THE DEAD HAND OF A SILENT PAST:
BRUEN, GUN RIGHTS, AND THE SHACKLES
OF HISTORY
JACOB D. CHARLES†
A
BSTRACT
In June 2022, the Supreme Court struck down New York’s
concealed carry licensing law on Second Amendment grounds. In that
decision, New York State Rifle & Pistol Association v. Bruen, the
Court declared that future Second Amendment challenges should be
evaluated solely with reference to text, history, and tradition. By
requiring historical precedent for any modern regulation, that test is
essentially sui generis in the Court’s individual-rights jurisprudence.
Yet it represents both an extension of an increasingly historically
focused Supreme Court case law and a harbinger of potential doctrinal
transformations in other domains.
This Article critically assesses Bruen’s test and, in the process, raises
concerns about other areas of rights jurisprudence trending in ever
more historically inflected directions. In critiquing Bruen’s method, the
Article foregrounds the unsatisfying justifications for the novel test and
several unworkable features. Centrally, it underscores how Bruen’s
emphasis on historical silence imbues an absent past with more
explanatory power than it can bear—or than the Court attempts to
justify. The Article then synthesizes and analyzes the results from more
than three hundred lower federal court decisions applying Bruen,
which collectively reveal the test’s fundamental unworkability.
On top of that descriptive and critical work, the Article makes
several prescriptive arguments about possible judicial and legislative
responses to the decision. For judges, the Article endorses and amplifies
arguments about the use of neutral historical experts appointed by
Copyright © 2023 Jacob D. Charles.
† Associate Professor of Law, Pepperdine University Caruso School of Law; Affiliated
Scholar, Duke Center for Firearms Law, Duke University School of Law. I am grateful to Joseph
Blocher, Brannon Denning, David Han, Mary Hoopes, Joel Johnson, Darrell Miller, Julian
Mortenson, Bob Pushaw, Eric Ruben, Eric Segall, Larry Solum, Aaron Tang, Andrew Willinger,
and Adam Winkler for feedback that improved this Article. Ellie Ritter provided invaluable
research assistance.
courts, identifies ways that lower courts can usefully underline Bruen’s
gaps and mitigate its open texture, and suggests that courts are justified
in reading Bruen narrowly. For lawmakers, it argues that when
legislatures pass new gun laws, they ought to be explicit about four
types of evidence for the law’s constitutionality that track Bruen’s new
demands: the purpose for the law, the expected burden on armed self-
defense, the precise nature of the problem to which the law is directed,
and the historical tradition from which the law springs.
TABLE OF CONTENTS
Introduction .............................................................................................. 68
I. Bruen’s New Method ........................................................................... 80
A. Heller, McDonald, and the Emerging Two-Part
Framework .............................................................................. 81
B. Bruen’s Replacement: The History-and-Analogy Test ..... 87
II. Bruen’s Blindspots ............................................................................. 95
A. Specification of the Test ........................................................ 95
1. Step One Puzzles ................................................................ 95
2. Step Two Gaps .................................................................... 99
B. Silence in the Past ................................................................ 110
1. The Absence of Evidence ................................................. 111
2. Textual Indeterminacy ...................................................... 116
III. Bruen in the Lower Courts ............................................................ 122
A. The Big Picture ..................................................................... 122
B. A Closer Look ...................................................................... 128
1. The Plain-Text Prong ....................................................... 132
2. The Historical-Tradition Prong ...................................... 137
IV. Responding to Bruen & Beyond .................................................... 145
A. Judicial ................................................................................... 146
B. Legislative ............................................................................. 150
Conclusion ............................................................................................... 153
I
NTRODUCTION
In June 2022, the Supreme Court issued its first Second
Amendment decision in more than a decade. The Court’s ruling in New
York State Rifle & Pistol Association v. Bruen
1
invalidated a New York
statute that restricted licenses to carry a concealed handgun to those
who could show a special need for self-defense.
2
Legal scholars and
historians have begun assessing how the Court’s use of historical
sources squares with the complex historical tradition governing public
carry of firearms.
3
Yet Bruen’s significance far outstrips its singular
conclusion about public carry. The decision also mandated that lower
courts abandon conventional tiers-of-scrutiny analysis in Second
Amendment cases and instead review claims based solely on text,
history, and tradition.
4
Thus, said the Court, if a challenger’s activity
falls within the “plain text” of the Second Amendment, then the claim
prevails unless the government can “justify its regulation by
demonstrating that it is consistent with the Nation’s historical tradition
of firearm regulation.”
5
Demanding past regulatory precedent to
support modern laws sets this test apart from other constitutional-
rights contexts that employ historical inquiry.
6
Bruen’s historical mandate accepts that the litigation process will
not produce a full picture of the past.
7
Yet, rather than urge caution
about these limitations, Bruen sweeps aside longstanding concerns
about “law-office history” with little more than a footnote.
8
In fact,
given the speed of litigation, incentives of litigants, and ethical duties
of lawyers,
9
the decision may practically guarantee Ctrl+F history—
cursory keyword searching to wring easy answers from complex
historical sources.
10
But those limits of historical inquiry in fast-paced
litigation are not the only worries Bruen’s test generates.
Even more problematic, the decision places outsized importance
on missing historical records. Under Bruen’s rule, the government
cannot successfully defend a contemporary law implicating the Second
Amendment unless it finds analogous laws enacted at the relevant time
in American history.
11
This test means that the dead hands of the past
bind not just through their actions but through their omissions.
12
If the
nation’s Founding generations declined to act, without regard to the
grounds or reasons for their inaction, then contemporary lawmakers
are shackled.
13
A Fifth Circuit decision applying Bruen exposed what
this logic entails: no Founding-era laws, it found, are similar to modern
laws that disarm people subject to domestic-violence restraining
statements of law, or even the interpretive process, lest they undermine the federal courts’ role to
independently ascertain the meaning of legal texts for the benefit of all”).
10. As District Judge Trauger explained in United States v. Kelly,
Attempting to reconstruct past constitutional understandings through a litigation-
driven process of keyword searches seems to rely on the assumption that the past was
little more than a differently-dressed version of the present, ripe for easy one-to-one
comparisons without regard for deep changes in political structure, unspoken
institutional arrangements, or language. As far as the court can tell, that is not what
actual historians, as opposed to litigants and litigators, believe.
No. 3:22-CR-00037, 2022 WL 17336578, at *4 n.6 (M.D. Tenn. Nov. 16, 2022).
11. Bruen, 142 S. Ct. at 2126.
12. The dead-hand problem has deviled constitutional theorists for decades, but its
application in this context is all the more troublesome because of the strength with which Bruen
imbues historical silences. See infra Part II.B. For discussion of the voluminous literature on the
dead-hand problem, see, for example, Michael W. McConnell, Textualism and the Dead Hand of
the Past, 66 G
EO. WASH. L. REV. 1127, 1127 (1997) (“The first question any advocate of
constitutionalism must answer is why Americans of today should be bound by the decisions of
people some 212 years ago.”); Marc O. DeGirolami, Traditionalism Rising, J.
CONTEMP. L.
ISSUES (forthcoming) (manuscript at 32) [hereinafter, DeGirolami, Traditionalism Rising],
papers.ssrn.com/abstract=4205351 [https://perma.cc/BF9N-BW7Z] (acknowledging that
“[i]n constitutional law, the question of tradition’s justification is related to the broader so-called
‘Dead Hand’ problem”).
13. See United States v. Rahimi, 61 F.4th 443, 461 (5th Cir. 2023) (stating that while
disarming domestic abusers may serve important government interests, “Bruen forecloses any
such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on
the Second Amendment right”), cert. granted, 143 S. Ct. 2688 (2023); cf. Leah M. Litman,
Debunking Antinovelty, 66 D
UKE L.J. 1407, 1412–13 (2017) (arguing that “legislative novelty is
not evidence and should not be used as evidence that a statute is unconstitutional on federalism
or separation-of-powers grounds” but stating that issues of individual rights require separate
treatment).
orders, so the federal law doing so violates the Second Amendment.
14
For good reason, almost no other area of individual-rights adjudication
works this way.
15
In agreeing to review the Fifth Circuit’s ruling just a
year after it decided Bruen, the Supreme Court will have an
opportunity to refine some of the ambiguities that have led to these
types of rulings.
16
There is something especially dissonant about Bruen’s novel
method given the Justices’ prior statements about the Second
Amendment right. In 2010, in McDonald v. City of Chicago,
17
Justice
Alito announced that the Court would not treat the Second
Amendment “as a second-class right, subject to an entirely different
body of rules than the other Bill of Rights guarantees.”
18
This
statement came to be used as a demand that courts treat the Second
Amendment as favorably as other fundamental rights, like the First
Amendment’s free-speech guarantee.
19
The demand was clear:
legislatures, litigants, and lower courts should stop treating the Second
Amendment differently than they treat other enumerated rights. And
yet, rather than vindicating that vision, Bruen itself now subjects
Second Amendment claims to an entirely different set of rules.
20
As
Professor Khiara Bridges rightfully notes, “It is not an exaggeration to
describe this standard as creating a super-right.”
21
Despite this change
from its previous commitment to equal treatment, the Bruen Court did
not explain why a different test should govern Second Amendment
claims.
The Court’s new approach is also inconsistent with the way the
Court has invoked history and tradition in other recent cases.
22
The day
after it decided Bruen, the Supreme Court overturned Roe v. Wade’s
23
protection for reproductive autonomy.
24
Justice Alito’s opinion for the
Court in Dobbs v. Jackson Women’s Health Organization
25
praised the
ability of contemporary Americans to enact their policy preferences
through the democratic process.
26
For more than a century and a half
after the Constitution’s ratification, Alito observed, “each State was
permitted to address this issue in accordance with the views of its
citizens.”
27
But Roe extinguished that authority, “confer[ring] a broad
right”
28
that “abruptly ended th[e] political process” of popular
dialogue over abortion laws.
29
Roe, Alito thrice repeated, was an
exercise of “raw judicial power.”
30
Juxtaposing the method in Dobbs
and Bruen is jarring.
Although Bruen dealt with a textually enumerated right “to keep
and bear arms,”
31
whereas Dobbs dealt with the right to “due process
of law,”
32
both decisions reasoned historically to ascertain whether the
Constitution protected the claimant’s right against the challenged
regulation. One case searched the past for protections for a claimed
right and declared that record barren.
33
The other searched the past for
restrictions on a claimed right and declared that record barren.
34
For
Dobbs, it was clear the absence of historical regulations prohibiting
particular conduct did “not mean that anyone thought the States
lacked the authority to do so.”
35
Even if some “abortion was
permissible at common law,” Alito emphasized, that certainly did not
entail “that abortion was a legal right.”
36
For Bruen, on the other hand,
the opposite inference governed. If gun-related conduct was permitted
in early American society, it was a legal right.
37
Like a prescriptive
easement over the state’s regulatory authority, permitted conduct of
yesteryear morphs into unassailably protected conduct today. In their
oscillating methods, “Bruen reiterates the lesson that Dobbs teaches:
the Court’s historical investigation is not the value-free, apolitical
exercise that the Court pretends it to be.”
38
Bruen and Dobbs are not alone in privileging historical material.
The current Court increasingly makes history and tradition the
touchstone of constitutional review.
39
And, because the Second
Amendment lacks the jurisprudential “baggage”
40
of other
constitutional rights (that is, accumulated precedent), the Justices have
found it easier to redirect the law, undiluted by more pragmatic
considerations.
41
Attending to the Second Amendment example can
thus help shed light on possible upcoming moves in other areas of
rights adjudication, such as free speech, establishment clause, and free
exercise claims.
42
These lessons are urgent at a time when the fetters of
stare decisis seem to be growing especially brittle.
43
Transparency] (arguing that the “multiplicity of historical narratives vividly illustrates the
openness of pure historical analysis and the extent to which value judgments drive such
analyses”).
39. See, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2428 (2022) (insisting that,
despite discarding a prior doctrinal test, “[a]n analysis focused on original meaning and history
. . . has long represented the rule rather than some ‘exception’ within the ‘Court’s Establishment
Clause jurisprudence’” (citation omitted)); Randy E. Barnett & Lawrence B. Solum, Originalism
After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 N
W. U. L. REV.
(forthcoming 2023) (manuscript at 27–37), papers.ssrn.com/abstract=4338811
[https://perma.cc/H884-6GJG] (discussing the Court’s use of history and tradition within the Bruen
decision); DeGirolami, Traditionalism Rising, supra note 12, at 2–3 (noting that “[c]onstitutional
traditionalism is rising”); Sherif Girgis, Living Traditionalism, 98 N.Y.U.
L. REV. (forthcoming
2023) (manuscript at 2–3), papers.ssrn.com/abstract=4366019 [https://perma.cc/3JVC-
99N6] (discussing the Court’s recent commitment to originalism); Erwin Chemerinsky & Barry
P. McDonald, Eviscerating A Healthy Church-State Separation, 96 W
ASH. U. L. REV. 1009, 1012
(2019) (describing how the conservative Supreme Court Justices “frequently emphasize the
importance of” evidence about “early historical understandings” in constitutional cases).
40. Transcript of Oral Argument at 44, District of Columbia v. Heller, 554 U.S. 570 (2008)
(No. 07-290).
41. See Charles, Constructing a Constitutional Right, supra note 19, at 334–35 (describing
how courts after Heller grasped at other doctrine because they had few other places to turn);
Richard H. Fallon, Jr., Selective Originalism and Judicial Role Morality 9 (Feb. 3, 2023)
(unpublished manuscript), papers.ssrn.com/abstract=4347334 [https://perma.cc/E44T-
5V7M] (arguing that in some instances “originalism functions as a potentially destabilizing tool
or force in constitutional adjudication in the Supreme Court, available to upset existing doctrinal
equilibria, but not as a recognized determinant of all decisions”).
42. See, e.g., Michael L. Smith & Alexander S. Hiland, Using Bruen To Overturn New York
Times v. Sullivan, 50 P
EPP. L. REV. 80, 84 (2023) (arguing that Bruen’s “approach to constitutional
rights and focus on historical traditions will likely be employed in other cases—including those in
the First Amendment context”); Clay Calvert & Mary-Rose Papandrea, The End of Balancing?
Text, History & Tradition in First Amendment Speech Cases After Bruen, 18 D
UKE J. CONST. L.
& PUB. POL’Y 59, 60–66 (2023) (assessing what a Bruen-inspired approach to the free-speech cases
would look like).
43. See Pushaw, supra note 36, at 59 (“Dobbs illustrates that stare decisis in constitutional
law is so malleable as to be almost useless as a constraint on decision-making.”); Fallon, supra
In assessing Bruen in its larger context, this Article makes four
primary contributions. First, it provides a critical examination of
Bruen’s method. The test the Court announced remains underspecified
on key metrics about how lower courts should find historical tradition:
what it means to identify the existence of tradition; whether the
endurance of that tradition matters; how, if it all, the enforcement of the
tradition changes the analysis; and what role the evolution of tradition
plays in the inquiry. Second, the Article places Bruen in the context of
other history-focused rights and critiques the weight Bruen places on
historical silence. By making the absence of past regulations
dispositive, the Court relieves rights-claimers of any obligation to show
historical protection for their conduct. Third, the Article underscores
how Bruen has already generated—and is likely to continue
generating—confused and confusing lower court precedent. From a
comprehensive review of the more than three hundred federal court
decisions issued in the year after Bruen, this Article analyzes the types
and percentage of cases that have vindicated Second Amendment
challenges. Fourth, the Article maps out how lawmakers and lower
court judges can respond to Bruen’s approach. Lawmakers can
generate legislative findings about a law’s justification, potential
burden, and the historical tradition in which it follows to support the
law’s defense in court; judges can employ consulting historians, fill the
gaps in Bruen’s method in a way that facilitates democratic decision-
making, and construe the decision narrowly.
Unpacking Bruen in this way shows how the ruling can inform
ongoing discourse about the Supreme Court’s methodological
trajectory for constitutional rights. Standing as it does at the border
between originalist and traditionalist interpretation,
44
Bruen calls for
note 41, at 38 (noting that “[c]ommentators agree increasingly that the legally obligatory force of
stare decisis in the Supreme Court is vanishingly weak”); Daniel B. Rice, Repugnant Precedents
and the Court of History, 121 M
ICH. L. REV. 577, 627 (2023) (underscoring the importance of a
regularized stare decisis framework).
44. We might even call it “blended origino-traditionalism,” DeGirolami, Traditionalism
Rising, supra note 12, at 20, or “living traditionalism,” Girgis, supra note 39, at 8, or, as one recent
essay termed it, “Originalish,” A.W. Geisel, Bruen Is Originalish 1 (Jan. 23, 2023)
(unpublished manuscript), papers.ssrn.com/abstract=4335950 [https://perma.cc/2H9C-
3LPR]; cf. Michael P. O’Shea, The Concrete Second Amendment: Traditionalist Interpretation and
the Right To Keep and Bear Arms, 26 T
EX. REV. L. & POL. 103, 106 (2022) (arguing that Heller
“is best understood as the product of a fusion of originalist and traditionalist methods”). Several
scholars have recently observed that Bruen contains elements of both originalist and non-
originalist reasoning. See Barnett & Solum, supra note 39, at 19–23; Girgis, supra note 39, at 23
greater attention to the contours and limits of these projects.
45
So, too,
does the decision shine light on a host of other persistent debates in
constitutional theory, such as those over proportionality review and
balancing tests,
46
as well as over antinovelty and historicism.
47
On top
of that, in mandating a textualist first step, Bruen also elevates the
centrality of recent research and scholarship that surfaces the
intratextualist quarrels splitting the Court’s textualist Justices at just
the time that legal scholars have dubbed “textualism’s defining
moment.”
48
(noting that “[p]ost-ratification practices have guided both major cases defining the scope of the
rights to keep and bear arms under the Second Amendment”).
In general, traditionalism focuses on practices as key constituents of constitutional
meaning, while originalism focuses on the public meaning of enacted text at the time of
ratification as the key constituent of constitutional meaning. See Marc O. DeGirolami, First
Amendment Traditionalism, 97 W
ASH. U. L. REV. 1653, 1674 (2020) [hereinafter DeGirolami,
First Amendment] (“No original meaning theory gives primacy to ancient and enduring practices
as constituents of meaning, so that none is synonymous with traditionalism on that point at
least.”).
45. See, e.g., Stephen E. Sachs, Originalism: Standard and Procedure, 135 H
ARV. L. REV.
777, 779 (2022) (describing originalism as a standard for what judges should be looking for, not a
decision procedure for how to get there); Marc O. DeGirolami, The Traditions of American
Constitutional Law, 95 N
OTRE DAME L. REV. 1123, 1123 (2020) [hereinafter DeGirolami,
Traditions] (identifying and elaborating on “a new method of constitutional interpretation: the
use of tradition as constitutive of constitutional meaning”); William Baude, Constitutional
Liquidation, 71 S
TAN. L. REV. 1, 35 (2019) (suggesting that “liquidation might turn out to be of
importance to those who subscribe to various ‘originalist’ methods of constitutional
interpretation”); Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original
Meaning, 91 N
OTRE DAME L. REV. 1, 21 (2015) (describing as a core feature of originalist families
of constitutional theory the notion that “the communicative content of the constitutional text is
fixed at the time of framing and ratification, but the facts to which the text can be applied change
over time”).
46. See Joseph Blocher, Categoricalism and Balancing in First and Second Amendment
Analysis, 84 N.Y.U.
L. REV. 375, 375–76 (2009) (discussing the use of means-end scrutiny and
categorical reasoning in Heller);
see generally JAMAL GREENE, HOW RIGHTS WENT WRONG:
WHY OUR OBSESSION WITH RIGHTS IS TEARING AMERICA APART (2021) (arguing in favor of
proportionality review and against a rights-as-trumps model).
47. Litman, supra note 13, at 1427–34 (listing reasons to be skeptical about arguments for
unconstitutionality grounded in novelty); Gienapp, supra note 8, at 935–36 (discussing debates
over the role of historical analysis in originalist interpretation).
48. William Eskridge Jr., Brian Slocum & Kevin Tobia, Textualism’s Defining Moment, 123
COLUM. L. REV. (forthcoming 2023) (manuscript at 6), papers.ssrn.com/abstract=4305017
[https://perma.cc/R99U-T8W9] (noting that while textualism is “now clearly ascendant” at the
Supreme Court and beyond, it is also “splintering”); Victoria Nourse, The Paradoxes of a Unified
Judicial Philosophy: An Empirical Study of the New Supreme Court, 2020–2022, 38 C
ONST. COMMENT.
(forthcoming 2023) (manuscript at 5), scholarship.law.georgetown.edu/facpub/2489
[https://perma.cc/G7T2-H89E] (finding “significant conflict among” textualist Justices themselves
about the meaning of text in recent terms); Frederick Schauer, Unoriginal Textualism, 90 G
EO.
Bruen, in short, is a constitutional kaleidoscope. Holding the
opinion up to the light, turning it over at different angles—each new
view reveals something important about the shifting methodological
commitments of the current Justices and the possible changes on the
horizon for extant constitutional law. But the decision also has
immense and immediate implications for burgeoning Second
Amendment doctrine itself. Since June 2022, lower courts have
received Bruen’s message to supercharge the Second Amendment, but
they have not yet located its Rosetta Stone. Their collective decisions
in the months since the ruling have been scattered, unpredictable, and
often internally inconsistent. In just the first year after the ruling, more
than three hundred lower federal court decisions assessed whether new
and settled regulations survive Bruen.
49
This Article presents an
analysis of the early results from this set of disparate opinions.
More than two dozen of those rulings concluded that Bruen’s test
invalidates state or federal laws under the Second Amendment.
50
The
cases have generated divergent rulings on the legality of key federal
laws, including whether individuals with felony convictions can be
prohibited from owning guns,
51
whether those under felony indictment
can be barred from acquiring new firearms,
52
whether those subject to
domestic-violence restraining orders can be disarmed,
53
and whether
the Second Amendment guarantees the right to a firearm with an
obliterated serial number.
54
The decisions have also weighed in on the
constitutionality of recently enacted state laws, like those regulating
WASH. L. REV. 825, 826 (2022) (advocating a nonoriginalist form of textualism); see generally
Tara Leigh Grove, Which Textualism?, 134 H
ARV. L. REV. 265 (2020) (using the Supreme Court’s
opinion in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), to highlight the disagreement
between “formalistic” and “flexible” textualists).
49. See infra Part III.
50. See infra Part III.
51. Compare United States v. Jackson, 69 F.4th 495, 501 (8th Cir. 2023) (holding that the
law is constitutional), with Range v. Att’y Gen., 69 F.4th 96, 106 (3d Cir. 2023) (en banc) (holding
that the law is invalid as applied to the challenger).
52. Compare United States v. Kelly, No. 3:22-CR-00037, 2022 WL 17336578, at *1 (M.D.
Tenn. Nov. 16, 2022) (yes), with United States v. Quiroz, 629 F. Supp. 3d 511, 527 (W.D. Tex.
2022) (no).
53. Compare United States v. Bernard, No. 22-CR-03 CJW-MAR, 2022 WL 17416681, at
*5–6 (N.D. Iowa Dec. 5, 2022) (yes), with United States v. Perez-Gallan, No. PE:22-CR-00427-
DC, 2022 WL 16858516, at *15 (W.D. Tex. Nov. 10, 2022) (no).
54. Compare United States v. Reyna, No. 3:21-CR-41 RLM-MGG, 2022 WL 17714376, at
*1 (N.D. Ind. Dec. 15, 2022) (no), with United States v. Price, 635 F. Supp. 3d 455, 457 (S.D. W.
Va. 2022) (yes).
large-capacity magazines,
55
self-manufactured “ghost guns,”
56
and the
sensitive places where guns can be outlawed.
57
The lower courts’
disputes about outcomes have turned largely on disputes about how to
apply Bruen’s new method.
58
Additional circuit precedent will no doubt smooth over some of
these jagged edges.
59
But close attention to these initial, faltering
attempts to use Bruen’s test is important in its own right. It reveals the
decision’s underlying indeterminacy, underscoring how the test inflates
judicial discretion at the same time it veils transparency.
60
The analysis
also foregrounds the key points of ambiguity that the Court will need
to resolve. “[T]he critical question lower courts now face,” said one
district judge, “is whether Bruen requires the regulatory landscape be
trimmed with a scalpel or a chainsaw.”
61
In practice, Bruen has meant
that lower courts can simply choose whichever instrument they want in
pruning each particular regulatory hedge before them.
This Article proceeds in four Parts. Part I examines Bruen’s new
methodological framework. It traces the genealogy of the test Bruen
embraced—and the alternative it rejected—and unpacks the shape of
the new method. Next, Part II argues this new method does not deliver
on Bruen’s promise that it would constrain discretion and provide
courts with clear guidance.
62
Bruen leaves key questions unanswered
and sometimes unaddressed, forcing lower court judges to make
haphazard, predictive guesses about how a majority of Justices will
view a given regulation. Part III examines the blossoming lower court
precedent, finding that the resulting decisions have been unpredictable
and in frequent tension. Finally, Part IV identifies pathways for
legislatures to enact and lower courts to implement the decision
without voiding all reasonable attempts to regulate guns.
63
I.
BRUEN’S NEW METHOD
Bruen suggests it is recovering, rather than creating, the test it
announced.
64
In fact, the Court’s justification for adopting the history-
cum-analogy framework was that Heller demanded it.
65
Because of that
emphasis, this Part unpacks the methodological path from Heller to
Bruen. Despite Bruen’s confidence about how to read the case, Heller
was enigmatic to courts and commentators in the subsequent years.
66
Lower courts thus drew on their experience with other individual rights
to fashion a test using the familiar tools of strict and intermediate
scrutiny.
67
Part I.A describes this evolution and the reigning paradigm
prior to Bruen. Part I.B examines the new history-and-analogy test
Bruen prescribed.
A. Heller, McDonald, and the Emerging Two-Part Framework
In Heller, the Supreme Court held that the Second Amendment
protects an individual’s right to keep and bear arms unconnected to an
organized militia.
68
On that basis, the Court struck down two District
of Columbia laws that interfered with the right to keep an operable and
accessible handgun in the home for purposes of self-defense.
69
Heller,
however, was expressly noncommittal about how its new articulation
of the Second Amendment should be applied in other circumstances.
The decision disavowed any intent to create a comprehensive
framework, acknowledging that Justice Breyer’s dissent “criticizes us
for declining to establish a level of scrutiny for evaluating Second
Amendment restrictions.”
70
The Court’s response implicitly accepted
that criticism. It did not retort that Breyer had mistakenly overlooked
the test it established but instead responded that Breyer’s proposed
alternative was worse than leaving the question open.
71
Breyer had
proposed that, in reviewing a Second Amendment challenge, courts
should ask “whether the statute burdens a protected interest in a way
or to an extent that is out of proportion to the statute’s salutary effects
upon other important governmental interests.”
72
According to the majority, Breyer’s interest-balancing approach
proposed, “explicitly at least, none of the traditionally expressed levels
(strict scrutiny, intermediate scrutiny, rational basis)” of constitutional
review.
73
The Court characterized Breyer as advocating for a test that
“no other enumerated constitutional right” was subject to.
74
The Court
said it could not employ that test without subverting the will of the
Constitution’s ratifiers.
75
The Heller majority emphasized that it would
have time to flesh out the proper rules for Second Amendment
challenges in future cases.
76
The dissent, it said, “chides us for leaving
so many applications of the right to keep and bear arms in doubt, and
for not providing extensive historical justification for those regulations
of the right that we describe as permissible.”
77
But, the Court insisted,
that lack of clarification should not be surprising. “[S]ince this case
represents this Court’s first in-depth examination of the Second
Amendment, one should not expect it to clarify the entire field, any
more than . . . our first in-depth Free Exercise Clause case, left that
area in a state of utter certainty.”
78
For the Heller majority, many
questions were appropriately left to another day: “[T]here will be time
enough to expound upon the historical justifications for the exceptions
we have mentioned if and when those exceptions come before us.”
79
Yet, as the Bruen Court read the decision, Heller did clarify quite
a bit of the field. The decision’s “methodological approach,” according
to Bruen, began with an ordinary-meaning textual analysis of the
Second Amendment, continued on to confirm that conclusion was
consistent with history, and then used history “to demark the limits on
the exercise of that right.”
80
Bruen acknowledged that the Heller
majority said D.C.’s law would fail under any level of scrutiny, but
Bruen emphasized that Heller did not actually apply means-end
scrutiny to the challenged law.
81
Rather, said the Bruen majority, the
important point in Heller was that D.C.’s law was “historically
unprecedented.”
82
For the Bruen Court, the clearest indication that Heller rejected
means-ends scrutiny was its response to Breyer’s push for the interest-
balancing approach.
83
Bruen equated Breyer’s approach with the
traditional tiers of scrutiny, writing that Heller ruled out “any” test that
empowers judges to weigh interests and declined to engage in means-
end scrutiny because doing so would be inconsistent with the entire
premise of written constitutionalism.
84
Breyer’s proposed test, said the
Court, “simply expressed a classic formulation of intermediate scrutiny
in a slightly different way,” and Heller’s direct repudiation of that
method signaled its rejection of means-end scrutiny altogether.
85
In
sum, said the Bruen majority, “[w]hether it came to defining the
character of the right (individual or militia dependent), suggesting the
outer limits of the right, or assessing the constitutionality of a particular
regulation, Heller relied on text and history.”
86
But, in the decade and a half after Heller, the lower courts had
read the case differently.
87
Courts as well as commentators concluded
that the Supreme Court had left the question about what test to use
unspecified.
88
“The general consensus,” observed one scholar in the
immediate aftermath of the decision, “is that Heller failed to provide a
framework by which lower courts could judge the constitutionality of
gun control.”
89
As a result, judges filled the perceived gap not by
applying an “entirely different body of rules”
90
than what they used in
other fundamental-rights contexts but by doing the precise opposite:
employing the same framework used elsewhere in constitutional
litigation over fundamental rights.
91
For example, just weeks after McDonald incorporated the Second
Amendment against the states, the Third Circuit upheld the federal law
that bars possession of a firearm with an obliterated serial number.
92
Writing for the panel in United States v. Marzzarella,
93
Judge Anthony
Sirica, a Ronald Reagan appointee, concluded that Heller suggested “a
two-pronged approach to Second Amendment challenges.”
94
First,
courts should assess whether a challenged law burdens conduct within
the scope of the Second Amendment. If so, then courts should apply
strict or intermediate scrutiny.
95
The Marzzarella court expressly
borrowed this framework from First Amendment case law.
96
Rather
than treat the Second Amendment differently than other individual
rights, the court believed that this test would make them equals.
97
The Third Circuit was not alone in this understanding of Heller. In
United States v. Skoien,
98
the Seventh Circuit confronted an early post-
Heller challenge to the federal law barring firearm possession by those
with a misdemeanor domestic-violence conviction.
99
In an opinion by
creates, and what regulations legislatures may establish, were left open.”); United States v.
Booker, 570 F. Supp. 2d 161, 163 (D. Me. 2008) (remarking that Heller “consciously left the
appropriate level of scrutiny for another day”).
89. Blocher, supra note 46, at 378; see also Glenn H. Reynolds & Brannon P. Denning,
Heller’s Future in the Lower Courts, 102 N
W. U. L. REV. 2035, 2035 (2008) (noting the decision’s
lack of guidance).
90. McDonald v. City of Chicago, 561 U.S. 742, 780 (2010).
91. Charles, Constructing a Constitutional Right, supra note 19, at 335 (observing that lower
courts had implemented the Second Amendment right by relying “heavily on the doctrinal
scaffolding built around more established constitutional rights”).
92. See United States v. Marzzarella, 614 F.3d 85, 87 (3d Cir. 2010).
93. United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010).
94. Id. at 89.
95. Id.
96. Id. at 89 n.4.
97. Id. at 89 n.4, 96–97.
98. United States v. Skoien, 587 F.3d 803 (7th Cir. 2009), vacated, No. 08-3770, 2010 WL
126762, at *1 (7th Cir. Feb. 22, 2010).
99. Id. at 805.
Judge Diane Sykes, a George W. Bush appointee, the court first
observed that Heller “conspicuously declined to set a standard of
review.”
100
Despite that lacuna, and like the Marzzarella court, the
panel “read Heller as establishing the following general approach to
Second Amendment cases.”
101
“First,” said the panel, “some gun laws
will be valid because they regulate conduct that falls outside the terms
of the right as publicly understood when the Bill of Rights was
ratified.”
102
The government can prevail if it shows the conduct is
unprotected.
103
“If, however, a law regulates conduct falling within the
scope of the right, then the law will be valid (or not) depending on the
government’s ability to satisfy whatever level of means-end scrutiny is
held to apply.”
104
Other courts soon followed these decisions by respected
Republican-appointed jurists, who were generally considered
jurisprudentially conservative, in adopting what came to be known as
the “two-part framework.”
105
After all, those judges’ treatment of the
claimed Second Amendment right in direct appeals from criminal
convictions could hardly be called cavalier.
106
And so, given that it was
informed by First Amendment jurisprudence, could be discerned from
the outlines of Heller, and was consistent with McDonald’s injunction
not to apply an entirely different set of rules, the two-part framework
became firmly ensconced in Second Amendment law.
107
Eleven of the
twelve geographic circuits expressly adopted it, and no federal court of
appeals to confront the question rejected the two-part framework.
108
Even vocal gun-rights advocates initially embraced the
framework.
109
But that consensus began slowly shifting after then
Judge Brett Kavanaugh dissented from a D.C. Circuit panel decision
applying the two-part framework to the District of Columbia’s post-
Heller gun regulations.
110
In his dissent, Kavanaugh argued that the
two-part framework was inconsistent with Heller and McDonald.
111
On
his reading, in rejecting Breyer’s interest-balancing approach, those
decisions also rejected any form of means-end scrutiny.
112
In its place,
he read them to set up the following test: “Gun bans and gun
regulations that are longstanding—or, put another way, sufficiently
rooted in text, history, and tradition—are consistent with the Second
Amendment individual right.”
113
But if a challenged law lacks that
historical pedigree, it violates the Second Amendment.
114
Historical
analogy might sometimes be necessary, Kavanaugh conceded, “when
legislatures seek to address new weapons that have not traditionally
existed or to impose new gun regulations because of conditions that
have not traditionally existed.”
115
But his dissenting opinion did not
offer details on performing that analogical task.
Notably, no one in the case appears to have asked the court to
reject the two-part framework.
116
In responding to Kavanaugh’s
dissent, the panel’s majority opinion—authored by conservative judge
Douglas Ginsburg—expressed surprise: “If the Supreme Court truly
intended to rule out any form of heightened scrutiny for all Second
Amendment cases, then it surely would have said at least something to
that effect.”
117
But Heller “did not say anything of the sort; the plaintiffs
in this case do not suggest it did; and the idea that Heller precludes
Court to give strict scrutiny to the” challenged law “because McDonald held that the right to keep
and to bear arms is ‘fundamental’” and “laws burdening fundamental rights trigger strict
scrutiny”), vacated, 664 F.3d 774 (9th Cir. 2011). Despite these calls, however, it is not the case
that all fundamental rights merit strict scrutiny. See generally Adam Winkler, Fundamentally
Wrong About Fundamental Rights, 23 C
ONST. COMMENT. 227 (2006) (dismantling this claim).
110. Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1276 (D.C. Cir. 2011)
(Kavanaugh, J., dissenting) (“I read Heller and McDonald as setting forth a test based wholly on
text, history, and tradition.”).
111. Id.
112. Id. at 1273.
113. Id. at 1285.
114. Id.
115. Id. at 1275
116. See id. at 1265 (noting that “the plaintiffs . . . d[id] not suggest” that “the Supreme Court
. . . intended to rule out any form of heightened scrutiny for all Second Amendment cases”).
117. Id.
heightened scrutiny has eluded every circuit to have addressed that
question since Heller was issued.”
118
B. Bruen’s Replacement: The History-and-Analogy Test
In Bruen, Kavanaugh’s view prevailed. Justice Thomas’s opinion
for a six-Justice majority acknowledged the settled consensus in the
lower courts on the two-step framework.
119
But, for the majority, that
test contained “one step too many.”
120
The first step, asking whether
the regulation burdens conduct protected under the Second
Amendment, was “broadly consistent with Heller.”
121
But as for the
second step, where courts applied intermediate or strict scrutiny,
Thomas’s majority opinion read Heller the same way Kavanaugh had.
For them, no interest-balancing meant no means-end scrutiny.
122
The
government, Thomas concluded, can no longer defend a law on the
grounds that it “promotes an important interest.”
123
Instead, the
government bears the burden to prove that a challenged regulation “is
consistent with this Nation’s historical tradition of firearm
regulation.”
124
History is both the method of determining the meaning
of constitutional text and the mechanism for implementing that
meaning in concrete disputes, collapsing a distinction between
interpretation and construction.
125
The Bruen Court, however, insisted that its new test “accords
with” the method the Court uses for adjudicating other constitutional
rights.
126
In some free-speech challenges, the Court noted, the
government must prove that speech is unprotected by pointing to
“historical evidence about the reach of the First Amendment’s
protections.”
127
And the same is true, Bruen proclaimed, for “many
other constitutional claims.”
128
All the Court was doing in Bruen was
“adopt[ing] a similar approach” for Second Amendment questions.
129
This claim to consistency across constitutional domains is not
entirely convincing. To be sure, history is almost always an important
part of the constitutional inquiry and can sometimes lend itself to only
one answer.
130
But it is very seldom looked to in isolation. Lower courts
after Heller, in fact, adopted the two-part framework used before
Bruen precisely because it was drawn from the Supreme Court’s free-
speech jurisprudence.
131
That jurisprudence first questions the scope of
coverage and then, if the First Amendment covers the conduct, applies
traditional means-end scrutiny to ascertain the strength of
protection.
132
The Supreme Court has consistently applied this two-
part inquiry to free-speech cases, even in recent terms.
133
Yet Bruen
invoked only one part of this inquiry to support making history alone
decisive.
134
Bruen omitted any discussion of the commonly employed
second stage, where means-end scrutiny is a prominent fixture of
modern free-speech jurisprudence.
135
In any event, Bruen’s new test appears itself to have two distinct
stages.
136
At the first stage, Bruen directed courts to look to the text.
“When the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that conduct.”
137
If a
court concludes that the conduct is covered, the “presumpti[on]”
138
that
the conduct is constitutionally protected can be rebutted only if the
government is able to “justify its regulation by demonstrating that it is
consistent with the Nation’s historical tradition of firearm
regulation.”
139
In other words, the first step appears to ask a coverage
question about the scope of the Second Amendment by reference to
the text, and the second step asks a protection question by reference to
history and tradition.
140
And that first step, as Bruen suggested, is
largely similar to the type of coverage question courts asked under the
prior two-part framework.
141
Applying this new test, the Court said, will “be fairly
straightforward” in some range of cases.
142
For example, if a
contemporary law addresses a general social problem that existed
when the Second Amendment was ratified, then it raises alarm bells if
the government defending that law cannot show “a distinctly similar
historical regulation.”
143
And it would be evidence that a contemporary
law is unconstitutional if “earlier generations addressed” the same
problem using “materially different means” or if they sought to employ
similar means but were rebuffed on constitutional grounds.
144
Heller and Bruen, said the majority, were among those “relatively
simple” cases because each challenged law responded to a gun-violence
problem that the majority characterized as persisting since the
Founding.
145
But other cases that deal with either social problems
unknown to the Founding generation or dramatic technological change
require a “more nuanced” approach.
146
There, Bruen stated, courts can
use their expertise in the everyday legal task of drawing analogies.
“Like all analogical reasoning, determining whether a historical
regulation is a proper analogue for a distinctly modern firearm
regulation requires a determination of whether the two regulations are
‘relevantly similar.’”
147
Bruen laid down two nonexhaustive principles
of relevant similarity for the Second Amendment: first, whether the
challenged law and a historical one burden self-defense in the same or
similar ways, and second, whether the challenged and historical laws
were justified on the same or similar grounds.
148
These “how” and
“why” metrics were not meant to be comprehensive, Bruen
acknowledged, but are important considerations in performing the
required analogical reasoning.
149
The Court insisted that the mandate to use analogical reasoning
creates “neither a regulatory straightjacket nor a regulatory blank
check.”
150
It is not a blank check because courts cannot simply defer
whenever the government introduces a vaguely similar historical
analogue, which would risk treating outlier laws as paradigm cases.
151
But the mandate is also not a straightjacket because “analogical
reasoning requires only that the government identify a well-established
and representative historical analogue, not a historical twin.”
152
Thus,
even when the similarity does not make the precursor “a dead ringer”
for a modern law, the similarity might make it “analogous enough.”
153
With a professed aim to show how this method should work in
practice, Bruen used, as an example, the sensitive-places doctrine.
154
That doctrine, derived from dicta in Heller, removes from Second
Amendment protection the right to keep and bear arms in select
locations deemed “sensitive,” like schools and government buildings.
155
Bruen’s statements here are a bit cryptic, but the Court said that, even
though there were relatively few places deemed sensitive in the early
Republic, it assumed those laws were constitutionally valid because it
knew of “no disputes regarding the lawfulness of such prohibitions.”
156
With that starting point, future courts could “use analogies to those
historical regulations of ‘sensitive places’ to determine that modern
regulations prohibiting the carry of firearms in new and analogous
sensitive places are constitutionally permissible.”
157
Besides enjoining courts to “use analogies” to extend place-based
prohibitions to “new and analogous” locations, it is not entirely clear
how the example informs the history-cum-analogy method that Bruen
ostensibly raised the example to illustrate. The Court did not, for
example, examine the “how” and “why” of any purported extension of
the sensitive-places doctrine, even though it centered such inquiries in
its description of the new analogical method. Nor did Bruen discuss any
of the locations to which lower courts extended the doctrine in the
years after Heller to either ratify or renounce those extensions under
its new method.
158
All in all, the Court did little to quell the concerns about a test
relying exclusively on historical methods. The majority maintained that
“reliance on history” to implement constitutional rights is “more
legitimate, and more administrable” than what took place under
means-end scrutiny.
159
The Court’s judgment on this point is
comparative—it said the new test fosters these values more than the
two-part framework.
160
Yet neither justification seems particularly well
supported.
As for administrability, the majority appeared to believe that its
test requires only those specialized skills that lawyers are trained to
use. According to the Court, the “historical inquiry that courts must
conduct will often involve reasoning by analogy—a commonplace task
for any lawyer or judge.”
161
The Court did acknowledge that historical
inquiry can be hard.
162
But it claimed such difficulties recur in
constitutional adjudication and saw “no reason why judges frequently
tasked with answering these kinds of historical, analogical questions [in
other contexts] cannot do the same for Second Amendment claims.”
163
In response to the dissent’s argument that a search for historical
answers would be unworkable, the majority announced itself
“unpersuaded.”
164
“The job of judges,” said the Bruen majority, “is not
to resolve historical questions in the abstract; it is to resolve legal
questions presented in particular cases or controversies.”
165
Those legal
questions are to be resolved according to the general standards and
principles governing litigation, such as burdens of proof, rules of
evidence, presumptions and defaults, and the principle of party
presentation.
166
“Courts are thus entitled,” declared the Bruen Court,
“to decide a case based on the historical record compiled by the
parties.”
167
One puzzle that Bruen did not address is why the same default
rules would not also alleviate concerns about litigating “‘empirical
judgments’ about ‘the costs and benefits of firearms restrictions,’”
168
which the majority dismissed as beyond the ken of courts. Judges, after
all, are no more expert historians than expert empiricists. And so, even
accepting that the circumscribed historical research necessary to
answer legal questions is administrable, Bruen offers no reason to think
its test more administrable than the alternative it replaced. And the
lower court decisions applying Bruen’s test, discussed in Part III, give
strong reason to believe the history-only test is, in fact, far less
administrable than what it replaced.
As for legitimacy, Bruen said nothing explicit about what made its
test more legitimate than the alternative. But originalist judges and
scholars have long argued that searching for original meaning is the
only legitimate method of interpretation and the only method that
avoids a judge simply reading their own policy preferences into the
document.
169
And, in reading Bruen’s critique of the two-part test, one
can glean hints of this argument. “If the last decade of Second
Amendment litigation has taught this Court anything,” Thomas’s
majority opinion said, “it is that federal courts tasked with making such
difficult empirical judgments regarding firearm regulations under the
banner of ‘intermediate scrutiny’ often defer to the determinations of
legislatures.”
170
That deference is not appropriate in Second
Amendment cases.
171
What “demands our unqualified deference” is
not the judgment of contemporary legislators acting on behalf of
today’s citizens, but the “interest balancing by the people” who ratified
the Bill of Rights and the balance “struck by the traditions of the
American people.”
172
For the Court, then, its test is more legitimate
because it aims to rely on the understanding of the Second
Amendment’s scope at the time it was enshrined in the Constitution
and the traditions of long-dead Americans.
173
Even though all of the conservative Justices joined Thomas’s
opinion, and thus likely agreed with these justifications for the test,
several of their concurring opinions stressed the limited nature of the
ruling. Justice Alito wrote separately to underscore that the Court’s
decision did not settle other Second Amendment questions or
“disturb[] anything that we said in Heller or [McDonald] about
restrictions that may be imposed on the possession or carrying of
guns.”
174
Justice Barrett’s concurrence stressed that the Court did not
decide exactly how the historical inquiry should be done.
175
Perhaps
most significantly, Justice Kavanaugh, joined by Chief Justice Roberts,
concurred to emphasize that the decision did not call into question
licensing regimes with objective criteria that limited official discretion
and did not upset the set of presumptively lawful regulations that
Heller had approved.
176
Bruen is no doubt correct that history can and does matter
immensely in constitutional law. Sometimes it can even settle
interpretive debates fairly definitively. But often, the history runs out.
Conflicting interpretations of the past sometimes emerge and persist
despite the best evidence available. Other times, insufficient historical
evidence remains to illuminate alternative, competing claims to
authority.
177
That is one reason why history often supplements other
methods of constitutional argument and decisionmaking, rather than
supplants them.
178
“Framing the analysis as purely historical bolsters
the illusion that such an approach is, to a meaningful extent, more
objective, constraining, and neutral than an approach that is
forthrightly value-based.”
179
However, relying purely on historical
analysis often merely obscures the value judgments involved in the
decision.
180
II.
BRUEN’S BLINDSPOTS
The prior Part described the Bruen test and its genesis. This Part
explores underdeveloped portions of the test. Part II.A focuses on
specification and implementation, highlighting both the important
aspects of the test Bruen expressly left open and those it failed to settle
without a whisper of recognition. It shows how Bruen’s
underspecification led to an uneven application in that very case. Part
II.B raises a justification critique. It homes in on how Bruen hands
historical silence a megaphone to limit regulatory authority today with
no real explanation as to why.
A. Specification of the Test
1. Step One Puzzles. First, Bruen leaves the step-one “plain text”
inquiry unspecified. One lower court, for example, bemoaned that the
“Court spent very little time . . . explaining how to assess whether the
Second Amendment’s plain text covers an individual’s conduct.”
181
And that is far from harmless, for, as several scholars have recently
shown, debates are widespread among the self-proclaimed textualist
Justices about how to decipher plain meaning in a variety of contexts.
182
Rather than explain how to conduct the inquiry, the Court simply
looked at several dictionary definitions and contemporary case law to
answer the plain-text questions before it.
183
To be fair, little was likely
said in Bruen because little needed to be. Given Heller’s reading of the
Second Amendment, concluding that “bear arms” refers to carrying
arms outside the home was easier and quicker than answering other
questions about the text’s scope. But other cases present more nuanced
textual questions, and Bruen leaves lower courts to figure out the
interpretive step on their own.
184
Lorianne Updike Toler & Robert Capodilupo, The Constraint of History, 46 HARV. J.L. & PUB.
POL’Y 457, 457–58 (2023) (arguing that the use of historical sources can be constraining in the
Supreme Court).
181. United States v. Love, No. 21-CR-42, 2022 WL 17829438, at *2 (N.D. Ind. Dec. 20, 2022).
182. See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1825 (2020) (Kavanaugh, J.,
dissenting) (disagreeing with Justice Gorsuch’s textualist approach because “courts must follow
ordinary meaning, not literal meaning”); Eskridge et al., supra note 48, at 7 (“In case after case,
the Court’s textualists have disagreed not just about results, but also about what textualism as a
method entails.”); Nourse, supra note 48, at 4 (identifying disputes among the textualist Justices);
Grove, supra note 48, at 279–90 (describing various forms of textualism).
183. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2134–35 (2022).
184. See infra Part III.
More to the point, in asking how courts should go about
deciphering plain meaning, questions arise as to the relationship
between text and history. Does the textual interpretation take place
apart from historical inquiry? Or, as Bruen suggested in praising step
one of the framework it displaced, does this inquiry allow interpreting
“the Second Amendment’s text, as informed by history”?
185
But if that
is right, and history pervades the threshold textual inquiry, what work
is left for the second-stage inquiry into the government’s proffered
historical sources?
These are not abstract questions. Heller, after all, established that
the term “arms” in the Second Amendment is quite expansive.
186
Quoting Founding-era dictionaries, Heller read the term to include
“any thing that a man wears for his defence, or takes into his hands, or
useth in wrath to cast at or strike another.”
187
Thus, said Justice Scalia,
“[T]he Second Amendment extends, prima facie, to all instruments
that constitute bearable arms.”
188
On this definition, it seems suicide
vests and suitcase nukes get prima facie—or presumptive—
constitutional protection.
189
Is that the sort of threshold inquiry Bruen
sets up?
190
Or does the plain-text inquiry include understandings about
what was included in the term at the time of ratification—or even
require recourse to current practices among today’s armed citizens?
191
These questions could multiply for other terms in the amendment that
have vexed lower courts.
192
And they are likely to continue vexing
those courts. After all, according to recent scholarship, textualists
confront at least a dozen interpretive choices when reading a text,
193
and Bruen’s neglect of these issues will likely continue fostering the
lower court confusion and discrepancies this Article surfaces.
Besides the interpretive openness, Bruen also did not expressly
specify what must fall within the plain text. Does the first step include
deciphering whether the challenged conduct, weapon, and person
claiming a right are covered? Some lower courts have read the decision
to say that the plain-text inquiry only includes conduct, not other
determinations, such as those about the person or his weapon.
194
They
base this conclusion on Bruen’s initial description of the test: “When
the Second Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct.”
195
As a result, said
one trial court, questions about who counts as “the people” guaranteed
a right to firearms are not a part of the plain-text inquiry; instead,
“whether the Government can restrict [firearm possession] for a
specific group would fall under Bruen’s second step: the historical
justification for that regulation.”
196
But despite the abstract wording of its test, Bruen did, in fact,
suggest all three facets are included in the first interpretive step. When
it applied the new method it announced, Bruen was sure to examine
whether all three aspects fell within the plain text of the Second
Amendment:
It is undisputed that petitioners Koch and Nash—two ordinary,
law-abiding, adult citizens—are part of “the people” whom the
Second Amendment protects. Nor does any party dispute that
handguns are weapons “in common use” today for self-defense. We
therefore turn to whether the plain text of the Second Amendment
protects Koch’s and Nash’s proposed course of conduct—carrying
handguns publicly for self-defense.
We have little difficulty concluding that it does.
197
In other words, Bruen assessed “the people,” the “arms,” and the
conduct (“keep and bear”) at the initial stage. That appears to be the
best reading of what the test requires. But the Court’s description of
the test as focused on “conduct”—as opposed to its application of the
test to all three aspects—has understandably confused lower courts.
Finally, Bruen did not explain who bears the burden of proving
coverage at the plain-text step. Does the challenger bear the burden of
proving that their conduct, arms, and person fall within the plain text?
Or does the government need to disprove these facts to win? It seems
hard to imagine that the terrorist bearing a handheld chemical weapon
on an airplane would have no initial burden to raise his Second
Amendment challenge, though all aspects of the activity ostensibly fall
within one type of “plain” reading of the amendment’s text.
198
And
Bruen’s statement that the government’s burden to introduce history
arises after this threshold showing implies a kind of burden-shifting.
199
Those hints point in favor of placing the plain-text burden on the
challenger.
That said, there are other statements that could suggest the burden
rests on the government. Bruen suggested the first step of the prior,
displaced framework was appropriate and described that test as placing
the burden on the government to justify its regulation by showing it
regulated activity outside the amendment’s scope; it then included a
but see cite to contrary circuit precedent that had placed the burden on
the challenger.
200
That might suggest the government bears the burden
at the first step of the new test as well.
Although Bruen can be read both ways, the better reading appears
to mandate at least some obligation for a challenger to show that his
conduct, arms, and person are within the Second Amendment’s scope;
that best makes sense of Bruen’s emphasis on the government’s burden
at the history-and-tradition stage and its language suggesting a shift in
the burden once the plain-text hurdle is overcome.
201
Specifically, the Court did not settle whether 1791—when the Second
Amendment was ratified—or 1868—when the Second Amendment
was incorporated through the Fourteenth Amendment—was the
relevant benchmark.
203
It acknowledged the “ongoing scholarly
debate” about this question but declined to adopt either view.
204
Yet, despite this reservation, the Court sent mixed messages. For
instance, it invoked Heller for the proposition that post–Civil War
materials are not as relevant because they are too removed from the
time when the Second Amendment was ratified.
205
That made sense in
Heller because that case dealt with a federal law governed directly by
the Second Amendment, and so there was no debate in that case that
1791 was the only relevant time to ascertain original public meaning.
But Bruen confronted a state law governed by the Fourteenth
Amendment’s incorporation of the Second Amendment—so, unless
the Court was deciding the issue it said it left open, Bruen’s quotation
of Heller for this point is hard to understand. Similarly, later in the
opinion, Bruen discounted an 1860 regulation in part because it was
“enacted by a territorial government nearly 70 years after the
ratification of the Bill of Rights.”
206
But again, if 1868 were the right
metric, then a law enacted just a few years before passage of the
Fourteenth Amendment seems directly relevant to the public
understanding of the scope of that right.
207
While those hints suggest
1791 might be the key, Bruen occasionally did credit later material. The
Court pointed to Reconstruction-era sources that appeared to treat the
right to carry as an important component of Fourteenth Amendment
protections, and especially useful for previously enslaved Americans.
208
When confronted with questions that do turn on the answer to the
appropriate year, lower courts will have to choose which era matters.
209
Bruen also did not specify at least four other central aspects of the
historical inquiry: (1) what it means to discover the existence of a
historical tradition; (2) how the endurance of that tradition matters; (3)
what the government must show about the enforcement of that
tradition; and (4) how to deal with the evolution of tradition.
210
Though
absent from the statement of its test, the Court appeared to make these
factors salient at points in its application to New York’s law.
a. Existence. To paraphrase Justice Alito’s critique of Casey’s undue-
burden standard, “[t]he difficulty of applying [Bruen]’s new rules
surfaced in that very case.”
211
In using the new method it announced,
Bruen did not always consider the factors it emphasized—the
comparability of both the laws’ burdens and their justifications. The
Court rejected nearly all the proffered practices, traditions, and
putative analogues the government put forward, but often for reasons
different than those its test made central.
212
In fact, Bruen also
appeared to reject laws as analogous at least in part on grounds that
did not distinguish those laws from New York’s. For example, it said
certain laws were not analogous because they still permitted the
carrying of long guns (as did New York’s challenged law)
213
and did not
operate as a complete “ban[] on public carry” (neither did New York’s
law).
214
And, as Justice Breyer observed in dissent, despite “a laundry
list of reasons to discount seemingly relevant historical evidence,” the
Court offered few reasons to accept rather than reject a proposed
analogue.
215
How, then, should lower courts go about searching for
precursors? In exploring the hints that can be gleaned from the Court’s
discussion of history, this section leaves to the side questions about the
accuracy of Bruen’s historical claims. Stipulating for the purposes of
this Article that its reading of history was correct, confusion still
abounds.
Under Bruen, historical tradition is no doubt the most important
determinant of constitutionality. But the concept is nebulous.
216
“Tradition is rarely simple and univocal; it is multifarious, evolving,
and complicated.”
217
Thirty years ago, commentators were observing
that “[a] recurring issue in constitutional cases as well as in academic
literature concerns the size of tradition, or the level of generality at
which it is to be described and the number of practices it thereby can
be said to embrace.”
218
Bruen did not define the concept or provide
guidance to lower courts tasked with finding traditions. How, then,
should courts determine whether a historical tradition exists?
219
Suggestions in the majority’s decision point in multiple, sometimes
conflicting directions about which past regulations actually matter. The
number, nature, age, coverage area, and prior judicial approval of
historical laws all seem to have mattered at different points. But the
clues can only be gathered from hints in the Court’s assessment of New
York’s law; the majority does not give direct guidance on these issues.
Take the majority’s description of analogical reasoning. It said
there that a modern law need not be a “dead ringer” or “historical
twin” (singular) but only an established and representative “analogue”
(singular) to allow the modern regulation “to pass constitutional
muster.”
220
Those statements suggest that while a dead ringer or
historical twin may not be necessary, a solitary one would be sufficient.
And, relatedly, it suggests that if the government could show it did in
fact have an analogue, then the modern law would be upheld.
221
Elsewhere, the Court said the government at times needed to show “a
distinctly similar historical regulation.”
222
But, when later confronted
with something admittedly like that, the Court backtracked. It would
“not give disproportionate weight to a single state statute and a pair of
state-court decisions.”
223
So the test, as applied, appears to mean that
more than one dead-ringer—or at least distinctly similar historical
regulation—is required to make enough history.
Adding to the confusion, the Court vacillated on just what the
historical precedent must be. It morphed seamlessly and silently from
requiring an “analogue” to proclaiming another piece of proffered
history insufficient because it provided “little evidence of an early
American practice.”
224
Though the Court said nothing about what
might constitute a “practice,” the term seems to connote an amorphous
but steady regularity nowhere defined in the opinion.
225
Then, in
distinguishing away a different piece of evidence, the Court remarked
that it doubted whether “three colonial regulations could suffice to
show a tradition.”
226
These statements raise a host of questions. Is an analogue different
than a practice? Are both (or either) different than a tradition? Were
the discarded colonial regulations deficient because they were
numerically insufficient (three precursors can never be enough to
constitute a tradition) or temporally unilluminating (colonial laws were
passed too long before ratification)? And how firm is the Court’s
“doubt” about their sufficiency? The Court’s shifting descriptions of
the required history—analogue, practice, tradition, precursor—
confuse and complicate the inquiry.
227
Plus, as the colonial examples illustrate, Bruen also stated that the
historical precedent can be neither too old nor too new. Even medieval
laws that found their way into the common law of newly independent
states were rejected as too old.
228
At the other end, laws from the late
1800s were viewed as suspiciously recent, and any from the twentieth
century were off-limits unless they were evidence of an ongoing
tradition that began earlier.
229
In prior work, I have referred to this
boundary setting as commanding a search for a kind of “goldilocks
history.”
230
And it is worth underscoring that, by discounting later
evidence, Bruen (like Dobbs) discounts evidence from precisely that
period in American history when excluded voices started becoming full
members of the political community with a say in the legislative
process.
231
Yet even on the question of age, the Court sent mixed signals by
expressly affirming the constitutionality of modern nondiscretionary
laws governing concealed carry licenses (i.e., “shall issue” laws, as
opposed to the “may issue” law in New York).
232
The majority did not
suggest those laws could satisfy its history-only test. And, as Professor
Adam Samaha underscores, they probably could not.
233
Not only is
public-carry licensing a modern invention, but the kinds of
nondiscretionary regimes that the Court preserved actually postdate
the discretionary ones the Court struck down.
234
That has led even
some otherwise sympathetic commentators to ask: “Under the Court’s
announced methodology, how in the world could only the later, rather
than the earlier, of two very late ‘traditions’ reflect the original
meaning of the Second Amendment?”
235
Instead of historical grounds,
Bruen seemed to justify nondiscretionary laws on the same kind of
pragmatic grounds it elsewhere dismissed.
236
Even if Bruen had clearly delineated the number of laws required,
the time periods that should bookend a historical search, and the
nature of what exactly courts should be looking for, the Court
occasionally used other reasons to reject past regulations. In discussing
territorial laws, for example, Bruen afforded them little to no weight
because territories were provisional and temporary, and the laws they
passed applied to “miniscule territorial populations.”
237
But territories
might warrant even more weight than state laws and cases because
these jurisdictions were directly bound by the Second Amendment
from the start.
238
Bruen also dismissed these laws because they were
rarely challenged on constitutional grounds—an apparent reason to
reject them, not respect them.
239
On that point, it is difficult to square
the Court’s dismissal of these laws on the grounds that they went
unchallenged with its express acceptance of sensitive-place laws on
those very same grounds.
240
In the end, Bruen’s test for establishing the existence of a relevant
historical tradition appears to be largely ad hoc. The Court treats the
bevy of laws that might support New York’s in isolation—as
“solitary”
241
and “exceptional.”
242
It characterizes potentially
supportive regulations as “uniquely severe,”
243
“unusually broad,”
244
or
“extreme restriction[s],”
245
and then dismisses them all as “outliers.”
246
Yet, as Professors Joseph Blocher and Darrell Miller detail, Bruen
does not simply find these laws as outliers; it makes them so.
247
“Bruen’s outliers are the product of decisions both inside and outside
the Court, motivated by express and assumed judgments about how to
count, and what counts.”
248
The Court’s categorization transformed
what might otherwise be considered different aspects of an enduring
tradition into isolated segments of social policy. And it leaves lower
courts floundering for guidance.
b. Endurance. Related to questions about the existence of a relevant
analogue, Bruen conveyed nothing express about how long a law must
endure to count as an input in the historical calculus. Some scholars
have argued that in the Court’s other cases using a traditionalist
methodology, a practice’s “duration, understood as a composite of age
and continuity,” has been a central feature of decision-making, with
duration on something like a sliding scale of authoritativeness.
249
For
Bruen, the issue went unaddressed. In discussing how the government
could rely on analogues to uphold a contemporary law, it said the
government needed one that was “well-established and
representative,” but how those adjectives apply to any past law are
subject to serious debate.
250
Bruen also quoted Heller’s description of
several laws as safe under its ruling because they were
“longstanding,”
251
but it failed to grapple with the critiques of Heller’s
appendage of that label to laws first passed in the 1960s.
252
personal defense.”); id. (“Nor, subject to a few late-in-time outliers, have American governments
required law-abiding, responsible citizens to demonstrate a special need for self-protection
distinguishable from that of the general community in order to carry arms in public.” (citation
and quotation marks omitted)).
247. Miller & Blocher, supra note 190, at 64 (“A central defect of Bruen is the suggestion that
its ‘outliers’ were simply found. They weren’t. They were created.”).
248. Id.; see also Justin Driver, Constitutional Outliers, 81 U.
CHI. L. REV. 929, 933 (2014)
(identifying and discussing various kinds of outlier-suppressing Supreme Court opinions).
249. See DeGirolami, Traditions, supra note 45, at 1165; DeGirolami, First Amendment,
supra note 44, at 1658 (“Where practices are less old, less continuous, or less dense (continuity
and density being the two elements of endurance), they bear decreasing interpretive authority on
traditionalist premises.”).
250. Bruen, 142 S. Ct. at 2133.
251. Id.
252. C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 H
ARV. J.L. & PUB.
POL’Y 695, 698–99 (2009); see also United States v. Nutter, 624 F. Supp. 3d 636, 641 (S.D. W. Va.
2022) (“As the Fourth Circuit and many commentators have recognized, though, there is not clear
Bruen dismissed one colonial regulation, at least in part, on the
ground that it lasted less than a decade.
253
It also said that several
“territorial restrictions deserve little weight because they were . . .
short lived.”
254
The “transitory”
255
and “temporary”
256
nature of those
laws counted against them. It is not hard to see why some lower courts
have subsequently dismissed as irrelevant laws that were not long-
lasting enough.
257
Yet, in stating the test it mandated lower courts
apply, Bruen gave no guidance on how long a given law (or set of laws)
had to endure to qualify as relevant historical precedent. A test that
demands an overly long duration for past regulations to qualify
threatens to discount probative evidence simply because state
experimentation and policy choices responded to changing facts on the
ground.
258
c. Enforcement. What if there is an enduring tradition of laws that have
gained widespread acceptance and govern a large population? Is that
enough or does the government have to prove those laws were
consistently enforced? And if so, with what frequency? Bruen did not
address, let alone answer, these questions.
259
But the majority did seem
to make enforcement and punishment occasionally important. If a
historical law carried a small penalty, that may be a sign it did not
impose an analogous burden to a contemporary law under the
historical evidence that those ‘longstanding’ prohibitions, dating to the early 20
th
century, existed
in similar form in the founding era.”).
253. Bruen, 142 S. Ct. at 2144 (“At most eight years of history in half a Colony roughly a
century before the founding sheds little light on how to properly interpret the Second
Amendment.”).
254. Id. at 2155.
255. Id.
256. Id.
257. Christian v. Nigrelli, No. 22-CV-695 (JLS), 2022 WL 17100631, at *8 (W.D.N.Y. Nov.
22, 2022) (faulting the government for failing to introduce evidence about how long a proffered
law lasted).
258. A troubling instance of that is the Fifth Circuit’s rejection of proposed analogues on the
ground that states later changed those laws—one more than a half-century after initial enactment.
See United States v. Rahimi, 61 F.4th 443, 458 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023).
259. And yet, given the nature of historical records, it might be difficult to locate sufficient
evidence even if a given law had been frequently enforced. See Eric M. Ruben & Saul Cornell,
Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context, 125
Y
ALE L.J. F. 121, 130–31 n.53 (2015) (explaining why historical enforcement records might be
difficult to find or no longer in existence).
relevant-similarity burden metric.
260
If it was not consistently enforced,
perhaps that would be another reason to think it imposed a small
burden, or perhaps that is an independent reason to reject the law.
261
After highlighting the meager penalty a surety bond imposed, for
example, the Court continued, “Besides, respondents offer little
evidence that authorities ever enforced surety laws.”
262
That statement
makes it seem as if lack of enforcement (or lack of evidence of
enforcement) would be an independent reason to reject those
regulations as analogous.
263
Furthermore, Bruen seemed to make race-based enforcement
relevant in important yet uncertain ways.
264
Dueling amicus briefs
before the Court focused alternatively on how New York’s law served
to protect Black New Yorkers who bear the brunt of gun violence
265
and how enforcement of New York’s gun laws serves to subordinate
Black New Yorkers who bear the brunt of policing and prosecution for
gun-related offenses.
266
The Court itself cited racist laws enforced
against Black Americans in the Civil War era as a sign of the right to
public carry for recognized citizens, and it even quoted the
anticanonical Dred Scott v. Sandford
267
case approvingly for the
proposition that granting Black Americans citizenship would entitle
them to the right to public carry.
268
In raising these issues, the Court
may have been inviting an inquiry into how historical laws were
enforced in racially disparate ways when lower courts search for a
historical tradition.
269
But the Court’s lack of clear guidance about the
role race should play in assessing modern regulations—or their
historical progeny—creates more confusion for lower courts
implementing the test.
d. Evolution. How should courts treat evolution in the tradition
governing some aspect of firearms regulation? Does an earlier
tradition necessarily trump a later one, or might a later one be
considered the more mature view of the scope of the right? Some
evolutions certainly seem to matter. Bruen is clear that “when it comes
to interpreting the Constitution, not all history is created equal.”
270
If
an old practice became “obsolete in England at the time of the
adoption of the Constitution and never was acted upon or accepted in
the colonies,” then it cannot count in favor of the contemporary law.
271
“English common-law practices and understandings at any given time
in history cannot be indiscriminately attributed to the Framers of our
own Constitution.”
272
So evolutions that occurred before ratification do
not freeze the prior understanding in time. Similarly, evolutions that
too far postdate ratification do not count. Much as the existence of a
tradition cannot be too old or too new, an evolution in how guns are
regulated cannot be too old or too new. Notwithstanding this
confusion, some lower courts have made the evolution of a regulatory
tradition a key part of their analysis.
273
B. Silence in the Past
Because Bruen requires the state to establish a historical tradition,
it gives monumental weight to the absence of positive law. Bruen, for
example, treated the fact that many Americans were permitted to carry
guns in public without a showing of need as proof that they had an
inalienable right to do so. For Bruen, historical permission ripened into
a right. “[T]hose who sought to carry firearms publicly and peaceably
in antebellum America were generally free to do so,” it said.
274
As a
result, Bruen treated later regulation of historically permitted conduct
as inconsistent with a previously understood right. For example, the
Court conceded that an 1871 Texas regulation was analogous to New
York’s law because that statute made the right to gun-carrying
contingent on showing reasonable grounds to fear an attack.
275
The
Court even acknowledged two contemporaneous Texas Supreme
Court decisions upholding the law against constitutional challenge.
276
Yet it proclaimed that it would not give those precedents
“disproportionate weight” because they purportedly “contradict[ed]
the overwhelming weight of other evidence regarding the right to keep
and bear arms for defense in public.”
277
But the Court cited no evidence
to even suggest that any similar statutes were declared—or would have
been considered—unconstitutional. There were no cases striking down
similar laws on constitutional grounds or other evidence that states
declined to enact similar regimes because doing so was thought to be
unconstitutional. Instead, the “other evidence” of the right to carry
seems to be the fact that other states simply had not adopted such
restrictions.
278
An old law, even one admittedly analogous, was
dismissed simply because it regulated previously permitted conduct.
generations may have declined to regulate for any number of reasons
that do not illuminate the question of constitutionality.
285
To take just
a few possible reasons, laws on the topic may have been considered
unnecessary given the prevailing social conditions or impractical given
the politics, logistics, or expense involved. Different constituents or
legislators may have had disparate views on the reasons for declining
to enact legislation.
286
In some cases, a given regulatory solution may
have simply never occurred to our forebears. Unless there is strong
reason to believe the lack of evidence is always because earlier
generations considered a type of regulation unconstitutional, Bruen’s
test loses normative and explanatory force.
But that is not all. There may be less-than-benign reasons for past
legislative inaction. Sometimes, for example, our ancestors did not
regulate because they did not deem a group’s interests worthy of
protection. Ratifying these reasons by tying the hands of today’s
legislators seems particularly problematic. Consider, in this light,
domestic violence. For the most part, our forebears (at least those who
had the power to make law) for far too long considered at least some
forms of spousal abuse a private matter.
287
The nation’s leaders often
did not protect women’s right to be free from terror and violence;
instead, at the Founding, they protected a “husband’s legal prerogative
to inflict marital chastisement.”
288
Today, state and federal laws
generally proscribe firearm possession for certain types of domestic
abusers.
289
Under federal law, for instance, individuals convicted of
misdemeanor crimes of domestic violence are permanently barred
from owning guns,
290
while those under a domestic-violence restraining
order cannot possess guns while the order is in effect.
291
Bruen draws these contemporary laws into question. For example,
stringently applying Bruen’s test, a Fifth Circuit panel said the lack of
similar past regulations means that domestic abusers today cannot be
disarmed during the pendency of a restraining order.
292
Some criminal
defendants have expressly argued that because “domestic violence
hardly was a prosecutable crime during the Founding era, let alone a
crime worthy of disarmament,” contemporary laws that disarm them
are unconstitutional.
293
Bruen thus appears to imbue not just the
Founders’ laws but the Founders’ values with veto power over
lawmakers today.
294
Even when there are no malevolent explanations for past inaction,
the absence of historical statutes still does not often signal a view on
constitutional authority. For example, apparently no Founding-era
regulations forbade or even tightly regulated private cannon
possession.
295
In that light, imagine a challenge to the current federal
regulations that impose registration, taxation, and recordkeeping
requirements on the private possession of cannons.
296
Under Bruen, the
barren historical record might be the ballgame.
297
But it is remarkably
easy to see how the fact that there were no private-cannon-ownership
laws is most easily explained as a case in which such laws would have
been considered unnecessary because there was not a perceived
problem for the law to solve.
298
Indeed, it seems hard to imagine that
anyone in the eighteenth or nineteenth centuries would doubt that the
states’ broad police powers could have been invoked to regulate such
possession if private artillery became a pressing social concern, as it
might have if large numbers of innocent bystanders were routinely
killed or maimed by indiscriminate cannon fire.
299
Relatedly, there are situations in which legal regulation may have
been unnecessary because social mores or customs were sufficient to
check potentially problematic or unwanted conduct.
300
This may well
explain the absence of more early regulations governing weapons-
carrying.
301
For example, in 1843, the North Carolina Supreme Court
explained that:
No man amongst us carries [a gun] about with him, as one of his every
day accoutrements—as a part of his dress—and never we trust will the
day come when any deadly weapon will be worn or wielded in our
peace loving and law-abiding State, as an appendage of manly
equipment.
302
Even in the antebellum South, social mores appear to have obviated
the need for greater legal oversight of gun-carrying in public spaces.
303
REV. (Feb. 3, 2022, 4:59 PM), www.nationalreview.com/corner/americans-can-still-buy-
cannon [https://perma.cc/8RZD-T2B7] (“[W]hether cannon count as ‘arms’ or ‘ordnance’ under
the original public meaning of the Second Amendment would be interesting to debate.”
(alteration in original)).
298. See Hanson v. District of Columbia, No. CV 22-2256, 2023 WL 3019777, at *16 (D.D.C.
Apr. 20, 2023) (using personal jetpacks as an example of a curiosity that has not generated much
regulatory interest because it is impractical, not because of a widespread belief that regulating
jetpacks is beyond the government’s power).
299. Charles, Fugazi Second Amendment, supra note 3, at 684–87, 698–701 (explaining the
broad authority to regulate under the police powers doctrine).
300. Miller, Equilibria, supra note 189, at 247 (underscoring that “[t]here may be practices
that went unregulated because everyone . . . considered them so aberrational that they didn’t need
to be specifically prohibited”).
301. Mark Anthony Frassetto, The Myth of Open Carry, 55 U.C.
DAVIS L. REV. 2515, 2518
(2022) (arguing that the lack of regulations on open carry in early America was a reflection that
such carrying was rare and that there was a “strong social stigma attached to openly carrying
arms”).
302. State v. Huntly, 25 N.C. 418, 422 (1843).
303. Charles, Fugazi Second Amendment, supra note 3, at 657–59 (describing an 1878
Missouri case decrying gun-carrying into places of social intercourse).
Just as laws may have been considered unnecessary, there are
certainly cases where regulations were thought to be lawful but
impractical because, for example, few people wanted them. Some
manifestly constitutional laws are just unpopular. National Prohibition,
authorized by its own constitutional amendment, proved spectacularly
unlikeable and was later repealed.
304
States, counties, and cities,
however, still enjoy authority to ban alcohol sales. The fact that few
exercise that power is a function of such laws’ unpopularity, not their
unconstitutionality.
305
Under Bruen, these reasons run together. Whether inaction
results from lack of necessity, impracticality, limited foresight or
ingenuity, disregard for marginalized populations, or other reasons
altogether is irrelevant. The absence in the past is all that appears to
matter. One judge evaluating a gun law post-Bruen has pointed this
discrepancy out: “[A] list of the laws that happened to exist in the
founding era is, as a matter of basic logic, not the same thing as an
exhaustive account of what laws would have been theoretically believed
to be permissible by an individual sharing the original public
understanding of the Constitution.”
306
Not only does this rule make
permissibility hinge on enacted laws, but it also reduces tradition to this
set of past legislation. But, as Professor Reva Siegel observes, “A
tradition consists in more than statutes.”
307
And so, as one
commentator underscored before Bruen, “[I]f tradition is to become
an intelligible basis for a decision, a court must peer beyond law books
and regulations and look at actual practice to identify the scope of
constitutional protection.”
308
It is not clear Bruen requires courts to do
so.
In treating every kind of conduct with guns as protected if it went
unregulated in the past, Bruen eliminates any category of historically
lawful but regulable conduct. Like the process of adverse possession,
permitted conduct at the Founding has ripened into an unassailable
right that forecloses legislative authority today. And, for just that
reason, Bruen’s test all but eliminates a challenger’s obligation to show
the claimed conduct was understood as historically protected under the
Second Amendment. Instead, Bruen created a presumption of
unconstitutionality for any firearm-involved conduct left unregulated
by law in the eighteenth century.
309
Americans that “hazard greater danger outside the home than in it,”
313
like the Chicagoans (who did not exist at the Founding) who face more
risks in a “rough neighborhood” than in their “apartment on the 35th
floor of the Park Tower” (which also did not exist at the Founding).
314
Beyond that, the bare text of the twenty-seven-word Second
Amendment is just too indeterminate on its own to settle the questions
of what comes within its ambit.
315
The Second Amendment protects the right “to keep and bear
arms,” but the unadorned text cannot fully answer what the right
encompasses. Heller, for example, made clear that “dangerous and
unusual weapons” are not protected “arms,”
316
but nothing in the text
alone would suggest such a reading. And while Bruen read “bear” to
include “carry”
317
—and some commentators, therefore, think the New
York case an easy one
318
—linguistic analysis of the phrase “bear arms”
in the relevant historical era challenges this easy inference.
319
The text
alone seems to settle little. And that is not surprising. Even for other
fairly specific constitutional provisions, courts and commentators have
long rejected the notion that the bare, literal text provides all the
answers. The First Amendment, for example, displays an “apparent
simplicity” with its mere thirteen words dedicated to freedom of speech
and press.
320
Justice Hugo Black took those words literally and
embraced an absolutist position that tolerated no law abridging the
freedom of speech.
321
But that position placed enormous pressure on
how to define “speech,” which Black was criticized for reading to
exclude some clearly expressive activities.
322
And it did not solve the
analytical problems either because “[a]sking whether activity is speech
or conduct rather than whether ‘speech’ is protected or unprotected
merely changes the vocabulary used in close cases without making the
outcome any more certain.”
323
In short, despite a textual hook for gun rights in the Constitution,
the Second Amendment’s text alone cannot justify Bruen’s
requirement that any regulation today must find grounding in prior
positive law. Bruen should, but never did, require a threshold showing
that the challenged activity was considered immune from regulation.
324
In many other areas of constitutional law, even those that are
historically inflected, the Court’s jurisprudence requires the rights-
claimer to show historical support for their claimed right—to show that
the conduct was not just permitted but understood as a right.
325
In the
realm of substantive due process, for example, the Court requires “a
careful description of the asserted fundamental liberty interest” and
finds protected “those fundamental rights and liberties which are,
objectively, deeply rooted in this Nation’s history and tradition.”
326
The
Court undertook just that inquiry in its decision the day after Bruen.
327
“Although a prequickening abortion was not itself considered
homicide,” Justice Alito wrote in Dobbs, “it does not follow that
abortion was permissible at common law—much less that abortion was
a legal right.”
328
The Court recognized—indeed, it relied on—the
distinction between mere uncriminalized conduct and constitutionally
protected conduct.
329
For the Dobbs majority, “the fact that many
States in the late 18th and early 19th century did not criminalize pre-
quickening abortions does not mean that anyone thought the States
lacked the authority to do so.”
330
In Dobbs, in short, the absence of evidence in the historical record
meant the Constitution left abortion unprotected. The same absence in
the historical record in Bruen meant the Constitution left gun rights
fully protected. Professor Aaron Tang has criticized this disjunction
and argued in support of a right to abortion by showing that pre-
viability abortion was left largely unregulated at common law.
331
Critics
of a right to abortion faulted Tang for making the same argument that
Bruen embraced: “When a state chooses to allow an action, it does not
ordinarily imply that it lacks the power to prohibit the action. By
contrast, when it chooses to bar an action, it ordinarily conveys its
belief that it has the power to do so.”
332
The Supreme Court did not
consistently apply an approach to the absence of historical evidence in
these two cases issued one day apart.
333
And the fact that gun rights
have clearer protection in the Bill of Rights cannot explain the
difference because the text alone does not change what past legislative
silence can tell us.
Indeed, even for enumerated rights, the Court typically requires
an initial showing that the conduct was historically understood to be
protected. This happens, for instance, with the Seventh Amendment
civil-jury right that the Court has tied to a historical methodology.
334
In
that context, “the Court has fashioned a test that relies primarily on
historical analogues to determine the kinds of suits that trigger a jury-
trial right and the constitutionality of procedural innovations that
control the jury.”
335
In other words, history helps dictate when the right
even shows up. Bruen, by contrast, demanded no evidence that the
conduct at issue—there, carrying a concealable firearm in public
without any special need—was historically understood as immune from
regulation. Whether dealing with an enumerated or unenumerated
right, history can be useful for original public meaning when it shows
what the ratifying generation understood that right to encompass. But
bare text plus historical silence does not get there.
By magnifying the importance of historical silence, Bruen
embraced a novelty-skepticism characteristic of traditionalist modes of
interpretation.
336
But it did not justify this methodological choice or
explain its frame of reference. Why, for example, require a practice or
tradition of regulating firearms in the challenged way rather than
require a practice or tradition of protecting the right in the claimed
way?
337
Writing before Bruen, Professor Michael O’Shea underscored
in the Second Amendment context how traditions can be used in two
distinct ways: as the basis for rights-limiting arguments or rights-
constitutive arguments.
338
In the former, a longstanding government
practice can serve to defeat a claim that government regulation today
violates individual rights.
339
In this rights-limiting frame, a regulatory
tradition is a sufficient justification for the government to prevail. In
the latter, “practices can . . . be used to make positive arguments about
rights,”
340
by, for example, showing that individuals consistently
practiced activity they understood to be their right. In this rights-
constitutive frame, practices can give rise to at least presumptive
evidence that the conduct is immune from regulation. Both of these
frames make sense of historical inference: Analogous legislation in the
distant past implies lawmakers thought such laws were constitutional;
practices or traditions that regard some activity as a right also evidence
constitutional understandings.
But Bruen’s test does not leverage either of these uses of historical
tradition. While Bruen did suggest that the government wins when
there is a historical tradition of regulation, it makes such a tradition a
necessary condition and not simply a sufficient one. Similarly, Bruen
did not point to practices or traditions of gun-carrying or the
understanding of such conduct as immune from regulation to support
the existence of an unencumbered public-carry right today.
Instead of using either of these frames, Bruen makes tradition
relevant in a third way that O’Shea does not mention: as what we might
call power-constitutive. The traditions of historical gun regulation
constitute—and thereby circumscribe—the power of the government
today to regulate guns. Those traditions constitute and delimit the
scope of contemporary legislative power. This is quite different from
the rights-constitutive model, which takes popular practices of
constitutional rights and public understanding of their protection to
enshrine a constitutional baseline, or even the rights-limiting frame,
would have been for a historical test to “place the burden on the challenging party to provide
historical evidence that the above mentioned areas of regulation were perceived as violating the
right to keep and bear arms”).
338. O’Shea, supra note 44, at 114–16; DeGirolami, Traditionalism Rising, supra note 12, at
7 (amplifying these two avenues).
339. O’Shea, supra note 44, at 114.
340. Id. at 116.
which makes past regulation sufficient to justify authority today.
341
Bruen made no effort to unearth any widespread practices of gun-
carrying that ought to be respected or beliefs about the protected
nature of such conduct; the Court was content to find the matter
relatively unregulated at various points in history and announce that it
should be ever so.
342
In short, Bruen started from the baseline that gun-
related conduct is constitutionally protected—without requiring
evidence for that baseline—and permitted only those regulations that
are analogous to ones in the distant past.
III.
BRUEN IN THE LOWER COURTS
Given the pieces of the test requiring further elaboration, it is no
surprise that the initial wave of lower court implementation has been
unpredictable. These lower court decisions in the months after Bruen
compound the critique in the prior sections: they have reached
inconsistent conclusions about what the test requires and how it works
in practice. Close attention to these cases helps underscore how the test
fails to constrain judicial decisionmaking, obscures value judgments
that drive the reasoning, leaves conscientious lawmakers uncertain
about the scope of their authority, and creates disuniform legal rules
across the country as courts reach irreconcilable judgments.
Federal courts adjudicated almost four hundred Second
Amendment claims in the twelve months after Bruen was decided. Part
III.A presents statistics about the success rates and types of claims that
have been decided in the year after Bruen, and Part III.B analyzes the
cases more closely and holistically.
A. The Big Picture
This subpart presents the analysis of an in-depth review of lower
court attempts to apply Bruen. The analysis comes from a review of
every federal court decision citing Bruen from the day it was decided
(June 23, 2022) until one year later (June 22, 2023)—about 470 cases in
all.
343
That set of cases was then narrowed to decisions that addressed
Second Amendment claims, excluding those that cited Bruen only for
broad methodological points or narrow procedural ones or that cited
the case while examining non–Second Amendment claims (for
example, in First Amendment cases). Out of the remaining 334 cases,
22 cases were excluded in which the court disposed of the case without
reaching the Second Amendment claim, such as dismissing it on subject
matter jurisdiction grounds or remanding the case to a lower court.
344
With the remaining cases, each was classified by the type of claim at
issue, which most often concerned the validity of a statute or regulation
but occasionally concerned discrete government actions. Some cases
had multiple claims, but many only had one. Then it was determined
whether the court vindicated a Second Amendment claim in the
decision.
Before presenting the results, some caveats about coverage and
classification are in order. First, even though the analysis sought to be
as broad as possible by including all federal rulings that even cited
Bruen, only those cases reported to Westlaw showed up in the results.
It is possible there were unreported district court orders that did not
appear in the data set. Second, in coding cases, inevitable judgment
calls had to be made about what to do with certain types of decisions,
such as magistrate reports and recommendations, emergency relief
(temporary restraining orders and preliminary injunctions), decisions
that were later vacated, and other similar decisions.
345
In general, all
decisions that confronted a Second Amendment claim were included
in the tally, even if they were only preliminary, nonbinding, or later
vacated.
Below, the data are presented in two different ways: first, as the
number of decisions in which a court vindicated one or more claims and
second, as the number of claims that courts have vindicated.
346
The first
method usefully underlines the scale of challenges in the wake of
Bruen, whereas the second more accurately conveys the type and
variety of claims that are succeeding.
Table 1. Second Amendment Decisions Post-Bruen
(6/23/2022–6/22/2023)
347
Any Invalidation No Invalidation Success Rate
Civil Cases
348
n=59 (18.9%)
18 41 30.51%
Criminal Cases
n=253 (81.1%)
10 243 3.95%
Total
n=312 (100%)
28 284 8.97%
Table 2. Second Amendment Claims Post-Bruen
(6/23/2022–6/22/2023)
349
Invalidation No Invalidation Success Rate
Civil Claims
350
n=81 (21.6%)
33 48 40.74%
Criminal
Claims
n=294 (78.4%)
11 283 3.74%
Total
n=375 (100%)
44 331 11.73%
The next chart shows the major types of claims among the 375
claims and their corresponding success rates.
351
Table 3. Claim Categories & Success Rates Post-Bruen
(6/23/2022–6/22/2023)
Claim Types
Number of
Claims
Successful Claims
and Rate
Age Restriction 5
3 (60%)
License/Permit Requirements 5
3 (60%)
Ghost Gun
352
5
2 (40%)
Bail/Probation Conditions 6
0 (0%)
Private Property Default Switch 6
6 (100%)
Obliterated Serial Number 9
1 (11.1%)
Sentence Enhancement
(Guidelines) 11
0 (0%)
Assault Weapon/Large-Capacity
Magazine 12
4 (33.3%)
National Firearms Act 12
0 (0%)
Unlawful Gun Use in a Crime 13
0 (0%)
False Statement in Gun
Buying
353
13
0 (0%)
Sensitive Place 15
8 (53.3%)
Felony Indictment Possession
Prohibition 22
4 (18.2%)
Miscellaneous
354
33
7 (21.2%)
Federal Possession Prohibition –
922
(g) 208
6 (2.9%)
TOTAL 375
44 (11.73%)
In reading these data, it is important to underscore that these are
not all the post-Bruen challenges that were waged in the first twelve
months after the ruling, but only those decisions that were issued in
that time. Some challenges were not yet adjudicated by the time this
analysis was conducted. And for some of the decisions that were issued,
the challenges were first brought before Bruen. Nonetheless, this big-
picture overview does underline the types and variety of claims that are
finding success and suggests how disruptive Bruen has been.
For comparison’s sake, the only major empirical study about the
effects of Heller showed that 0 out of 70 Second Amendment claims
were successful in the first six months after it came down, and only 11
(out of 327) challenges prevailed in the two and a half years after the
ruling.
355
The 44 successful claims in the first year after Bruen are
staggering in comparison. It took until 2013 before the 2008 Heller
decision would generate as many successful challenges.
356
B. A Closer Look
The prior subpart presented big-picture conclusions about the
nature, variety, and success rates for different types of claims. This
subpart unpacks those challenges in more detail, showing the different
ways that lower courts are reading and applying Bruen’s standard.
From assessing each of these challenges, this subpart surfaces and
synthesizes problems lower courts have encountered with the new
framework itself as well as the dual inquiries into text and history.
As a threshold issue, courts have remarked on the considerable
difficulty that a test focused solely on history imposes on lower courts
handling quick-paced litigation “on a drastically shorter timetable than
the higher courts.”
357
Many have voiced concern over the feasibility or
administrability of Bruen’s test.
358
One lamented that “[b]y . . .
announcing an inconsistent and amorphous standard, the Supreme
Court has created mountains of work for district courts that must now
deal with Bruen-related arguments in nearly every criminal case in
which a firearm is found.”
359
Some judges have questioned why it
makes sense to set yesterday’s laws as the boundary marker for today’s
authority.
360
As one Indiana federal judge said, “The United States
Constitution, as amended and as imperfect as it was, is the legacy of []
eighteenth-century Americans; it insults both that legacy and their
memory to assume they were so short-sighted as to forbid the people,
through their elected representatives, from regulating guns in new
ways.”
361
Several courts have underscored that the traditions from which
Bruen requires them to draw were formed nearly exclusively by white
men in an era when women and nonwhite men did not have a voice in
the laws that bound them.
362
After analyzing the public understanding
at the time of the Second Amendment’s ratification, one West Virginia
federal judge put the point frankly:
In 1791, the drafters of the Constitution considered the undersigned’s
ancestors as legal property. They, along with free Blacks, were
prohibited from possessing firearms. The popular conception of the
Second Amendment at the time it was enacted clearly did not
encompass all people having access to firearms to defend themselves
and fight for freedom from tyranny.
363
Despite these concerns, lower court judges have sought to follow
Bruen’s demands, implementing the historical test “whether,” as one
judge said, “the courts are actually well-suited to that inquiry or not.”
364
Sometimes those courts have even read Bruen to mandate conclusions
they think are wrong or harmful.
365
But their collective experience so
and nonwhite people had been able to vote for the representatives who determined
these regulations.
Id.
363. United States v. Nutter, 624 F. Supp. 3d 636, 645 n.10 (S.D. W. Va. 2022); see also United
States v. Smith, No. 22-cr-20351, 2023 WL 2215779, at *4 (E.D. Mich. Feb. 24, 2023) (“An honest
search for an ‘American’ tradition on gun regulation is especially challenging, given that well over
half of the American population—including women, Blacks, and others—were generally
excluded by law from political participation at the time of the Second Amendment’s passage and
for decades thereafter.”).
364. Kelly, 2022 WL 17336578, at *3.
365. Holden, 2022 WL 17103509, at *7 (stating that “[t]his opinion was drafted with an
earnest hope that its author has misunderstood [Bruen]. If not, most of the body of law Congress
has developed to protect both public safety and the right to bear arms might well be
unconstitutional.”); see also United States v. Quiroz, 629 F. Supp. 3d 511, 513 (W.D. Tex. 2022)
(“There are no illusions about this case’s real-world consequences—certainly valid public policy
and safety concerns exist. Yet Bruen framed those concerns solely as a historical analysis.”);
Worth v. Harrington, No. 21-cv-1348, 2023 WL 2745673, at *17 (D. Minn. Mar. 31, 2023) (“If the
Court were permitted to consider the value of these goals and how well Minnesota’s age
requirement fits the ends to be achieved, the outcome here would likely be different.”); United
States v. Bullock, No. 3:18-CR-165-CWR-FKB, 2023 WL 4232309, at *1–2 (S.D. Miss. June 28,
2023) (criticizing the Bruen decision and originalism more broadly but concluding that the Second
Amendment forbids disarming individuals with felony convictions).
The Holden case may even be an example of what Professor Brannon Denning refers to as
judicial “uncivil obedience,” where the court applies the letter of the Bruen decision to display its
breadth. Brannon P. Denning, Can Judges Be Uncivilly Obedient?, 60 W
M. & MARY L. REV. 1, 7
(2018) (describing a phenomenon in which lower courts “press the logic of Supreme Court
opinions to their limits, applying them in potentially far-reaching and disruptive ways with a view
to critiquing them and perhaps affecting the future direction of Supreme Court doctrine”).
Bullock might also fall in that camp; I am less sure Quiroz or Worth should be so classified.
far casts serious doubt on Bruen’s assertion that its test is more
“administrable” than the two-part framework it replaced.
366
On top of these background concerns with the test, courts have
faced practical obstacles. For example, even before engaging Bruen’s
two-part test, lower courts do not agree about the threshold question
of when the test is even triggered. That disagreement concerns, at least
in part, Bruen’s effect on some of Heller’s categorical carve-outs.
367
In
Heller, the Court asserted that its decision did not call into question a
host of “presumptively lawful” regulations the majority deemed
“longstanding.”
368
Those included prohibitions on firearm possession
by “felons and the mentally ill,” certain place-based restrictions, and
“laws imposing conditions and qualifications on the commercial sale of
arms.”
369
Because Bruen only expressly invoked the place-based
restrictions, litigants have argued that the decision undermined any
presumption the other laws might have had to constitutionality.
370
One
district court has expressly held as much, writing that “this is where
Bruen conflicts with Heller.”
371
Other courts, by contrast, have said
Bruen did not overrule Heller’s presumption,
372
while still others have
suggested that such presumptively lawful regulations instead fail at the
first step of Bruen’s new test.
373
Once courts reach the test, each step
has proved difficult to apply.
1. The Plain-Text Prong. Despite their confusion about when the
test is triggered, there is broad agreement among courts that “simply
because a law involves firearms does not mean that the Second
Amendment is necessarily implicated.”
374
But in actually assessing the
first step of Bruen’s test—whether the “plain text” covers the
challenged activity—courts have disagreed over the nature of the
inquiry.
375
As noted above, because Bruen itself concerned a claim to
constitutionally protected conduct,
376
it stated that the first prong
assesses whether “the Second Amendment’s plain text covers an
individual’s conduct.”
377
Some courts have thought that statement
means the plain-text prong only concerns conduct, not whether the
person claiming a right or the weapon they claim protection for is
covered by the plain text.
378
Others have read Bruen’s plain-text prong
to require coverage for the person, weapon, and conduct, as the better
reading suggests.
379
The narrow reading—that the plain-text prong only
asks about conduct—would mean many more claims get presumptive
protection, like nearly all types of weapons and all manner of
challengers.
In assessing who bears the burden at this first stage, courts have
not been entirely clear. None expressly said that the government bears
the burden at this stage. One court, though, has suggested the
government bears the burden of proving justifications that would
exclude a person from plain-text coverage.
380
By contrast, several
courts have instead placed the onus on the challenger to prove plain-
text coverage,
381
but whether this translates to a direct holding about
the burden in Bruen’s first step is complicated by the fact that some of
these came up in a procedural setting—a request for a preliminary
injunction—that may diverge from merits burdens.
382
Another court
rejected a criminal defendant’s challenge at step one, suggesting he
failed to satisfy his burden because his “historical evidence [was] too
sparse and too weak to justify recognizing an unwritten right to
commercially sell arms.”
383
At least one plaintiff has acknowledged that
the challenger bears the burden at the first step.
384
Still, courts have not
progressed much further in reaching a consensus about who bears the
burden at step one.
385
When they assess the amendment’s words, courts have disagreed
about just what conduct, people, and arms the plain text protects. With
respect to conduct, some courts have been stingy, refusing to find
activities that may be “implicit”
386
in the right to keep and bear arms
(like manufacturing them
387
or selling them
388
) to be included in the
plain text of “keep and bear.”
389
Others have been more generous,
finding conduct that is a “precursor”
390
or “condition precedent”
391
to
enumerated activity (like acquiring a gun
392
or manufacturing one
393
) to
fall within the plain text.
394
Some courts have even made astonishing
claims about the plain text, such as that it protects “the . . . right to
‘bear’ arms for self-defense on private property outside of [one’s] own
home”
395
or that it protects “carrying a concealed handgun for self-
defense in public in nursery schools and preschools.”
396
Nothing in
Bruen provides guidance on how to answer these interpretive
questions, and the mounting literature on the new textualism at the
Supreme Court highlights that the meaning of a written instrument is
rarely “plain.”
397
As with conduct, courts have disagreed about what people and
arms fall within the “plain text.” In assessing categories of people-
based prohibitions, lower courts have issued diverging decisions about
whether undocumented immigrants,
398
eighteen- to twenty-year-
olds,
399
unlawful drug users,
400
individuals with felony convictions,
401
and those facing felony charges are part of “the people.”
402
With respect to covered “arms,” courts have so far agreed that
machine guns are not covered because they are dangerous and
unusual
403
while disagreeing about whether large-capacity magazines
404
and firearms with obliterated serial numbers
405
fall within the plain text.
Again, Bruen does not make any of these conflicting decisions
obviously right—or obviously wrong. Indeed, across a span of different
areas of law, the textualist Justices themselves “are frequently in
disagreement—not merely about how to apply text-based interpretive
principles to resolve hard cases, but also about what the relevant rules
are.”
406
A bare injunction to apply the “plain text” papers over all the
interpretive debates that help determine the answer. As one court
pointed out after sifting through several plain-text rulings in Second
Amendment cases, “The diverging conclusions reached by the
opposing camps largely depends upon the level of generality
employed.”
407
approach.
409
They have thus applied a dual-track test to judge the
closeness of similarity required based on the social problem at issue.
410
Other courts, however, state or assume that analogical reasoning
takes place no matter the nature of the social problem.
411
Still others
suggest that the “more nuanced” approach Bruen calls for is not about
reasoning by analogy but about how flexibly to view tradition. The
nuanced approach, said one judge, “essentially” requires the court to
“broaden its conception of what constitutes an ‘analogue’ and focus its
attention on the justification for, and burden imposed by, it.”
412
Bruen’s
own ambiguity helped create this confusion, as it first described its test
as calling for the use of analogies in the “nuanced” class of cases, then
deemed the case before it a straightforward and not nuanced one, but
then nonetheless searched for analogies when it applied the test to New
York’s law.
413
When the nature of the “societal problem” meant to be addressed
by contemporary and historical laws is viewed as important, lower
courts also diverge in deciphering it. Some courts view the matter at a
high level of abstraction—treating all regulations as serving the same
broad purpose of reducing gun violence.
414
Others, even when they
describe the problem a modern law addresses more narrowly, are apt
to find that the same problem existed in the Founding era, no matter
how implausible that may be.
415
By treating the problem as continuing
across time, these courts fault the government for failing to find close
precedent in the historical record.
416
Indeed, some courts appear to put the government on two horns
of a dilemma with respect to the societal problem. If the government
seeks to draw analogies with historical laws like surety statutes that
addressed a societal problem common to our forebears’ and today’s
communities, the court might use that against them. As one judge said,
“by analogizing” between modern and historical laws that approach
the same problem using different methods, “the Government
undercuts its argument, thus taking the wind out of its own sails.”
417
But
if the government underscores the differences across time, it might also
undermine any argument for the similarity between an old law and a
new one.
418
Beyond those problems with conceptualizing the inquiry, when
courts do reason by analogy, they confront inevitable level-of-
generality problems.
419
“The critical question lower courts face,” one
court said, “is how strictly should Bruen be followed?”
420
Unfortunately, it lamented, “how strict—or loose—an interpretation
Bruen requires hasn’t been clarified, leaving important questions”
unanswered.
421
“The unique test the Supreme Court announced in
Bruen,” said another court, “does not provide lower courts with clear
guidance as to how analogous modern laws must be to founding-era
gun laws,” causing “disarray among the lower courts when applying the
new framework.”
422
As commentators have long underlined, “[a]ny
analysis premised on a historical inquiry can operate in radically
different ways based on the level of generality taken.”
423
One recent
study, for example, highlighted a “staggering range of conclusions by
originalists about how to choose a level of generality at which to seek
the original meaning.”
424
In post-Bruen cases, courts have occasionally
been grudging in finding a historical law analogous. The Fifth Circuit,
for example, dismissed historical laws that barred firearm possession
based on group identity because the federal law it confronted was
narrower than those general laws.
425
One district court similarly
rejected a proposed analogue because the historical law was more
comprehensive than the more limited modern law it reviewed.
426
Another court, after chronicling laws establishing the permissibility of
barring guns in schools and colleges, said—without further
explanation—that it still could not “find these historical statutes
analogous to a prohibition on ‘summer camps.’”
427
Some courts, in
short, speak in the language of analogical reasoning but actually
demand a historical doppelganger.
Other courts have disclaimed an approach that “demands too
much specificity in the historical tradition.”
428
For instance, one court
said that “it suffices to show that analogous statutes . . . were known to
the American legal tradition.”
429
Another upheld a law on the ground
that there was “sufficient evidence which intimates an understanding
at the time of ratification” that certain groups could be disarmed.
430
Still another found “that the government’s reliance on general
historical tradition is sufficient to satisfy its burden.”
431
Once again,
nothing in Bruen justifies or condemns any one of these inconsistent
levels of abstraction. A prominent proponent of traditionalist
interpretation argues that debates over narrowing or broadening a
tradition are a feature, not a bug, of the method, but it is hard to see
the value in forcing lower courts to make these calls in the first instance
without any Supreme Court guidance.
432
In searching for the existence of a historical tradition,
433
courts
have also produced inconsistent and unpredictable standards. The
number of laws, coverage area, and age all appear to matter but not
always in clear and certainly not in uniform ways. First, courts do not
agree on the number of historical laws required. As one court asked:
[H]ow many analogues are necessary? While some of the language in
Bruen suggests the answer is one—the Supreme Court repeatedly
uses the singular “analogue” when discussing the required evidence—
at other times the Supreme Court suggests two or even three
historical analogues are not enough. Each district court must
determine whether the proposed analogues are analogue-enough, or
if they require the presence of the analogue cavalry to carry the day.
434
Another court noted that Bruen struck down a law enacted in
seven jurisdictions stretching back a century and stated that “[i]f such
was a failure of analogs or tradition in Bruen, the State’s argument
must also fail here.”
435
One more court found unconvincing that the
record “establishes (at most) that . . . approximately twenty
jurisdictions (of the then 45 states) enacted laws.”
436
Others have
balked at that demand and “decline[d] to adopt a ‘majority of the
states’ standard,” stating instead that three analogous historical laws
are sufficient to meet the government’s burden.
437
In short, while the
number of laws can be dispositive, there is no consistency in what
courts require. Indeed, one court said an entirely different search
applied to questions about sensitive-place laws, which that court said
Bruen had already decided was a traditional kind of regulation.
438
Second, concerning coverage area, at least one court has read
Bruen to require separate inquiries into (1) whether history shows a
well-established tradition, which it said requires counting the number
of jurisdictions with such laws, and (2) how representative those laws
were, which requires assessing the population they governed.
439
Plus,
for that court, while three state laws might be enough, territorial and
local laws were discounted.
440
And when it came to coverage area, that
court was “confident” that, under Bruen, laws governing “less than 15”
percent of the population “would not suffice to be representative of the
Nation.”
441
While the court did not specify what percentage of the
population would be enough, it suggested a law from a “state that
contained over 20 percent of the national population at the time,
present[ed] a credible case for representativeness.”
442
Other courts
have recognized that the new test appears to require courts to
“consider where, along with when and how many, when reviewing
proposed historical analogues.”
443
Third, with respect to age, courts have not been uniform. Despite
Bruen’s express reservation of the question, many lower courts have
functionally treated 1791 as the only date that matters, discounting laws
enacted around the time of the Fourteenth Amendment.
444
“If this
were not the case,” observed one court, “the Second Amendment
could mean one thing vis a vis federal laws, and entirely something else
vis a vis state and local laws.”
445
Bruen had, of course, entertained that
argument, but still said it was not deciding the question.
446
Most lower
courts discount laws “from the 17th or 20th centuries” as too remote.
447
One rejected as insufficiently illuminating laws enacted “near the last
decade of the 19th century.”
448
Another imposed what the judge
himself described as an “arbitrary” end date of 1888.
449
Still another
dismissed as too late a law dating to 1836 (incidentally, the year the
Second Amendment’s author, James Madison, died).
450
By contrast, an
Eleventh Circuit panel expressly held that, when reviewing a state law,
“the more appropriate barometer is the public understanding of the
right when the States ratified the Fourteenth Amendment and made
the Second Amendment applicable to the States.”
451
As with the search for the existence of a tradition, some courts
have been exacting in requiring it to be of long (but unspecified)
endurance. Those courts have said it is noteworthy that Bruen
conducted a “search for an enduring tradition.”
452
The very definition
of the term, proclaimed that court, “requires ‘continuity’” because
tradition is “the opposite of one-offs, outliers, or novel enactments.”
453
Discounting laws the state invoked to support its regulation in that
case, the court said those historical laws were insufficient because
“[t]he cited enactments are of unknown or limited duration, and the
State has not met its burden to show endurance (of any sort) over
time.”
454
The court rejected the argument that “endurance is not an
important consideration” because, it said, Bruen searched for one
“[a]nd the Court gave little weight to territorial enactments that, like
the territories themselves, were ‘short lived.’”
455
But that court, like
Bruen, gave no guidance on how long a law had to last to qualify as a
relevant precursor.
Few courts have expressly relied on whether a law was consistently
enforced to judge whether it constituted an appropriate analogue.
456
But some have noted a law’s evolution as a possible reason to give less
weight to restrictive laws. For example, in striking down a state law
barring guns in churches and places of worship, one court was
unimpressed with historical laws doing the same, at least in part
because “[a]s to Georgia and Missouri, the enactments apparently
evolved in any event, to allow church leaders to decide the issue for
their own churches.”
457
An appellate panel cited the fact that laws had
evolved years or decades after ratification to discount their
significance.
458
One district court, however, rejected the notion that
later evolution undermined the weight of a proposed analogue.
459
“By
design, legislatures may alter the form and substance of laws—so long
as they remain consistent with the Constitution. The unsurprising fact
that the form of gun laws has changed over time shouldn’t by itself cast
doubt on their constitutionality . . . .”
460
However, the early returns show disagreement not only about how to
apply the test to particular laws but also over fundamental questions
about when it applies at all and what it requires the government to
show in each case. That kind of disagreement is unlikely to be resolved
by future circuit court decisions, which will likely only continue
creating divergent precedent in their respective jurisdictions.
462
IV.
RESPONDING TO BRUEN & BEYOND
This Part begins a conversation about initial tools that courts,
elected representatives, and engaged citizens can use to work within
Bruen’s new standard. In doing so, it generates arguments that, by
extension, might be used in other rights contexts in which the Court
has demanded a resort to historical inquiry.
463
A. Judicial
Lower court judges cannot, of course, simply ignore Supreme
Court decisions that require them to undertake complex endeavors and
make difficult judgment calls.
464
But their opinions can provide proof
that a method the Court thought would be administrable or consistent
is proving to be anything but.
465
Courts can also highlight the costs to
institutional resources and judicial capacity in applying a new
method.
466
By doing so, these courts can provide crucial data points for
the future, when the Supreme Court might come to rethink whether
the test Bruen mandated should be continued, curtailed, refined, or
replaced altogether.
467
Several lower courts since Bruen have powerfully critiqued the
Court’s method, which may be valuable to the Justices when and if they
revisit the test, perhaps as early as in the upcoming case United States
v. Rahimi.
468
But these judges’ proposed solutions for dealing with the
problems the test generates may be even more immediately influential
to other lower court judges. In confronting a Second Amendment
challenge to the federal law barring firearm possession for individuals
with felony convictions, the court in United States v. Bullock
469
underscored concerns about adversarial history and suggested that
“[a]n expert may help the Court identify and sift through authoritative
sources on founding-era firearms restrictions.”
470
It asked the parties
for supplemental briefing on whether it should appoint a consulting
historian pursuant to Federal Rule of Evidence 706, which expressly
permits a judge to appoint “any expert.”
471
Other judges have followed
a similar course.
472
But not all courts have been sanguine about the prospect of
appointed historians. One court thought it would prove impractical to
appoint an expert in the thousands of federal gun prosecutions each
year that may now be open to challenge under Bruen.
473
Another
thought the adversarial method was sufficient; the government can
produce analogues, said that trial court, and “judges appear uniquely
qualified at interpreting the meaning of statutes.”
474
Contra the critics, there seems little downside to appointed
historians when they can be found—and much upside. Two decades
ago, lawyer-historian Jonathan Martin argued that Rule 706 could help
mitigate problems of dueling expert historians and the distorting
effects on historical methods when historians serve the ends of one
party in litigation.
475
Litigating on the payroll of one party “compels
historians to generate uncharacteristically categorical and unequivocal
assertions.”
476
But professional history generally eschews such
confidence. “The complexity of the past, the indeterminacy of the
historical record, and the contingency of human experience push
historians toward a method that produces knowledge that is necessarily
multivalent, subtle, and revisable.”
477
An appointed historian can help
inform a judge about how complicated and contested the historical
landscape can be. But even when they do not appoint historians, judges
can and must closely inspect the claims of expertise by individuals the
parties hold forth as experts.
478
In doing so, judges can lessen the
chances of inscribing one-sided history into constitutional law.
479
Beyond interrogating and appointing experts, courts can also fill
in details that Bruen left open in a way that preserves legislative
discretion. On the existence of tradition, courts can raise the level of
abstraction,
480
relax the required analogousness, identify additional
metrics for relevant similarity, and underscore the novelty of today’s
social problems and the monumental technological changes since the
Founding—all consistent with Bruen’s commands. They can observe
the paucity of records relating to historical enforcement as both a
practical and theoretical obstacle to mandating the government
produce such information.
481
Most of all, they can highlight that the
bare absence of a similar law in the past should not doom legislation
today where other evidence suggests the Founding generation would
not have considered such a law beyond the state’s police power. As one
lower court judge said, “[I]t would make no sense to divine
constitutional significance from non-existent legislation concerning
non-existent problems.”
482
If silence is going to bind, courts should be
ecumenical in searching for history before declaring the record void.
As another put it, “[T]he court must, based on the available historical
evidence, not just consider what earlier legislatures did, but imagine
what they could have imagined.”
483
Finally, courts can engage in the time-honored practice of
“narrowing Supreme Court precedent from below.”
484
As Professor
Richard Re argues, that “approach would acknowledge that the
precedent must remain binding in circumstances where it unmistakably
applies, while also reducing the precedent’s scope of application in
cases of precedential ambiguity.”
485
Professor Re, in fact, uses the lower
court case law after Heller as an example of legitimate narrowing from
below. The Court’s decision there was ambiguous, he argued, and thus
“even if lower courts have not adhered to the best reading of Heller,
they have interpreted the decision reasonably.”
486
Like Heller, Bruen has “left vast room for interpretation.”
487
The
Court provided little clarity on a multitude of issues now arising in its
aftermath. One could read parts of the developing post-Bruen case law
so far as engaged in narrowing from below. In the scores of federal
court decisions upholding the bar against felon firearm possession,
even for nonviolent felons, courts have often held that Bruen left intact
prior case law affirming the ban’s constitutionality—even though the
Court conspicuously failed to include the same affirmations of the
felon ban that Heller and McDonald had.
488
One court noted the
interpretive ambiguity over Bruen’s scope and concluded, à la
Professor Re, that “a reasonable interpretation of Bruen is that it does
not obfuscate the requirement that, as a threshold matter, to receive
Second Amendment protection, one must first and foremost be law-
abiding.”
489
B. Legislative
Just as there are judicial responses, legislators have tools to work
with as well. To be sure, Bruen limits legislatures more than Heller
had.
490
But the decision does not leave lawmakers without options for
enacting many gun laws their constituents favor. The case should,
however, change how officials legislate concerning guns.
491
In
particular, legislatures enacting gun regulations in the post-Bruen
world should take care to create a legislative record that supports any
new law. Optimally, that record should contain four types of findings
or announcements: first, the precise purpose of the law (that is, Bruen’s
why factor); second, the anticipated burden on protected interests (that
is, Bruen’s how factor); third, the specific social problem to which the
law is directed; and fourth, the historical tradition or support for the
law.
492
The first two types of evidence are directly relevant to how a court
will review the law’s constitutionality.
493
While government litigators
can debate those issues in court, even without express legislative
findings, an established record will only help support the efforts to
defend a law. Through hearings, committee reports, testimony from
experts, and other means, legislatures can describe the goals of the
legislation and explain how the law leaves open sufficient avenues for
the exercise of constitutionally protected conduct.
494
It is not clear
whether courts will defer to those findings,
495
but evidence- and expert-
backed conclusions about the justifications for the law and the
projected impact on Second Amendment conduct should at least
bolster the government’s arguments—and make it more difficult for
trial courts to substitute their own conjectures about a given law.
The last two categories address aspects that are relevant to how
the Bruen test is applied in practice.
496
Lower courts, so far, have often
guessed at the societal problems a law means to address, often
characterizing it at a high level of generality and missing nuance that
might matter. For example, one court reviewing a challenge to the
federal law barring firearm possession for those subject to a domestic-
violence restraining order tersely concluded that “[d]omestic violence,
or violence against anyone for that matter, is not just a modern
problem.”
497
And because the problem had historically been addressed
differently, the contemporary regulation was immediately suspect.
498
Detailing the precise social problem a modern law addresses—like the
myriad ways we now understand domestic abusers to wield weapons as
tools of coercion and intimidation, as well as to inflict physical harm—
can support arguments that a given law should be upheld.
Similarly, a legislature’s statement that it intends to tap into a
specific historical tradition of firearms regulation can help support
arguments for a law’s constitutionality. Modern legislatures can begin
the quest for analogies that Bruen requires in court by highlighting the
type of tradition it has relied on. This record might guard against a
court constricting the analogical reasoning it is willing to deploy too
narrowly—or at the very least expose that the choice of how strictly or
narrowly to draw the analogy is not a neutral, adjudicative one.
499
This
Michael A. Helfand, Identifying Substantial Burdens, 2016 U. ILL. L. REV. 1771, 1790 (2016)
(discussing different ways that courts can assess the substantiality of burdens on protected
conduct in the religion context).
495. Some certainly will not. See Koons v. Reynolds, No. 22-7464, 2023 WL 128882, at *7–8
(D.N.J. Jan. 9, 2023) (dismissing evidence about the legislature’s rationale for enacting a law on
the grounds that Bruen forbids consideration of the harms guns can cause).
496. See supra Part I.B.
497. United States v. Perez-Gallan, No. 22-CR-00427-DC, 2022 WL 16858516, at *10 (W.D.
Tex. Nov. 10, 2022).
498. Id.
499. See Han, Autobiographical Lies, supra note 219, at 88. As Han argues,
There is no purely ‘neutral’ means of historical analysis. A court can characterize the
speech in question in multiple ways and craft analogies to ‘longstanding tradition’ at
varying levels of generality and abstraction. In the end . . . it is a court’s sense of these
values that will influence how it conducts the historical analysis.
country’s historical tradition provides fertile ground for legislatures
today to regulate in the public interest. “The sovereign imperative to
regulate weapons in the name of public peace and public order is an
ancient one, even as the prerogative—and the harms that the display
of weapons can inflict—evolves with the structure of society itself.”
500
Legislatures and advocates can, to be sure, continue to critique
Bruen’s test with a view toward future changes in its standards. In the
meantime, they can use Bruen’s test and rely on the historically
established right to protect their citizens through law. “For centuries,”
write Professors Joseph Blocher and Reva Siegel, “gun laws have
ensured citizens’ sense of safety, their trust in public institutions, and
their ability to engage in constitutionally salient conduct like
education, speech, assembly, and voting.”
501
Citizens today can, in
short, advocate for laws designed to protect interests that the common
law and laws of the early Republic have always sought to protect:
public peace and safety. They can do so, not in spite of Bruen, but in
conformance with it. If history and tradition dictate the scope of
regulatory authority today, properly viewing the breadth of that
authority means recognizing how broadly our forebears understood
their authority to guard against the harms to civic life from unregulated
private arms.
Therefore, even accepting Bruen’s assertion that the 1791 interest-
balancing between rights and regulation controls,
502
contemporary
regulations can seek to maintain the initial balance struck when
firearms were less ubiquitous and less lethal. For example, Professor
Darrell Miller advocates an “equilibrium-adjustment theory” for
Second Amendment doctrine that necessarily requires regulatory
adjustments as the risks of harm from technological and social changes
increase.
503
If, as Heller and Bruen emphasize, the balance between
rights and harms was set at the Founding, it is all the more important
for legislatures enacting gun laws today to emphasize that stricter laws
can maintain, not undermine, the balance those generations
Id.
500. Joseph Blocher & Reva B. Siegel, When Guns Threaten the Public Sphere: A New
Account of Public Safety Regulation Under Heller, 116 N
W. U. L. REV. 139, 172 (2021).
501. Id. at 197.
502. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 n.7 (2022) (“Analogical
reasoning requires judges to apply faithfully the balance struck by the founding generation to
modern circumstances . . . .”).
503. Miller, Equilibria, supra note 189, at 244.
established.
504
Deferring to and maintaining this initial interest-
balancing is not only consistent with Bruen’s injunction but also
consistent with the sort of review the Court has commanded in other
contexts that rely on historical inquiry.
505
C
ONCLUSION
“[I]n requiring courts to strike down gun regulations even when
they might be narrowly tailored to accomplish the most compelling of
governmental interests,” Professor Khiara Bridges argues, Bruen “has
rendered the right to bear arms the most protected of rights in the
Constitution.”
506
The Court’s historical test has the potential to
significantly expand the Second Amendment’s scope. No matter how
compelling the state’s interest, no matter how narrowly tailored its
regulation, Bruen’s new method appears to dictate that a modern gun
law cannot stand without adequate grounding in the distant past. As
one lower court said, “Bruen did not . . . erase societal and public safety
concerns—they still exist—even if Bruen’s new framework prevents
courts from making that analysis.”
507
Bruen continues in a line of cases that increasingly makes history
decisive.
508
But it leaves fundamental questions about the basic details
unanswered. Applied too stringently, it would require that tentative,
nuanced, and multifaceted interpretations of the past be flattened to
notch narrow, short-term litigation victories today.
509
And without
further revision, it is a recipe for the kind of simmering chaos already
stewing in the lower courts.
510
That should alarm Bruen’s defenders.
After all, according to the Supreme Court, an “important
consideration in deciding whether a precedent should be overruled is
whether the rule it imposes is workable—that is, whether it can be
understood and applied in a consistent and predictable manner.”
511
Without significant refinement by the courts of appeals and a
uniformity among them that seems elusive, Bruen’s method will
continue proving unworkable in practice. The Court itself will have an
opportunity to address the problematic features of the test when it
hears United States v. Rahimi.
More worrisome than its open texture, however, is the fact that
the decision deems historical silence an important standard without
inquiring into the reasons for legislative lacunae. Without offering
justification for doing so, Bruen elevates mere unregulated conduct to
the status of an inviolate constitutional right. Justice Oliver Wendell
Holmes once called it “revolting to have no better reason for a rule of
law than that it was laid down in the time of Henry IV.”
512
How much
more disturbing, then, to discredit a rule of law because it was not laid
down in a bygone era. Lower courts and legislators cannot alter
Bruen’s test, but they can adjudicate and legislate in a way that
preserves a role for contemporary citizens’ authority to engage in self-
defense through law.
513
Although Bruen frontloads history more than many other cases, it
is not an isolated decision. The modern Supreme Court frequently
invokes history as a basis for its decisions.
514
One result of the historical
turn in a host of recent cases is to place greater authority in the federal
courts, with the Supreme Court firmly planted at the apex of American
policymaking. As Professor Mark Lemley describes, whatever the tools
it has used to reach its decisions in the most recent terms, “[t]he
common denominator across multiple opinions in the last two years is
that they concentrate power in one place: the Supreme Court.”
515
Professor Lemley’s conclusion suggests that Bruen’s indeterminacy
may not be a complete oversight. After all, the more indeterminate the
test, the more authority the Court retains to reach whatever conclusion
it wants. But though the Supreme Court may desire to sit as a
superlegislature over nationwide gun policy, lower courts, legislators,
and citizens need not easily cede the people’s ultimate authority.