a function of their own moral insensibility
with regardto domesticviolence,and likely also the fact that colonial-era mus-
kets were simply not used as commonly in domestic violence incidents as hand-
guns are today.
302
GunCulture (June 20, 2023) (unpublishedmanuscript) (on file with author) (tracing the
evolutionof firearm technology and demonstrating significant dissimilarities between histor-
ical and modernfirearms).
296. See,e.g., 18 U.S.C. § 922(g)(9) (2018) (banning possession by anyone “who has beencon-
victedin any court of a misdemeanor crime of domesticviolence”).
297.635 F. Supp. 3d 111, 136 (N.D.N.Y. 2022).
298. 635 F. Supp. 3d 455, 459 (S.D. W. Va. 2022) (quoting18 U.S.C. § 922(k)(2018))(ruling on
the constitutionality of a conviction under 18 U.S.C. § 922(k)).
299. Id.at 464.
300. United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023);see alsoUnited States v. Perez-Gallan,
640 F. Supp. 3d 697 (W.D. Tex. 2022); 18 U.S.C. § 922(g)(8) (2018) (prohibitingthe posses-
sion of firearms by persons who are subject to domestic violencerestrainingorders).
301. Rahimi, 61 F.4th at 461 (citation and internal quotation marksomitted).
302. See infranote 314 and accompanying text.

the yale law journal133:992023
152
One can imagine a similarrisk with respect to suicide-prevention laws like
those requiring guns to besafelystored or providing for extreme risk-protection
orders.
303
Modernresearch has increased our understanding of mental health
and revealed a strong connection between meansrestriction and suicide preven-
tion not appreciated in the1700s,
304
when a firearm would have been a less-pre-
ferred instrument.Meanwhile, inFirearmsPolicy Coalitionv. McCraw, the court
searchedexclusively for historicalage restrictions when considering a modern
age restriction, but nowhere considered whether historical gun violenceamong
youths waseven a problem in need of a solution.
305
Judges applying originalism-by-analogy mustbe attu ned to the ways guns
and gunviolence haveevolved since theFounding, thecorresponding shape of
historical weapons regulations, and howselectionof a level ofgenerality will
guide the historical-analogical exercise. We address each inturn.
a. Guns andGun Violence: Then andNow
As a general matter, private firearm viol ence today exceeds, by an order of
magnitude,private firearm violence in1791, which presents an overarching chal-
lenge for basing the constitutionality ofmodern gun laws on the evidence (or
lack thereof) of historical gun laws. AsJudge Posner put it afterHeller, the sub-
ject of gunviolence “has been transformed” sincethe Founding:“The Framers
of the Bill ofRights could not have been thinking of the crime problemin the
large crime-riddenmetropolises of twenty-first-century America.”
306
In fact,
scholars have shown that“during thecolonial period,the urbanareas were
.See Chi ld Access Prevention & Safe Storage, GIFFORDS L. CTR. giffords.org/
lawcenter/gun-laws/policy-areas/child-consumer-safety/ ch ild-access-prevention-and-safe-
st or age
[https://perma.cc/36DW-6C92] (surveying safe storage laws); Jeffrey W. Swanson, Hsi u-J u
Lin, Linda K. Frisman, Michele M. Easter & Marvin S. Swartz, Implementation and Effectiveness
of Connecticut’s Risk-Based Gun Removal Law: Does it Prevent Suicides?, 80 LAW & CONTEMP.
PROBS. 179, 180 (2017).
.See, e.g ., Deborah Azrae l & Matt hew J. Miller, Reducing Suicide Without Affecting Underlying
Men tal Health: Theoretical Underpinnings and a Review of the Evidence Base Linking the Availa-
bility of Lethal Means and Suicide, in THE INTERNATIONAL HANDBOOK OF SUICIDE PREVENTION
637, 652-54 (Rory C. O’Connor & Jane Pirkis eds., 2016); Michael C. Monuteaux, Deborah
Azrael & Matth ew Mill er, Association of Increased Safe Household Firearm Storage with Firearm
Suicide and Unintentional Death Among U.S. Youths, JAMA PEDIATRICS 657, 661 (2019).
5.See supra notes 243 -2 44 and accompanying text (discussing Firearms Pol’y Coal. v. McCraw,
623 F. Supp. 3d 740 (N.D. Tex. 2022)).
6.Richard A. Posne r, In Defense of Loose ness, NEW REPUBLIC (Aug. 27, 2008), https:/ /n ewrepub-
lic.com/article/62124/defense-looseness [ht tps:/ /perma.cc/V9ZY-T4DT].

originalism-by-analogy andsecondamendmentadjudication
153
relatively free of the consistent useof firearms.”
307
According to historian Ran-
dolphRoth, spikes in homicidesoccurred invariousnonurbanplaces, such as “in
the Georgia-S outh Carolina backcountry, where the RevolutionaryWar was a
civil war.”
308
Into the1800s, homicide rates in the comparatively rural So uth far
outpaced those in urban areas.
309
Likewise, firearm technology has transformed. Americans in1791 generally
owned muzzle-loadingflintlo cks, “liable tomisfire” and incapable offiring mul-
tipleshots.
310
Guns thus generally were not keptor carried loaded in1791, which
in turn is reflected inthe kinds of lawson the books.Unintentional shoo tings by
children handling unlocked, loaded guns isa tragic problem today
311
but would
have been less like ly at a time when guns were not stored loaded. Conversely ,
communities in the late 1700swereconcerned with th e risk of fire from improp-
erly stored black powder,
312
which is nota significant problem today. Moreover,
fewerthan ten percent offirearmswerehandguns, currently the most common
type of gun used to commit crimes.
313
Crimes at the Founding were committed
using weapons far less leth al than modernfirearms, oreven, inthe context of
domesticviolence, with no firearms at all: “Family and household homicides—
most of which were caused by abuse or simple assaults th at got out of control—
werecommitted almost exclusivelywith weapons that wereclose at hand,” whic h
were not loaded guns but rather “whips, sticks, hoes, shovels, axes, knives, feet,
30.LEE KENNETT & JAMES L. ANDERSON, THE GUN IN AMERICA: THE ORIGINS OF A NATIONAL DI-
LEMMA 48 (1975).
30.Randolph Roth, Guns, Gun Culture, and Homicide: The Relationship Between Firearms, the Uses
of Firearms, and Int erpersonal Violence, 59 WM. & MARY Q. 223, 236 (2002).
30.Southern homicide rates were doubl e those of the two “most homicidal” Northern cities—N ew
Yor k and Philadelphia—by the 1820s. RANDOLPH ROTH, AMERICAN HOMICIDE 200 (2009). See
generally Eric M. Rub en & Saul Cornell, Firearm Regionalism and Public Carry: Placing Southern
Antebellum Case Law in Context, 125 YALE L.J.F . 121 (2015) (discussing differing regional firearm
traditions).
310.Randolph Roth, Why Guns Are and Are Not the Problem: The Relati onship Between Guns and
Homicide in American History, in A RIGHT TO BEAR ARMS? THE CONTESTED ROLE OF HISTORY
IN CONTEMPORARY DEBATES ON THE SECOND AMENDMENT 113, 117 (Jennifer Tucker, Barton C.
Hacker & M argaret Vining eds., 2019).
311.See, e.g., Jacl yn Diaz, High Gun Sales and More Time at Home Have Led to More Accidental Shoot-
ings by Kids, NAT’L PUB. RADIO (Aug. 31, 2021, 8:15 AM ET), https://
www.npr.org/2021/08/31/1032725392/guns-death-children [https://perma.cc/M2LX-2WJ8]
(citing data showing 128 de aths from March through Dece mber 2020 due to unin ten tional
dis charges by children).
312.See Joseph Bloche r, Firearm Localism, 123 YALE L.J. 82, 114-16 (2013) (describing colonial gun-
powder laws).
313.Kevi n M. Sweeney & Saul Cornell, All Guns Are Not Created Equal, CHRON. OF HIGHER EDUC.
(Jan. 28, 2013), htt ps://www.chronicle.com/article/all-guns-are-not-created- equ al [https://
per ma.cc/VY 2R -35D U] (observin g that only “[a] distinct minority of colonists” owned pistols
in the late-eighteenth century).

the yale law journal133:992023
154
or fists.”
314
Well into th e 1800s, even after pistolsbecame more common,some
still considered knives to be more dangerous.
315
Modern supportersof gun regulation have sometimes deployed arguments
from anachronism, forexample,suggestingthatonlycolonial- era weapons
shouldbe cove red by theSecond Amendment.
316
The standard gun-rights re-
sponse has been dismissive, asJustice Scaliaput it inHeller: “Some have made
the argument,borderingon the frivolous, that only those arms in existencein the
18th century are protected by the Second Amendment.”
317
Instead, he argued,
“the Second Amendmentextends, prima facie, toall instrumentsthat constitute
bearable arms,even those thatwere notin existence at the time of the found-
ing.”
318
Brueneffectively takes the sametack, adopting a definition of“arms” that
accommodates change.
319
This approach,if it is principled, and notjust an argu-
ment infavo r of expanding the category of prot ected “arms,”must be understood
morebroadly as an argumentagainstanachronism. Andthat means it mustac-
count for other formsof change,including those regarding regulation.
Today, in contrast to the Foundi ng Era, criminalgun violenceis largelyan
urban problem and is perpetuated with handguns that ar e farmore lethalthana
colonial-era musket.
320
Why wasgun violencenotan urban problemat the
Founding?One part of theexplanation is that urbanareas simply did not exist in
1791 as we understand them today. In 1790, just before the SecondAmendment
was ratified, 33,000people lived in New York City , the country’s largestcity and
314.Roth, supra not e 310, at 117 (describing the pattern of “gun use in homicides in colonial and
revolutionary America”).
315.Cockrum v. Stat e, 24 Tex . 394, 402 (1859) (“The gun or pistol may mis s its aim, and whe n
discharged, its dangerous character is lost, or diminished at least . . . . The bowie-knife differs
from these in its device and design; it is the instrument of al most certain death.”).
316.See Garner, supra note 95.
317.Di
st. of Columb ia v. Heller, 554 U.S. 570, 582 (2008).
318.Id.
319.N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2132 (2022) (“[E]ven though the Sec-
ond Amendment’s definition of ‘arms’ is fixed according to its historical und erstanding, that
general definition covers modern instruments that facilitate armed self-defense.”).
320.Military historian Trevor N. Dupuy developed the Theoretical Let
hality Index (“TLI”) “to
measure how many people a particular weapon c ould kill in one hour.” Darrell A.H. Miller &
Jennifer Tucker, Common Use, Lineage, and Lethality, 5 5 U.C. DAVIS L. REV. 2495, 2497 (2022).
The TL I for an eighteenth-century flintlock is forty- three. Id. at 2508. The TLI calculated for
cer tain World War Two-e ra handguns ranges from 228 to 297. Christopher A. Lawrence,
TLIs and Gun Control, MYSTICS & STATS. (Nov. 15, 2022), www.dupuyinstitute.org/
b
log /20 22/11/15/tlis-and-gun-control [https:// perma.cc/4L25-3329]. In the civilian context ,
vari-ous factors not considered by the TLI, like concealabili ty, also influence the modern
handgun’s lethality.

originalism-by-analogy andsecondamendmentadjudication
155
home of the First Congress.
321
The population oftheentire countrywas under four
million.
322
Today, more than twic e that many people live in New York City
alone.
323
The densification of American cities duringthe lat e 1800s is well docu-
mented,
324
as is the relationshipbetween urbanizationand crime.
325
Accordingto
one analysis, “[h]alf of America’s gun homicides in 2015 were clustered in just
127 cities and towns . . .even thoughthey contain lessthana quarter of the na-
tion’s population.”
326
Another analysis found that “in Maryland from2016-2020,
someone livingin Baltimore City was30 ti mes more likely to die by firearm than
someone living 40 miles awayin Montgomery County.”
327
Other gun-violence problems, like mass shootings and school shootings, are
also of recent vintage. In one recent case, a court relied on“evidence that there is
no known occurrence of a mass shooting resulting in double-digit fatalities from
the Nation’s founding in 1776 until 1948, with the first known mass shooting
resulting inten or more deaths occurring in 1949.”
328
At theFounding, nothing
similar occurred norcould haveoccurred; policymakers then unsurprisingly had
no reason to pass public-safety measures to address acts ofrandom mass vio-
lence.Similarly, researchers have trackeda significant increase in school
321.POP Culture: 1790, U.S. CENSUS BUREAU (Dec . 5, 2022), www.census.gov/his-
tory/www/through_the_decades/fast_facts/1790_fast_facts.html [https://perma.cc/D3QB
-7 B2H] (noting a 1790 population of 33,131 in New Y ork City).
322.See U.S. BUREAU OF THE CENSUS, A CENTURY OF POPULATION GROWTH IN THE UNITED STATES:
FROM THE FIRST CENSUS OF THE UNITED STATES TO THE TWELFTH, 1790 -1900, at 80 (1909)
(noting a 1790 resident population of 3,929,625 people in the United State s).
323.QuickFacts New York City, New York, U.S . CENSUS BUREAU, www.census.gov/quick-
facts/newyorkcitynewyork [https://perma.cc/R8X8-RW7Q] (not in g a July 2021 population
of 8,467,513 in New York City).
324.See, e.g., Eric Jaffe, Watch 210 Years of Manhattan Densification in 2 Minutes, BLOOMBERG (June
3, 2015), www.bloomberg.com/news/articles/2015-06-0 3/this-2-minute-animation -
captures-210-years-of-manhattan-density-history [https://perma.cc/8KV7-8WZE].
325.See generally LOUISE I. SHELLEY, CRIME AND MODERNIZATION: THE IMPACT OF INDUSTRIALIZA-
TION AND URBANIZATION ON CRIME (1981 ) (reviewing lit erature and data regarding crime pat-
terns).
326.Aliza Aufrichtig, Lois Beckett, Jan Diehm & Jamiles Lart ey, Want to Fix Gun Violence in Amer-
ica? Go Local, GUARDIAN (2017), www.theguardian.com/us-news/ng-interac-
tive /2017/j an/09/special-report-fixing-gun-violence-in-america [https://perma.cc/5SGW-
DMW6].
327.Ari Davis, Lisa Geller, Rose Kim, Silvia Villarreal, Alexander McC ourt, Janel Cubbage & Cas-
sandra Crifasi, A Year in Review: 2020 Gun Deaths in the U.S., JOHNS HOPKINS CTR. FOR GUN
VIOLENCE SOLUTIONS 27 (Apr. 28, 2022), publichealth.jhu.edu/sites/default/
files/2022-05/2020-gun-deaths-in-the-us-4-28-2022-b.pdf [http s://per ma.cc/VY8K-3SGY]
(cit-i ng county-level data from the U.S. Centers for Disease Control and Prevention).
3
28.Or. Firearms Fed’n, Inc . v. Brown, No. 22-CV-01815, 2022 WL 1745 4829, at *13 (D. Or. Dec.
6, 2022).

the yale law journal133:992023
156
shootings in recent years,
329
from eleven shootings a decadeago to ninety-three
shootings during the2020-2021 school year.
330
At the Founding,there wasno
comparable problem of gun violence at schools.
So, too, has law enforcement changed.In his concurring opinion inBruen,
Justice Alito noted that“[i]n1791, when the SecondAmendmentwas adopted,
there were no police departments, andmanyfamilies lived alon e on isolated
farms or onthe frontiers. If thesepeoplewere atta cked,theywereon their
own.”
331
Today, of course, police departments doexist and are taskedwith
providing public safety.
332
Alito’s point—like hisinvocation ofthe “tiny consta-
ble” inJones
333
—further highlights the dangerof buil dingconstitutionaldoc-
trine on anachronism.Judges looking tohist orical regulations for present-day
guid ance mustappreciate how the starkly differentcontext in the late 1700s in-
fluenced the shape of regu lations.
b.HistoricalRegulatory Silences,Violations,andVariations
The historical recordunderlying the historical-analogical method is not an
easily discovered, homogenous set of facts thatcan simply be compiled or aver-
aged. It is replete with silences (no historicalevidence one way or the other),
violations (historical laws that would beunconstitutionalby modern lights),and
variations (different approaches takenin different places). We consider each in
turn.
First, historicalregulator y practice will obviouslynot alwaysspeak directly
to a contemporary problem.As Justice Alitoalludedto inJones, there was no
Founding Era law with regards to GPS device s because the technologydid not
exist.
334
The same is true for innumerable constitutional questions, especially
those involving technological and socialchange.No amountof painstaking ar-
chival work willturn up historical predecessors,except at a higher level of gen-
erality, as we discuss below. The narrowness of the analogical approach debated
329.See genera lly K-1 2 SCHOOL SHOOTING DATABASE, k12ssdb.org [https://
perma.cc/T99H-BKLK] (collecting data for shootings at U.S. schools).
330.See Chantal Da Sil va, School Shootings Rose to Highest Number in 2 Decades, Federal Report
Shows, NBC NEWS (Ju ne 28, 2022, 7:40 AM EDT), www.nbcnews.com/news/us-
news/school-shootings-rose-highest-number-2-de cades- fed eral- report-shows-rcna35638
[https://perma.cc/4K2T-FBFW].
331.N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2161 (20 22) (Alito, J., concurring).
332.See Dist. of Columbia v. Heller, 554 U.S. 570, 636 (2008) (observing that, unlike at the Found-
ing, today “well-trained police forces provide personal security”).
333.See supra notes 10-15 and accompanying text (discussi ng Uni ted States v. Jones, 565 U.S . 400
(2012)).
334.Id. at 420 (2012) (Alito, J., concurring).

originalism-by-analogyand second amendment adjudication
1
57
inJones(thesearch for a “tiny constable”), as well as in manypost-Bruencases
discussed above,
335
suggests that the historical-analogical method is especially
prone to overreading historical silences.
The risk here is, in effect,falling victim to the “law of the churn”—a failure
to properly connect particulars and principles. As Justice Holmes memorably re-
lated inThePath of theLaw:
Thereis a story of a Vermont justiceof the peace before whoma suit was
brought by one farmeragainst another for breakinga churn. The justice
took timeto consider, and then said that he had looked through the stat-
utes and could find nothing about churns, and gave judgment for the
defendant.
336
Ignoringthe legalprinciples underlying, say, historical gun bansin ballrooms,
markets,or schoolswhen evaluating modern gunbans in subways,summer
camps,or day-care centersis the law of the churn at work inBruen’s frame.
337
In other cases, historical silence might reflectnot an absenceof law and prac-
tice, but the simplefact that historians have yet to uncover it, let alone on a brief-
ing schedule. As one court recentlynoted in the context of a SecondAmendment
challenge to California’s restrictions on homemade guns:
In order to even be able to assess whether or not [plaintiff]could demon-
strate a “likelihood” of prevailing on the merits . . . there is no possibility
this Court wouldexpect Defendants to be able to present the type of his-
toricalanalysis conducted inBruenon 31 days’ notice (or even 54 days’
notice).
338
Had the court required suchan analysis and treated it as final, the result almost
certainly would have beento build constitutional law on an incomplete founda-
tion.Indeed,historianshave emphasized the tension between litigation and their
professional norms. HistorianZachary M. Schrag, an expert both on methods
of historical research
339
and on mass transit,
340
was retainedby the District of
335. See supraSectionII.A.1.
336. Oliver Wendell Holmes, Jr.,The Path of theLaw, 10 HARV.L.REV. 457, 474-75 (1897).
337. SeeJosephBlocher, Jacob D. Charles & Darrell A.H. Miller, “A Map Is Not the Te rritory”: The
Theory andFuture of SensitivePlacesDoctrine, 98 N.Y.U.
L.REV.ONLINE(forthcoming 2023)
(manuscriptat 13-14), ssrn.com/abstract=4325454 [https://perma.cc/NNE4-2LGL].
338. Def. Distributed v. Bonta, No. CV 22-6200, 2022 WL 15524977, at *5 n.9 (C.D. Cal. Oct. 21,
2022),adopted, No. CV 22-6200, 2022 WL 15524983 (C.D. Cal. Oct. 24, 2022).
339. SeeZACHARYM.SCHRAG,THEPRINCETONGUIDETOHISTORICALRESEARCH(2021).
340. SeeZACHARYM.SCHRAG,THEGREATSOCIETYSUBWAY:AHISTORY OF THEWASHINGTON
METRO(2006).

the yale law journal133:992023
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58
Columbia to defendthe constitutionality of its rule againstfirearms on mass
transitlike the D.C. Metro.
341
Even withthat professionalexpertise—indeed,
because of it—Schrag entered an expert declaration effectively declining the job:
“TheDistrict has asked whether I or a teamof historians could adequately re-
searchthe ‘Nation’s historical tradition’ of firearm regulation on mass transit
within60 days. The answeris ‘no[]’ . . . .”
342
Thechallenge of discovering historical weapons regulations is especially
acute given that most regulation and enforcement was local and therefore less
likely to be preserved digitally today. Modern compilations of historical lawsare
highly incompletefor this reasonalone.
343
Bruenattempts to minimize this problem by invoking the rule of party
presentation and saying that “[c]ourts are thusentitled to decide a case basedon
the historical recordcompiled by the parties.”
344
But that simply compoundsthe
problem when the doctrinal test directscourts to a historicalrecordthat could
not possibly be complete. The issue is not a failure of the parties, but of a test
that purports to respecthistory withoutaccounting for the realities of historical
research.
A second problem is that the knownhistorical record fromwhichlawyers
and judgesmustanalogize is full of practicesand laws that would be impermis-
sible today, as wellasfailuresto regulate that we would not accept today. The
Alien and SeditionActs,to take one obvious example,were passed within a dec-
ade of the First Amendment’s ratification, but originalists dismiss them as a
guide for understandingthe meaning of the freedom of speech.
345
Similarly, it
341. SeeExhibit J to Defendants’ Opposition to Plaintiffs’ Application for Preliminary Injunction
and Motion for Summary Judgment,Declaration of Zachary Schrag at ¶ 1-4, Angelo v. Dist.
of Columbia, No. 22-CV-01878 (D.D.C. Sept. 16, 2022), ECFNo. 18-13.
342. Id.at ¶ 6.
343. See,e.g., David B. Kopel & JosephG. S. Greenlee,TheHistory of BansonTy pes of ArmsBefore
1900, 50 J.
LEGIS. (forthcoming 2024) (manuscriptat 6), ssrn.com/abstract=4393197
[https://perma.cc/XPY6-4R5Y] (chroniclinghistorical prohibitions on types of weapons in-
cluding“somelocal restrictions,” but acknowledging that the authors “have not attempted a
comprehensive survey of the thousands of local governments”);see alsoRuben & Cornell,
supranote 309, at 131 n.53 (noting evidence that “violations [of certainpublic carry re-
strictions] were enforced at the justice of peace level, but did not result in expensive appeals
that wouldhave producedsearchable case law”).
344. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2130 n.6 (2022). This is itself a bit
ironic, given thatBruenwas decidedon the pleadings and therefore did not have the benefit
of the development of historical facts at trial notwithstandingdisagreements and uncertainty
regarding the historical record.Seeid.at 2164 (Breyer, J., dissenting).
345. See,e.g.,Amy C. Barrett,OriginalismandStare Decisis, 92 NOTREDAMEL.REV. 1921, 1931
(2017) (“It is of no more consequenceat this point whether the Alien and Sedition Acts of
1798 were in accord with the original understanding of the FirstAmendmentthan it is

originalism-by-analogyand second amendment adjudication
1
59
would be impossible to even begin to canvas the ways in which law marginalized
and oppressed the majorityof peopleliving in the United States, and by doing
so limited the voices of those who mighthave shapedit. As Justice Jennifer Brun-
ner of the OhioSupreme Court recently noted in a post-Bruengun case:
[T]he glaring flaw inanyanalysis of the United States’ historical tradi-
tion of firearm regulation in relation to Ohio’s gun lawsis that no such
analysis couldaccountfor what the United States’ historical tradition of
firearmregulationwouldhavebeenif womenand nonwhite peoplehad
been able to votefor the representatives who determined these regula-
tions.
346
BlackAmerican mendid not gaina constitutional right to vote until 1870.
347
Womendid not gainthe franchise until 1920,
348
afterthe implementationof the
law struckdowninBruen, which the majoritydeemed too modernto reflect an
Americanregulatory tradition.
349
If, historically, womenand BlackAmericans
favored stricter firearmpoliciesthan white men—consistent with today’s overall
demographicpreferences
350
—then the failure to include their views when doing
theBruentest skews our history in a highly problematic, unrepresentative way
to broaden gun rights,divorced from the original public understandingof the
American people (thatis, unless one is willing to argue that the views of women
and BlackAmericansshouldnot be included inBruen’s historical-analogical
method). And yet there is no obvious way to correct the omission of over half
the voices in the country, as Justice Brunner observed:“[E]ven if a court tries to
take the views of womenand nonwhite people into account,are there sufficient
materialson their views availableto enable reliable conclusions to be made?”
351
whetherMarbury v. Madisonwas decided correctly.” (quoting ANTONINSCALIA,AMATTER OF
INTERPRETATION:FEDERALCOURTS AND THELAW138-39 (Amy Gutmanned., 1997))).
346. State v. Philpotts, 194 N.E.3d 371, 373 (Ohio 2022) (Brunner, J., dissenting) (unpublished
table decision) (emphasis added).
347. SeeU.S.CONST. amend.XV.
348. See Id.amend. XIX.
349. Bruen, 142 S. Ct. at 2122 (observing that the New York licensing scheme struck down “largely
tracks that of the early 1900s”).
350. See,e.g.,Gun ViolenceWidely Viewedas a Major—andGrowing—National Problem, PEWRSCH.
CTR. (June28, 2023),https://www.pewresearch.org/politics/2023/06/28/gun-violence-
widely-viewed-as-a-major-and-growing-national-problem [https://perma.cc/534E-LJZT]
(finding that 77% of Blackrespondents,74% of Asian respondents, and 68% of Hispanic re-
spondentssaid gun laws should be stricter, compared to only 51% of white respondents, and
that 64% of female respondentssaid gun laws shouldbe strictercompared to 51% of male
respondents).
351. Philpotts, 194 N.E.3d at 373 (Brunner, J., dissenting).

the yale law journal133:992023
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The thirdproblem is that of variation. As Akhil Amar has noted, “our com-
monConstitutionlooks slightly different from state to state and across the vari-
ous regionsof this great land.”
352
The same, of course, was true historically, es-
pecially with regard to both regional
353
and local
354
gunregulations,which
varied significantly because of differing needs and values. What would result if
eight original states did not pass a given law, but five did? What if the count is
nine and four? Whatif some of those stateschangedpositions on the issue in the
nineteenthcentury? What if some of those states changed again after the Civil
War? What if some state courts upheld the restriction but others struck it down?
What if variations existedwithin a state? And what if state-weapon traditions
were shaped by divergent state constitutional protection for the right to keep and
bear arms?
355
A narrow focus might lead to doctrine being constructedon the
basisof unrepresentative traditions—using only antebellum cases from South-
ern states as comparators, for example.
356
The complications of historical silences, violations, and variations invite a
fundamental question for judges implementingoriginalism-by-analogy: what
shouldcourtsdo about the acute risk of anachronism? After all, asBruenrecog-
nized, “the Founderscreated a Constitution—and a Second Amendment—‘in-
tended to endure for ages to come, and consequently, to be adapted to the vari-
ous crisesof humanaffairs.’”
357
The most obvious doctrinal solution is to adjust
the level of generality at which a court conducts the inquiry. And that, in turn,
raises new methodologicalchallenges.
2.Selecting a Level of Generality
How broadly a judgedefinesa principleof relevantsimilarity can alter the
risk of anachronism but can also be outcome-determinative. In other words, it
352. AKHILREEDAMAR,THELAW OF THELAND:AGRANDTOUROFOURCONSTITUTIONALREPUB-
LIC
, atxii (2015);see alsoJosephBlocher,Disuninformity of Federal ConstitutionalRights, 2020
U.
ILL.L.REV. 1479, 1485-91 (describing ways that federalconstitutionallaw is not uniform
from place to place).
353. See,e.g.,Ruben & Cornell,supranote 309, at 123-24 (arguing that gun regulations in the ante-
bellumSouthgrew out of a “distinctive culture of slavery and honor” and did not reflect a
“nationalunderstandingof the SecondAmendment’s scope”).
354. See,e.g.,Blocher,supranote312, at 85 (explaining that cities have historically regulated guns
more strictly than rural areas).
355. SeeEugeneVolokh,StateConstitutionalRightsto KeepandBearArms, 11 TEX.REV.L.&POL.
191, 193-204 (2006) (listingstateconstitutional rights to keep and bear arms by state and
year).
356. SeeRuben & Cornell,supranote 309, at 123-24.
357. N.Y. State Rifle & Pistol Ass’n v. Bruen,142 S. Ct. 2111, 2132 (2022) (quoting McCullochv.
Maryland,17 U.S. (4 Wheat) 316, 415 (1819) (emphasis omitted)).

originalism-by-analogyand second amendment adjudication
1
61
is not the historical record that will determine the result, but the level of gener-
ality at which the judgedecides to approach the issue.
358
Although it is impossi-
ble to articulatea single,overarching principle governing levels of generality in
legalreasoning,
359
understanding this dynamic will be crucial for principled ap-
plicationof originalism-by-analogy. Our goal here, then,is not to provide a test
but to illustrate the stakes, identify some common problems, and suggest some
guiding principles.
Duelingoriginalist accounts ofLovingv. Virginia
360
providean exampleof
the relationship between level of generality and case outcomes in an originalist
frame.As Peter J. Smith has shown, the dominant narrative of the opinion until
relatively recently was thatLovingis inconsistent with the original understand-
ing of the Fourteenth Amendmentbecause, at the time it was enacted, there was
a legislative tradition banning interracial marriages.
361
If the principle of relevant
similarity gleaned from historical laws is cast narrowly as whether there was pro-
tectionfor interracialmarriage, then that critique is hard to avoid. In contrast,
recentoriginalistaccountshave focused on a higher-level legislative tradition:
that governing contract rights, withmarriage being one type of contract.
362
If
the principleof relevant similarity gleaned from historicallawsis focused on
protectionof contractrights generally, not marriage contracts in particular, it is
easier to explainLovingon originalist grounds. Afterall, lawssuchas the Civil
RightsAct of 1866protected a right“to make and enforce contracts.”
363
Unarticulateddecisions about the appropriate level of generality reflect the
risk that originalism-by-analogy will not be transparent. As Sunstein notes in
his generally laudatory accountof analogical reasoning, “[i]f donepoorly, ana-
logicalthinking can deflect the eye from the specific problem and thus induce a
kindof blindness to what is really at stake.”
364
Chief JusticeRobertssimilarly
358. SeeEasterbrook,supranote293, at 358 (“Movements in the level of constitutional generality
may be used to justifyalmost any outcome.”). SeegenerallyPeter J. Smith,Originalismand
Level of Generality, 51 G
A.L.REV. 485 (2017) (providing examples of originalist attempts at
constitutional interpretation and demonstrating how selecting a level of generality plays a
pervasive, undertheorized role).
359. Scholars have investigated the issue of levels of generality for decades.See, e.g., LaurenceH.
Tribe & MichaelC. Dorf,Levels of Generalityin the Definitionof Rights, 57 U.
CHI.L.REV. 1057,
1058(1990).
360. 388 U.S. 1 (1967).
361. Smith,supranote 358, at 508-10 (describing “early accounts ofLoving[that] concludedthat it
was indefensible on originalist grounds”).
362. See,e.g., Steven G. Calabresi & Andrea Matthews,OriginalismandLoving v. Virginia, 2012
BYU
L.REV. 1393, 1420.
363. Id.at 1413-20.
364. Sunstein,supranote39 (manuscript at 23).

the yale law journal133:992023
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62
notedin a Fourth Amendment case that an “analogue test” can “launch courts
on a difficult line-drawingexpedition” to answer questions such as: “Is an e-mail
equivalentto a letter? Is a voicemail equivalent to a phone message slip?”
365
Such
a test, he added, would keep “judges guessing for years to come.”
366
Bruen’s approachto historical analogy raises the importance of operating at
a highlevel of generality. If questions are pitchedtoo narrowly, courts will run
directly into the problems of anachronism discussed above,
367
like searching for
historical regulationsof guns in subways. So, too, will they fail to account for
historicalsilences,variations, and violations, potentially building federal consti-
tutionaldoctrine on a set of unrepresentative or even reprehensible traditions.
Operating at a higher level of generality is no panacea,
368
but can help minimize
these problems. Meanwhile, the level of generality should be applied symmetri-
cally whencharacterizingrights and regulatory authority—it would be unprin-
cipled to describe the right in broad terms, and thus susceptible to support from
many historicalsources, and thendemand that historical regulations be more
specific.We address bothpoints in turn.
a.HighLevels of Generality
Decidingon an appropriate level of generality is a classic issue for tradition-
based approaches to constitutionalreasoning.
369
Some, including Justice Scalia,
have arguedfor defining historical rights and regulationsnarrowly.Bruendid
not articulate any level-of-generalitytheory, but seemed to take this narrowing
approachwhen framingthe relevant regulatory tradition, even as it defined the
rightat a high level of abstraction.
370
The followingSection addresses the prob-
lematic nature of this mismatch; here, we focus on the potential virtues of a
(symmetric) high level of abstraction.
365. Riley v. California, 573 U.S. 373, 401 (2014).
366. Id.(quotingSykes v. United States, 564 U.S. 1, 34 (2011) (Scalia, J., dissenting));seealsoRoss
v. Bernhard, 396 U.S. 531, 538 n.10 (1970) (analogizingmoderncauses of action to those that
existed at common law, in that interpreting the Seventh Amendment “requir[es] extensive
and possibly abstruse historicalinquiry” that is “difficult to apply”).
367. See infraSectionII.B.1.
368. BALKIN,supranote 183 (manuscript at 214-15) (“What distinguishes good from bad uses of
history . . . is not the level of abstraction.It is whether we acknowledge or disguise our mo-
dality of argument. Bad uses of history mislead their audiences about the kinds of justification
they actually employ.”).
369. See,e.g.,David A. Strauss,CanOriginalismBeSaved?, 92 B.U.L.REV. 1161, 1163 (2012) (“If
we are allowed to changethe level of generality at which we characterize the original under-
standings,then originalism can justify anything.”).
370. See infranotes 404-405 and accompanying text.

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The debate over levels of generality in assessing constitutionalhistory is of-
ten associated withMichaelH.v. Gerald D, which considered whethera natural
father has a constitutionally protected interest in his relationship with a child.
371
In his plurality opinion, Justice Scalia looked to history for whether suchan in-
terest existedand,in doingso, arguedfor a low level of generality (i.e.,a narrow
inquiry), writing that “[w]erefer to the most specific level at which a relevant
traditionprotecting,or denying protection to, the asserted rightcan be identi-
fied” and emphasizingthe “valueof consultingthe most specific tradition avail-
able.”
372
Under that lens, Scaliacast the asserted interest as “the [parental] rights
of an adulterous natural father,”
373
which he concludedwere not sufficiently
grounded in American tradition to warrant constitutional protection. Justice
Brennancontested Scalia’s “exclusively historical analysis”
374
and also argued
that the relevantinterest shouldhave beenframed more broadly as “that of a
parentand childin theirrelationship with each other.”
375
Brennanargued that a
broaderframe would be moreconsistent with the Court’s precedent
376
and
would also lead to the opposite conclusion: that, indeed, a natural father has a
constitutionally protected interest in his relationship with his child.
Bruen’s framing of the SecondAmendment right at issue comports more
with JusticeBrennan’s approach thanJusticeScalia’s. Had theBruenmajority
371. 491 U.S. 110 (1989).There are, of course, innumerable illustrations.CompareBowers v. Hard-
wick, 478 U.S. 186, 190 (1986) (“The issue presented is whether the Federal Constitution
confers a fundamental right upon homosexuals to engage in sodomy . . . .”),withLawrence v.
Texas, 539 U.S. 558, 567 (2003) (“To say that the issue inBowerswas simply the rightto engage
in certain sexual conductdemeans the claim the individualput forward, just as it would de-
mean a married couple were it to be said marriage is simply about the right to have sexual
intercourse.”).
372. Michael H., 491 U.S. at 127 n.6 (plurality opinion). By pointing to “the mostspecific level at
which a relevant tradition protecting,ordenying protection” couldbe identified,id.(emphasis
added), Justice Scalia also tacitly acknowledged the need for symmetry in analyzingboth the
assertedrightand asserted regulatory tradition. We discuss the importance of suchsymmetry
in more detail below.See infraSection II.B.2.b.
373. Michael H., 491 U.S. at 127 n.6 (plurality opinion).
374. Id.at 137 (Brennan,J., dissenting) (“[T]he plurality opinion’s exclusively historical analysis
portendsa significantand unfortunate departure fromour prior cases and from sound con-
stitutionaldecisionmaking.”);id.at 142 (“On the facts before us, therefore, the question is not
what ‘level of generality’ should be used to describe the relationship between Michael and
Victoria, but whether the relationship underconsideration is sufficiently substantial to qualify
as a liberty interest under our prior cases.” (citation omitted)).
375. Id.at 141-42.
376. Id.at 139-40;see also id.at 132 (O’Connor, J., concurring in part) (contendingthat Justice
Scalia’s level-of-generality analysis is a “mode of historical analysis . . . that may be somewhat
inconsistentwith our past decisions”).

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cast the Second Amendment issue at “the most specific tradition available,”
377
the case might plausibly have come out the other way. After all, the petitioners
were challenging a restrictionon their ability to carry a concealedhandgun in
public,
378
and “the mostspecific tradition available”
379
to evaluate that claim
wouldbe the historicalprohibitionof concealed carry of handguns in public,
which Scalia’s ownopinion inHellernotedwas constitutional.
380
The petition-
ers, in otherwords, wouldhave lost.Brueninsteadadopteda higherlevel of
generality, treating the case as about“the constitutional right to carry handguns
publicly for self-defense”
381
or even the rightto “armed self-defense.”
382
Thoughthere is much to criticize inBruen’s approach, there are good reasons
to operate at a high level of generality when evaluating traditions of rights and
regulations. Otherwise, originalism-by-analogy can fall prey to anachronism in
either direction: rejecting a gun-rights claim because there was no rightto carry
a semiautomatic handgun in 1791, or upholding the claim because in 1791 there
was no law specifically forbiddingit. The danger, as Cass Sunstein has noted, is
failingadequately to connecta broad historical frame to a concrete legal conclu-
sion:
[I]t is familiar to find a constitutionallawyerreading history at a very
highlevel of abstraction (“the Framers were committed to freedomof
speech”) and concluding that someconcrete outcome follows for us
(“laws regulatingobscenity are unconstitutional”). This use of history is
not honorable.
383
A high level of generality is no substitute for transparent reasoning,which is
why we have emphasized above the importanceof articulating principles of rel-
evant similarity.
384
But anarrowlevel of generality can exacerbate problems,
377. Id.at 127 n.6 (plurality opinion).
378. The Supreme Court granted certiorari “limited to the followingquestion: ‘Whether the state’s
denial of petitioners’ applications for concealed-carry licenses for self-defense violated the
SecondAmendment.” N.Y. State Rifle & Pistol Ass’n v. Corlett, 141 S. Ct. 2566, 2566 (2021).
379. Michael H., 491 U.S. at 127 n.6 (plurality opinion).
380. Dist.of Columbia v. Heller, 554 U.S. 570, 626 (2008) (“Like most rights, the right secured by
the SecondAmendment is not unlimited. . . . For example,the majority of the 19th-century
courts to considerthe question held that prohibitions on carrying concealed weapons were
lawfulunder the Second Amendment or state analogues.” (citations omitted)).
381.N.Y. State Rifle & Pistol Ass’n v. Bruen,142 S. Ct. 2111, 2122 (2022).
382. See,e.g.,id.at 2128,2132-33, 2135. Onemightargue thatBrueninvolved a textually specified
rightwhileMichaelH.did not, but of coursethese formulations are nowhere specified in the
textof the Second Amendment, which says nothingat all aboutself-defense.
383. Cass R. Sunstein,TheIdea of a Useable Past, 95 COLUM.L.REV. 601, 603 (1995).
384. See supraSection II.A.

originalism-by-analogyand second amendment adjudication
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making it impossible to draw useful analogies to historical sources. The Found-
ing generationthoughtit constitutionalto deny firearms to Native Americans,
Black Americans,and thoserefusing to take loyalty oaths.
385
At a low level of
generality, then,there is a far stronger historical record supportingthose re-
strictionsthan, say, a rule disarming domestic abusers.
386
And yet it would be
absurd to conclude thattodaythe SecondAmendment permits the government
to disarmBlack Americans and Native Americans but not domestic abusers.
Someopinions have responded by leveling down, discounting the historical laws
because they would be unconstitutional today.
387
But that, in effect,becomes a
one-way ratchet in favor of gun rightsunless it is paired with a recognition that
certainfailuresto regulate must be inverted because of racial and gender discrim-
inationin the makeup of policymakingbodies.
388
If we can rightly disregard gun
bansreflective of the Founding Era’s racism,why mustwe accept the Founding
Era’s moral blindness with regardto weapons and domestic violence?
389
These problems can be mitigated by askingwhyearlier generations disarmed
certain groups of people,rather thanaskingonlywhomthey disarmed. For ex-
ample,scholarshipand case law have examined to whatdegree the Founding
generationdisarmedpeoplethat they thought were dangerous,
390
lacked vir-
tue,
391
or were not law-abidingmembers of the political community.
392
The
question for modern controversies then becomes whether prohibited groups like
felonshave that characteristic.That is not the same as pointing directly to the
particulargroups of disarmed people—such as Black Americans, Native Ameri-
cans, and thoserefusing to take loyaltyoaths—or, for that matter, those who the
Foundersfailedto disarm, suchas perpetrators of domestic violence.
385. SeeBlocher& Carberry,supranote 56.
386. See supranotes235-242 and accompanying text (discussing United States v. Perez-Gallan,640
F. Supp. 3d 697 (W.D. Tex. 2022)).
387. See,e.g., United States v. Hicks, No. 21-CR-00060, 2023 WL 164170, at *7 (W.D. Tex. Jan. 9,
2023) (“ThisCourt is . . . skeptical of using historical laws that removed someone’s Second
Amendmentrights basedon race, class, and religionto support doing the same today. Indeed,
the Courtbelieves that ‘rejecting’ the discriminatory application of those unconstitutional
laws historically—while still arguingthose laws shouldbe a basis for the Court’s decision—
walks too fine a line.”).
388. Seesupranotes346-351 and accompanying text (discussing howthe law marginalized and
oppressed the majority of people living in the United States).
389. Siegel,supranote 54, at 2121-29 (describing the existenceof a husband’s “right of chastise-
ment” into the nineteenth century).
390. See,e.g.,Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting).
391. See,e.g., United States v. Carpio-Leon,701 F.3d 974, 979-80 (4th Cir. 2012).
392. See,e.g., United States v. Jackson, 69 F.4th 495, 503-04 (8th Cir. 2023).

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A broad level of generality can also help accommodate the diversity of his-
torical—and modern—approachesto gun regulation discussed above.Bruenre-
lied heavily on the concept of “outliers,” but without much transparency or ri-
gor.
393
The Court cast New York’s “may issue” law as an outlier with regard to
modernregulation—obscuring the fact that similar laws governed a quarter of
the U.S. population, and that as recently as the 1980smoststates had such
laws.
394
It wenton to dismiss as outliers a wide range of historical gun lawsthat,
even by the Court’s ownestimation, supported New York’s.
395
Such slicingand
dicingtotalizes a recordthat is marked by variation, and then treats the resulting,
unitary “tradition” as if it werefound rather than made. That problem becomes
worsethe more narrowly the inquiry is pitched. IfBruenwereto parse permit
requirements more finely, it might have separated them based on training re-
quirements,fee amounts,character requirements and the like, untilallof them
lookedlike “outliers” and no regulatory traditionat all remained.
Thisrisk is especially heightenedby an approach likeBruen’s that requires
identification of a “historical tradition” and treats the lack of evidence regarding
such a traditionas evidencethat analogous laws are unconstitutionaltoday.
396
The historical recordis full of examples of laws that some, but not other, juris-
dictions passed. Indeed, one characteristic of the American tradition of weapons
regulation is localand regionalvariation.
397
Thistradition of variation comports
with the Supreme Court’s acknowledgment, inMcDonald v. City of Chicago, “that
conditionsand problems differ fromlocality to locality and that citizens in dif-
ferent jurisdictionshave divergentviews on the issue of gun control.”
398
McDon-
aldwent on to explainthat the Second Amendment “limits(butby no means
eliminates)[states’] abilityto devise solutions to social problems that suit local
393. See generallyDarrell A.H.Miller & JosephBlocher,ManufacturingOutliers, 2022 SUP.CT.REV.
49, 49-50.
394. Jacob D. Charles,SecuringGun RightsbyStatute:TheRight to KeepandBearArmsOutside the
Constitution, 120 M
ICH.L.REV. 581, 596 (2022) (notingthat as recently as 1980fully one-
quarterof states outlawed concealed carry altogether, with mostof the other states operating
a “propercause” or a similar “may issue” licensingregime).
395. N.Y. State Rifle & Pistol Ass’n v. Bruen,142 S. Ct. 2111,2153 (2022) (dismissing Texas law’s
relevancewhile acknowledging“that the Texas cases supportNew York’s proper-cause re-
quirement”).
396. See supraSectionII.B.1.b (discussing historical silencesand variation).
397. SeeBlocher,supranote312, at 112; Ruben & Cornell,supranote 309, at 123.
398. 561 U.S. 742, 783 (2010);see alsoJosephBlocher,Cities,Preemption, andtheStatutorySecond
Amendment, 89 U.
CHI.L.REV.557, 574 (2022) (discussing benefitsof local regulation of fire-
arms); Richard Briffault,HomeRule andLocal Political Innovation, 22 J.L.
&POL. 1, 31 (2006)
(observingthat if “the fifty states are laboratories for public policy formation, thensurely the
3,000 counties and 15,000 municipalities provide logarithmically more opportunities for in-
novation, experimentation and reform”).

originalism-by-analogyand second amendment adjudication
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needs and values.”
399
“[S]tate and localexperimentation withreasonable fire-
arms regulations,” the Court continued, “will continue under the Second
Amendment.”
400
Indeed,at oral argument inBruen, JusticeThomasseemedto
acknowledge suchlocal-level tailoring:“It’s one thing to talk about Manhattan
or NYU’s campus.It’s another to talk about rural upstate New York.”
401
A high
level of abstractioncan helpBruen’s historical-analogical test preserve that kind
of sensible (and traditional) variation.
b.Symmetric Levels of Generality
Whatever principles a courtselects, the level of generality selected for histor-
ical analogy shouldbe applied symmetrically.
402
In other words, courts should
not apply a broad and forgiving principleto characterize a regulatory tradition
while applyinga narrow and rigidcharacterization of a gun-rights claim, nor
vice versa.Anythingelse distorts the holistic historical record and risks confir-
mation bias,“twist[ing]evidenceto fit [one’s] preferred narrative,” which his-
toricalmethods—and originalism itself—purportedly avoid.
403
At minimum,
courts shouldnot apply a different historicalframe for rights and regulations
absent clearguidance that such a counterintuitive way to read history is required
by the Second Amendment.
Bruenitselfdemonstrates the shortcomings of suchasymmetrical historical
analysis.The majority is quick to conclude that the Second Amendment extends
to modernweaponsthat were unknownto the Framers:“We have already rec-
ognized inHellerat least one way in which the SecondAmendment’s historically
fixed meaning applies to new circumstances: Its reference to ‘arms’ does not ap-
ply ‘only [to]those arms in existence in the 18th century.’”
404
Thisis because
“even though the SecondAmendment’s definition
of ‘arms’ is fixed accordingto
its historicalunderstanding, that general definition covers modern instruments
that facilitate armedself-defense.”
405
When it comes to categories of arms covered by the Second Amendment,
then, it appearsthat the principleof relevant similarity is whether the instrument
399. McDonald, 561 U.S. at 785.
400. Id.(citation and internal quotation marks omitted).
401. Transcriptof Oral Argument,supranote 148, at 60.
402. For an explanation of the initialbalanceof rights and regulations and a theory for how they
should evolve, see Darrell A.H.Miller,SecondAmendmentEquilibria, 116 N
W.U.L.REV. 239,
259-63 (2021).
403. SCHRAG,supranote 339, at 25 (discussing historians’ ethics).
404.N.Y. State Rifle & Pistol Ass’n v. Bruen,142 S. Ct. 2111, 2132 (2022) (citations omitted).
405. Id.

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“facilitate[s] armed self-defense.”
406
The Court expressly used its interpretation
of “arms” at a highlevel of generality as an example of how to construe historical
statutesfor the purpose of historical-analogical reasoning.
407
But the majority
thenapplieda far less generous principle to evaluate modern gun laws in com-
parisonto theirhistorical counterparts. The symmetric principle of similarity
should be that the Second Amendment allows modern gun laws that facilitate
public safety.
408
And that metric would lead to a very different analysis than the
stringenthistorical one that the Court ended up applying.
While applying a symmetric level of generalityon both sidesof the analysis
is the bareminimumof principled,historically based decision-making, it does
not answer the underlying questionof whether the level should be broad or nar-
row. As we note above, society has experienced profound changes with respect
to weapons.
409
It would be nonsensicalto ask in a SecondAmendment challenge
to a restriction on a specific,moderngun model whether there is historical pro-
tectionfor that precise model. There are thus good reasons to analogize at a
higher level of abstraction. But that breadth must be symmetric—the regulatory
side of the analysis should be subject to the same level of generality.
C.Institutional Limitations
The final challenge for originalism-by-analogy is staying within the judici-
ary’s institutional competence. Constitutional doctrine should not direct judges
down paths that render decision-makinginscrutable, invite raw discretion, or
require tasksthat the judiciary is institutionally ill-suited to perform.
410
Analog-
ical reasoningis bread and butter for jurists.ButBruen’s approachto historical-
analogicalreasoningcan lead judgesto draw unsupported inferences, mistaking
lack of historicalevidence for evidence of lacking history and also discounting
406. Id.
407. Id.(“Much like we use history to determine which modern ‘arms’ are protected by the Second
Amendment, so too doeshistory guide our consideration of modern regulations that were
unimaginable at the founding.”).
408. See,e.g., Nat’l Rifle Ass’n v. Bondi, 61 F.4th 1317, 1326 (11th Cir. 2023) (“As for the ‘why’ of
those historical regulations,it is also ‘relevantly similar’ to the ‘why’ of the Marjory Stoneman
DouglasHigh School Public Safety Act. Both ‘regulations burden a law-abidingcitizen’s right
to armedself-defense’ for the same reason: enhancing publicsafety.” (quotingBruen, 142 S.
Ct. at 2132-33)).
409. See supraSectionII.B.1.
410. Cf.MichaelW. McConnell,InstitutionsandInterpretation:A CritiqueofCity of Boerne v. Flores,
111 H
ARV.L.REV. 153, 155 (1997) (“When translatingconstitutional text into judicially en-
forceable doctrine, a responsible court necessarily takes into consideration not only the mean-
ing of the constitutional provisionat issue, but also the institutional implications of the doc-
trine for the allocation of power between the courts and the representative branches.”).

originalism-by-analogyand second amendment adjudication
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the need forcontemporaryempiricalevidence and legislative deference in orderto
conductthe kind of comparisonsBruenmandates.
1.Judicial Resources
An approachfocused exclusively on historical analogy transformsthe way
litigation operates, requiring more resources than conventionalconstitutional
argumentation.
411
Judgeshave acknowledged thatthey “willinevitably miss
some” historical precedents because “[t]he briefs filed [are] able to address only
so many before runningup againstwordlimits.”
412
If historical analogy is the
sole determinant of constitutionality, running out of space to documenthistori-
cal precedents can be the difference between winning or losing a case. This is
especially true when courts rely on party presentation of historical analogues
413
and considerthequantityof analoguesto be probative.
414
InAntonyuk II, New
York requested an additional seventy pages to respond to a motionfor a prelim-
inary injunction.
415
Even still,the courtendeavored to find historical laws not
included in the briefing.
416
New York State might have the resources to conduct
suchextensive—but still incomplete—motion practice; most municipalities de-
fendinglocal gun lawswill not. At the same time, the burden on judges tasked
withparsinga voluminoushistorical record and rendering it relatable to modern
411. For an analysis of how originalism and the usual rulesof fact-finding intersect,see generally
Blocher& Garrett,supranote209.
412. Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1155 n.6 (9th Cir. 2014),rev’d onreh’g enbanc, 824
F.3d 919 (9th Cir. 2016).
413. See,e.g., N.Y. State Rifle & Pistol Ass’n v. Bruen,142 S. Ct. 2111, 2130 n.6 (2022) (“Courts are
thus entitledto decide a case based on the historical record compiled by the parties.”).
414. See,e.g., Firearms Pol’y Coal, Inc. v. McCraw, 623 F. Supp. 3d 740, 756 (N.D. Tex. 2022)
(“[T]hehistorical record before the Courtestablishes (at most) that between 1856 and 1892,
approximately twenty jurisdictions (of the then 45 states) enacted laws that restricted the abil-
ity of those under 21 to ‘purchase or use firearms.’”);AntonyukII, 635 F. Supp. 3d at 132
(“[T]he Court generally has looked to instances where there have been three or more such
historical analogues . . . .”).
415. SeeConsentLetter Motion,Antonyuk II, 635 F. Supp. 3d 111 (N.D.N.Y. Oct. 12, 2022) (No. 22-
CV-00986),ECF No. 37 (requesting leave to file excess pages); Text Order,AntonyukII, 635
F. Supp. 3d 111 (N.D.N.Y. Oct. 12, 2022) (No. 22-CV-00986), ECF No. 38 (granting motion
for additional pages).InMiller v. Bonta, a case concerningCalifornia’s ban on assault weapons,
the districtjudgeasked the parties to compile a spreadsheetof relevant weapons policies from
the timeof the SecondAmendment’s enactment until twenty years after the Fourteenth
Amendment’s enactment.California’s list was fifty-six pages long and contained 191 laws,
statutes, or regulations.Exhibit1 to Declaration of John D. Echeverria, Defendants’ Survey of
RelevantStatutes (Pre-Founding-1888),Miller v. Bonta, No. 19-cv-01537 (S.D. Cal. Jan. 11,
2023), ECFNo. 163-1.
416. See AntonyukIII, 639 F. Supp. 3d at 296-97 & n.72 (describing the court’s research process).

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timeswill be significant and difficult; judges have even considered hiring histo-
riansto assist in the exercise.
417
A similar institutional challenge has been discussed in the long-runningin-
terpretive debatesover originalism, but it is especially accentuated with a histor-
ical-analogical test that requiresnot only identification of past practices and
meanings, but also the further step of drawing relevant similarities from those
historicalsources to modernones. Courtsfaced withtasksthey are ill-suited to
do often consider whether it is appropriate to defer to coequal branches of gov-
ernment. Yet,Bruencritiqued lower-court caselaw as being too deferential to
legislatures and too responsive to modern-day realities.
418
As a result, some
courtshave readBruenas prohibiting consideration of empirics or deference to
the legislature. But both empirics and deference remain relevant afterBruen, and
they couldmitigate the institutionalchallengespresented by the historical-ana-
logicalapproach.
2.EmpiricsandDeference
DespiteBruen’s suggestion that its approach is purely historical, its test re-
quires contemporary evidence to play a key role. Quite simply, there is no way
to compare the “why” and “how”of modern and historical gun laws without
evidence.History alonecannotshowthe “burden” that modern gun laws place
on “armedself-defense,” nor why such laws are “justified.”
419
Doing so requires
modernempiricsto demonstrate, for example, how often particular weapons are
usedfor self-defenseor in crimes,or what harms a particular law prevents.
420
417. See,e.g.,Baird v. Bonta, No. 19-CV-00617, 2022 WL 17542432, at *9 (E.D. Cal. Dec. 8, 2022),
rev’d and remanded, Baird v. Bonta, No. 23-15016, 2023 WL 5763345 (9th Cir. Sept.7, 2023);
United States v. Bullock, No. 18-CR-165, 2022 WL 16649175, at 1, 3 (S.D. Miss. Oct. 27,
2022).
418. Bruen, 142 S. Ct. at 2131.
419. See supraSection I.A.3 (discussingBruen’s primary metricsof “how” and “why” gun regula-
tions limit armedself-defense).
420. See,e.g., Campitiv. Garland, No. 22-CV-177, 2023 WL 143173, at *3 (D. Conn.Jan. 10, 2023)
(observingthe historical tradition of “prohibit[ing] dangerouspeople from possessing guns”
(quoting Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting));id.at *4
(concludingthat “the availabledata reflectsthat ‘someone with a felony conviction on his
record is more likely than a nonfelon to engage in illegal and violent gun use’” and thus the
federal felon-in-possession law is consistent with historical tradition (citationomitted));
United States v. Goins,No. 22-CR-0091, 2022 WL 17836677, at *12 (E.D. Ky. Dec.21, 2022)
(“There is little reasonto doubt that Congress could have deemed Mr. Goinsto representa
threat to public safety, consistent withthe SecondAmendment’s history and tradition.”);id.
at *13 (discussing the empirical connectionbetween DUI convictions, drugpossession, and
public safety).

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Althoughit is somewhat opaque on this point, the Court seemed to take this
presentist approachwhen it emphasized the stringency of New York’s law and
the supposedcommonalityof armedself-defense. The majority highlighted the
relative strictness of proper-cause requirements, concluding that requiring a
“specialneed”to carry a handgun is a “demanding”standard.
421
Justice Alito
blendedpresent and future in writing,“To day, unfortunately, manyAmericans
have good reason to fear that theywillbevictimized if they are unable to protect
themselves.”
422
In theseways,at least—all of which worked in favor of broaden-
ing gun rights—the Justices were willingto consider contemporary evidence and
even predictions aboutthe future.
As the dissent pointed out, there was actually no record evidence regarding
the operation of New York’s statute—what percentage of permit applications
were rejected, for example—making it hard to evaluate the statute’s contempo-
rary burdenson armed self-defense.
423
In future cases that do include a record,
those defending gun lawswill presumably want to include evidence showing
that challengedlawsstill allow armed self-defense. If, for example,a prohibition
on one particular class of weaponsleaves open a range of adequate alternatives,
then the burden on armed self-defense is lessened and perhapsnegligible.
424
421. Bruen, 142 S. Ct. at 2123.
422. Id.at 2161(Alito, J., concurring)(emphasis added). Specifically, Justice Alitocites a brief to
the effectthat “[a]ccording to survey data, defensive firearm use occurs up to 2.5 million times
per year.”Id.at 2159.It is worthnoting that empiricists studying more recent data have con-
cludedthat the 2.5 million estimate, which is derived from Gary Kleck& Marc Gertz,Armed
Resistanceto Crime: The Prevalence andNature of Self-Defense witha Gun, 86 J.
CRIM.L.&CRIM-
INOLOGY
150, 184 tbl.2 (1995),“shouldbe viewed with considerable skepticism.” Philip J.
Cook,The Great AmericanGunWar: NotesfromFourDecades in the Tr enches, 42 C
RIME&JUST.
19, 37, 42-44 (2013). Empiricalefforts to identify the prevalenceof defensive gun uses vary by
orders of magnitude.See, e.g.,B
UREAU OFJUST.STAT.,U.S.DEP’T OFJUST.,GUNSANDCRIME:
HANDGUNVICTIMIZATION,FIREARMSELF-DEFENSE,ANDFIREARMTHEFT, NCJ-147004, at 1-2
(1994)(estimating approximately 80,000defensive usesbased on the NationalCrime Vic-
timization Survey).
423. Bruen, 142 S. Ct. at 2164(Breyer, J., dissenting)(“[T]he Court decides this case on the basis
of the pleadings,withoutthe benefit of discovery or an evidentiary record. As a result, it may
well rest its decisionon a mistaken understanding of howNew York’s law operates in prac-
tice.”).
424. SeeFriedman v. City of Highland Park, 784 F.3d 406, 411 (7th Cir. 2015) (pointing out that if
HighlandPark’s ordinancebanning assault rifles left viable legal alternatives open to crimi-
nals, then it similarly left viable legal alternatives opento those seeking to carry in self-de-
fense);Ruben,supranote94, at 208 (“In a gun-centric world in which the only ‘arm’ is a
firearm,firearmsrestrictionsintuitively cut deeper into the right to keep and bear arms than
in a worldwhere there are myriad alternatives.”).See generallyJoseph Blocher& Darrel A.H.
Miller,Lethality, PublicCarry, and AdequateAlternatives, 53 H
ARV.J.ONLEGIS.279(2016)(con-
sideringthe potentialSecond Amendmentsignificanceof advancing nonlethal weapons tech-
nology).

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The majority’s flexibility in accepting arguments about the high burden of
the modernregulation, however, was in stark contrast to its willingness to min-
imize the burdensimposed by historical regulations. For example, the Court dis-
counted the evidentiary value of an early Massachusetts law copied by states
across the country that provided that anyonewho carried publicly without “rea-
sonablecause” could be required to posta surety under specified circum-
stances.
425
The majority heldthat the law—despiteserving as an explicit exam-
ple of states limiting public carry to those with cause—was not relevant in
evaluating the constitutionality of New York’s public-carry law becausethe bur-
den of a surety requirement was dissimilar to that imposed by New York’s permit
requirement.
426
In the samevein,the Court declined to give weight to historical
lawsthat it concluded were underenforced
427
or only prohibited the use of arms
to “terrorizeothers.”
428
Thecontinuingrelevanceof empiricsinvitesa questionabout howmuch
deference judges should give to legislative determinations. Though theBruen
majority critiqued legislative deference within the tiered-scrutiny framework,
429
deference shouldnot be off the table afterBruen, if it is part of the historical
traditionof weaponsrightsand regulation.
430
Here, too, a principleof symmetry
shouldapply—thistime,between the deference courtsgive to historical and
modern legislativedeterminations.
In her dissentingopinioninKanter v. Barr, for example, then-Judge Barrett
concludedthat “[i]n 1791—and for well more than a century afterward—legisla-
turesdisqualified categories of peoplefrom the right to bear arms only whenthey
judgedthat doingso was necessary to protectthe public safety.”
431
In this telling,
it was the legislature that was “judg[ing]”the threat to public safety presented
by a category of people.If the principleof relevant similarity at issue in
425. Bruen, 142 S. Ct. at 2148-50;see1836Mass. Acts750 (“If any person shallgo armedwitha
dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable
causeto fear an assaultor other injury, or violence to his person, or to his family or property,
he may, on complaintof any person havingreasonable cause to fear an injury, or breach of the
peace, be required to find sureties for keepingthe peace . . . .”).
426. Bruen, 142 S. Ct. at 2148-49.
427. Id.at 2149.
428. Id.at 2150.
429. Id.at 2131 (critiquing how courts defer to legislative determinations when faced withdifficult
empirical decisionsunder intermediate scrutiny).
430. Id.(stating the need to adhere to the “balance . . . struckby the traditions of the American
people” when implementing the Second Amendment).
431. Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting) (emphasis added);see
also id.at 458 (“In sum,founding-era legislatures categorically disarmedgroupswhomthey
judgedto be a threat to the public safety.”) (emphasis added).

originalism-by-analogy andsecondamendmentadjudication
173
categorical prohibition cases is that thelegislature canbar those “they judge[]”
to be dangerous from gun possession,
432
and their historical determinations
were overinclusive andwould ha ve received deference from the judiciary, mod-
ern-daylegislatures arguably shou ld begranted similar leeway, subject to other
constitutional limitations.
In this regard, the longstanding debateregarding the scope of police power
and judicial power at the Founding is relevant.In his reviewof opinionsexercis-
ing judicial revie w between the FoundingandMarbury v. Madison, forexample,
WilliamTreanor foundthat courts deferred outside limi ted circumstancesin
which legislators“overstepp[ed] their bounds withrespect to the power of other
gove rnmental entities.”
433
Treanor concluded that“[j]udicial reviewthus was
not about protecting individual rights”at the time.
434
Others have similarly
highlighted the broad scope of police powers in early American history
435
or the
limited roleof judicial review.
436
Our goal here is notto provide a broadaccount ofthe historical relationship
between police power andjudicial review
437
but to make a more modest point:
Brueninstructed courts to heed historical regulatory traditions in Second
Amendment cases, and legislative deference may very well be an important part
of that tradition.
432.Id. at 458.
433.William M. Treanor, Judicial Review Before Marbury, 58 STAN. L. REV. 455, 557 (2005).
434.Id.
435.See, e.g., Saul A. Cornell, The Police Power and the Authority to Regulate Firearms in Early Amer-
ica, BRENNAN CTR. FOR JUST. (June 29, 2021), www.brennancenter.org/our-work/
research-reports/police-power-and-authority-regulate-firearms-early-america
[https://perma.cc/45NL-ZKPB].
436.Se
e, e.g., Larry D. Kramer, Judicial Supremacy and the End of Judicial Restraint, 100 CALIF. L.
REV. 621, 621-23 (2012); Campbell, supra note 188, at 34; William Baude , Opinion, Of Course
the Supreme Court Needs to Use History. The Question Is How., WASH. POST (Aug. 8, 2022, 9:27
AM EDT), www.washingtonpost.com/opinions/2022/08/08/supreme-court-use-
history-dobbs-bruen [https://perm a.cc/752Y-RJFR] (“[I]n Bruen, the court refused to allow
any kind of ‘interest balancing’ of gun rights against public safety. But deeper historical re-
search might support such balancing after all. At the Founding and during Reconstruction,
many constitutional rights were subject to regulation in the name of the publ ic good. Such
arguments could support mor e reg ulation of Second Amendment rights than the court sug-
gests.”).
437.S
ee, e.g., Steven G. Calabresi, Originalism and James Bradley Thayer, 113 NW. U. L. REV. 1419
(2019) (disputing Thayer’s influential 1893 account of Supreme Court judicial review and
Thayer’s related argument for a rule of clear mistake in separation-of-powers cases).

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conclusion
Will originalism-by-analogy provide a stable, coherent, and predictable ju-
risprudence?Initial efforts to applyBruengive reasonfor doubt.Originalism-
by-analogy has opened the door to tremendouschallenges, reflected in divergent
methodologies and outcomes. Bringing discipline to the increasingly erratic and
unprincipled body of law that is emerging afterBruenshould be a primary goal
of appellate courts, and especially the Supreme Court, which has an opportunity
to providemuch-needed guidance inRahimiduringthe 2023-2024 Term.
This Article identifiessome initial steps in that direction. At minimum,
courtsmust articulate principlesof relevantsimilarity to compare historical and
modernlaws. Because immense differences between past and present complicate
that task, such principles ought to be cast at a high level of generality in order to
avoid anachronism.At the same time, and contrary to commonassumptions
aboutpost-Bruenlaw, courtswill not be able to avoid questionsabout modern
empiricsand legislative deference.
Redressing the doctrinal problems discussed in this Article will require more
than identifying principles of relevant similarity, avoidinganachronism,and ad-
dressing institutionallimitations. Given the upheaval spawnedbyBruen, courts
and scholars will likely be busy for years to come before the consequences of the
Court’s noveldoctrinalapproach to the Second Amendment casescomes into
focus.