Notre Dame Law Review Notre Dame Law Review
Volume 99Issue 4 Article 5
8-14-2024
The General-Law Right to Bear Arms The General-Law Right to Bear Arms
William Baude
University of Chicago Law School
Robert Leider
Antonin Scalia Law School, George Mason University
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William Baude & Robert Leider, The General-Law Right to Bear Arms, 99 Notre Dame L. Rev. 1467 (2024).
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TH E GE NE R AL-L A W RI GH T TO BE A R A R MS
William Baude & Robert Leider *
INTRODUCTION ................................................................................. 1468
I. THE GENERAL-LAW APPROACH TO THE SECOND AMENDMENT .... 1470
A. Nineteenth-Century State Courts and the Development of
General Law ..................................................................... 1471
B. The Supreme Court Adopts the General-Law Approach ......... 1475
C. Heller ................................................................................ 1482
II. READING BRUEN ........................................................................... 1485
A. Bruen as a Return to the General-Law Approach ................ 1486
B. Understanding the General-Law Approach to the
Second Amendment............................................................ 1488
C. Bruen and Analogical Reasoning ....................................... 1492
D. Hard Cases ......................................................................... 1496
III. BRUEN IN THE LOWER COURTS ................................................... 1498
A. Arms Protected by the Second Amendment ............................ 1498
1. Semiautomatic Rifles Designated
“Assault Weapons” .................................................... 1498
2. Dangerous Knives and Nunchucks ........................... 1503
3. Prohibition Versus Regulation of Protected Arms ... 1504
B. Sensitive Places ................................................................... 1506
IV. RAHIMI AND BEYOND .................................................................. 1509
CONCLUSION ..................................................................................... 1514
© 2024 William Baude & Robert Leider. Individuals and nonprofit institutions may repro-
duce and distribute copies of this Article in any format at or below cost, for educational
purposes, so long as each copy identifies the authors, provides a citation to the
Notre Dame Law Review, and includes this provision in the copyright notice.
* Harry Kalven, Jr. Professor of Law, University of Chicago Law School.
** Assistant Professor of Law, Antonin Scalia Law School, George Mason University.
The authors thank Eric Claeys, Adam Mossoff, Haley Proctor, and Richard Re for helpful
comments on this draft, as well as the participants at a workshop at the George Washington
University Law School. Will Horvath, James Marmaduke, and Georgios Sarris provided
helpful research assistance.
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INTRODUCTION
New York State Rifle & Pistol Ass’n v. Bruen
1
marked an important
methodological return to original legal principles. The legal issues in
the case were whether the right to bear arms included the general right
to carry handguns outside the home for self-defense, and if so, whether
New York could restrict the carrying of handguns for self-defense to
only those residents who had a special need for self-defense (“proper
cause”). In answering these questions, however, the Court also made
broad pronouncements about the correct way to decide the scope of
the right to keep and bear arms, criticizing the methodological ap-
proach that had become common in the lower courts. Specifically, the
Court emphasized the role of history and tradition, rather than what it
called “interest balancing,” and then proceeded to analyze the history
of the regulation of arms bearing for eighteen pages.
2
This was an attempt at an overdue doctrinal course correction.
The Supreme Court first recognized an individual right to bear arms
for self-defense in District of Columbia v. Heller.
3
But since Heller, lower-
court judges had been “narrowing [Heller] from below.”
4
For example,
in the name of intermediate scrutiny, lower courts had upheld laws
that, in essence, prevented most citizens in those jurisdictions from ex-
ercising the right to bear arms at all.
5
Lower courts have since understood Bruen’s text, history, and tra-
dition test to require them to survey historical gun laws to determine
whether modern laws have analogues in early American practice.
6
And
this presents a problem. The Framing era had few gun laws, and thus,
1 142 S. Ct. 2111 (2022).
2 Id. at 2129, 2138–56.
3 554 U.S. 570 (2008).
4 Richard M. Re, Narrowing Supreme Court Precedent from Below, 104 GEO. L.J. 921, 962,
961–63 (2016).
5 See Gould v. Morgan, 907 F.3d 659, 674 (1st Cir. 2018); Drake v. Filko, 724 F.3d 426,
440 (3d Cir. 2013) (alternative holding); Woollard v. Gallagher, 712 F.3d 865, 882 (4th Cir.
2013); Kachalsky v. County of Westchester, 701 F.3d 81, 101 (2d Cir. 2012). For historical
approaches reaching the same result, see Drake, 724 F.3d at 432–33 (finding the regulation
long-standing); and Young v. Hawaii, 992 F.3d 765, 813 (9th Cir. 2021) (conclusion after
extensive historical analysis), vacated, 142 S. Ct. 2895 (2022) (mem.).
6 See, e.g., Lara v. Comm’r Pa. State Police, 91 F.4th 122, 135 (3d Cir.) (examining
analogues to laws that prohibited those under 21 years of age from carrying firearms), reh’g
denied, 97 F.4th 156 (3d Cir. 2024); United States v. Daniels, 77 F.4th 337, 345–348 (5th Cir.
2023) (surveying drug and alcohol laws), petition for cert. filed, 92 U.S.L.W. 3085 (U.S. Oct.
10, 2023) (No. 23-376); Range v. Att’y Gen. U.S., 69 F.4th 96, 105 (3d Cir. 2023) (examining
laws allegedly analogous to the felon-in-possession ban), petition for cert. filed sub nom. Gar-
land v. Range, 92 U.S.L.W. 3084 (U.S. Oct. 5, 2023) (No. 23-374); Miller v. Bonta, No. 19-
cv-01537, 2023 WL 6929336, at *19 (S.D. Cal. Oct. 19, 2023) (surveying laws allegedly anal-
ogous to modern assault weapons bans), appeal docketed, No. 23-2979 (9th Cir. argued Jan.
24, 2024); infra notes 193–95, 235.
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few analogues from which to draw. Meanwhile, judges also complain
that they are not historians, even turning to expert testimony to apply
the Second Amendment after Bruen.
In this Article, we argue that Bruen’s intended methodological
shift has been widely misunderstood by the bench and bar.
7
This has
led to confusion and misapplication in the lower courts, as well as
much scholarly criticism of the test that is, we think, misdirected. As
we will explain, Bruen calls for a form of legal originalism, applying a
classical view of fundamental rights as a form of unwritten customary
law. This is consistent with the text and history of the Constitution and
leads to results that are less mechanical and more sensible than many
lower courts have thought. Understanding Bruen’s methodology re-
quires three basic legal concepts: original-law originalism, constitution-
alization of preexisting rights, and the general law.
Original-law originalism maintains that our law today is a form of
originalism.
8
Like all forms of originalism, this looks to the past for
evidence of today’s constitutional law. Original-law originalism focuses
more specifically on the law of the past. It holds that our law today is
“the Founders’ law, as it’s been lawfully changed.”
9
This means that
our law must trace a legal pedigree to the law of the Founding and its
own rules of legal change.
The constitutionalization of a preexisting right means that some-
times, perhaps often, the Constitution’s reference to a legal right must
be understood by learning the historical customary law that defined
and governed the right before its codification. Because the Constitu-
tion was not creating or defining these terms for the first time, but ra-
ther using the legal terminology and legal infrastructure of the day,
one cannot entirely understand these rights just by parsing their literal
meaning. The “Privilege of the Writ of Habeas Corpus,”
10
to take a
simple example, should be understood in light of centuries of law
about the writ, not only by using a Latin-English dictionary to learn
7 See Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment Ad-
judication, 133 YALE L.J. 99, 103 (2023); Jacob D. Charles, The Dead Hand of a Silent Past:
Bruen, Gun Rights, and the Shackles of History, 73 DUKE L.J. 67, 78 (2023); see also Randy E.
Barnett & Lawrence B. Solum, Originalism After Dobbs, Bruen, and Kennedy: The Role of
History and Tradition, 118 NW. U. L. REV. 433, 462–72 (2023) (correctly recognizing Bruen’s
use of history as originalist, though understanding its methodology differently than we do
here).
8 William Baude & Stephen E. Sachs, Grounding Originalism, 113 NW. U. L. REV. 1455,
1457–58 (2019). There are both positive arguments for this form of originalism, see id. at
1463–68, 1477–78, and normative ones, see Jeffrey A. Pojanowski & Kevin C. Walsh, Enduring
Originalism, 105 GEO. L.J. 97 (2016), which for purposes of this Article we will bracket.
9 Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 HARV. J.L. & PUB. POL’Y
817, 838 (2015); see also Baude & Sachs, supra note 8, at 1457.
10 U.S. CONST. art. I, § 9, cl. 2.
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that “habeas” means “you have” and “corpus” means “the body.” But
the same may be true for many less simple examples, ranging from the
right to due process, to the right to freedom of speech, to (indeed) the
right to keep and bear arms.
The general-law approach to rights means that the scope of these
preexisting rights was sometimes defined by unwritten law that was nei-
ther state common law nor federal common law. Rather the general
law—made famous by Justice Story’s opinion about commercial law in
Swift v. Tyson,
11
and then made infamous by Justice Brandeis’s opinion
in Erie Railroad Co. v. Tompkins
12
—was a form of common law shared
among Anglo-American jurisdictions, which could be expounded by
any of them, but controlled by none of them.
13
The general-law ap-
proach applied not just to the law merchant or the law of torts, but to
the fundamental rights of citizenship, and was an important part of the
law of the Founding,
14
as well as the original meaning of Section 1 of
the Fourteenth Amendment.
15
These three legal concepts overlap and reinforce one another in
important ways. The constitutionalization of preexisting rights means
that to understand the Constitution, we must understand the Consti-
tution’s legal background. Original-law originalism tells us that we are
bound by that original meaning of the Constitution, including the sur-
rounding law, not just the semantic meanings of the words. And the
general-law approach tells us what kind of surrounding law that was,
and how it might be applied over time to those bound by the Founders’
law today. While much of this apparatus was operating “under the
hood” in Bruen, it shows what the Court was trying to say, and how the
right to keep and bear arms should work today.
I. THE GENERAL-LAW APPROACH TO THE SECOND AMENDMENT
From its first major Second Amendment ruling in 1876,
16
the Su-
preme Court treated the Second Amendment as securing a preexisting
right to keep and bear arms. In doing so, it drew on a robust body of
state court decisions describing the general-law right to keep and bear
arms. By the time of Heller in 2008, the role of general law may have
11 41 U.S. (16 Pet.) 1, 19 (1842), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64
(1938).
12 304 U.S. at 78.
13 William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth
Amendment, 76 STAN. L. REV. 1185, 1190 (2024).
14 See id. at 1196–99. See generally Jud Campbell, General Citizenship Rights, 132 YALE
L.J. 611 (2023).
15 Baude, Campbell & Sachs, supra note 13, at 1222–25.
16 United States v. Cruikshank, 92 U.S. 542, 553 (1876).
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become forgotten or disfavored, but as we will explain, Bruen appears
to mark a return to the Court’s historical general-law method.
A. Nineteenth-Century State Courts and the Development of General Law
To understand Bruen we first have to go back in time. The initial
liquidation of the meaning and scope of the right to bear arms oc-
curred in over fifty years of state court decisions. When the U.S. Su-
preme Court first opined on the right to keep and bear arms in 1876,
it built on this established caselaw. These state cases consistently re-
vealed two important premises: that the right to keep and bear arms
was a preexisting right and that it should be analyzed in the mode of
the general law.
A preexisting right: There was widespread agreement among state
courts that the right to bear arms preexisted the adoption of either
state or federal constitutions. The Kentucky Court of Appeals, which
delivered the first important recorded decision on the right to bear
arms, said that “[t]he right existed at the adoption of the [C]onstitu-
tion.”
17
Subsequent courts agreed: The Supreme Court of Alabama
explained that state’s right to bear arms descended from the English
Bill of Rights, which was recognized “to be for the most part, in affir-
mance of the common law.”
18
The Supreme Court of Georgia de-
clared that state constitutions recognizing a right to bear arms “confer
no new rights on the people which did not belong to them before.”
19
And, on the eve of the Civil War, the Massachusetts Supreme Judicial
Court treated the Second Amendment “like similar provisions in our
own Declaration of Rights” as “declar[ing] a great general right.”
20
This idea that constitutional provisions codified preexisting rights
was within the contemporary mainstream of legal philosophy. Both
natural rights and unwritten customary, common-law rights were im-
portant backdrops against which the Framing generation understood
its legal system, and which it expected judges to take into account un-
der the law.
21
We will put aside the details of this legal philosophy for
present purposes except to observe that there are many sources de-
scribing the rights of self-defense and self-preservation as examples of
natural rights, and the right to keep and bear arms either as a related
17 Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 92 (1822).
18 State v. Reid, 1 Ala. 612, 615 (1840).
19 Nunn v. State, 1 Ga. 243, 249 (1846).
20 In re Op. of the Justs., 80 Mass. (14 Gray) 614, 620 (1859).
21 See generally STUART BANNER, THE DECLINE OF NATURAL LAW: HOW AMERICAN
LAWYERS ONCE USED NATURAL LAW AND WHY THEY STOPPED (2021) (explaining both the
use of natural law in early American law and its eventual decline).
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“auxiliary” common-law right
22
or as itself a natural right.
23
What is
important is that Anglo-American legal thought coalesced around the
idea that the right to bear arms, whether as a natural right or as a com-
mon-law right, preexisted the adoption of any constitution.
A general-law right: Additionally, courts generally recognized the
right to keep and bear arms as a general-law right. A general-law right
was a right common to Anglo-American legal systems rather than a
right that was the creation of local law.
Because courts viewed these various constitutional provisions as
declaring a preexisting general-law right, courts did not engage in a
purely textual analysis.
24
Courts described the right to arms codified
in legal instruments such as the English Bill of Rights, the Second
Amendment to the U.S. Constitution, and various state constitutions
as codifying the same preexisting right.
25
Thus, in the context of the
right to bear arms, courts treated the various state and federal consti-
tutional provisions as approximately equivalent, even when they were
codified in different terms. For example, in 1840, the Tennessee Su-
preme Court thought its constitutional provision, which guaranteed
that “the free white men of this State have a right to keep and bear
arms for their common defence” was “of the same general import” as
the Kentucky Constitution, which declared that “the right of the citi-
zens to bear arms in defence of themselves and the State shall not be
questioned.”
26
Because the right to bear arms was a general-law right, judges
looked across jurisdictional boundaries to understand the scope of the
right to bear arms. For this right, the most contested legal issue of the
22 E.g., 1 WILLIAM BLACKSTONE, COMMENTARIES 136, 139–40; see also id. at *139
(“[H]aving arms for [one’s] defence . . . is . . . a public allowance, under due restrictions,
of the natural right of resistance and self-preservation . . . .”).
23 See, e.g., Jud Campbell, Natural Rights, Positive Rights, and the Right to Keep and Bear
Arms, 83 LAW & CONTEMP. PROBS. 31, 36 (2020) (describing the natural-right view).
24 Cf. BANNER, supra note 21, at 23 (making the same point with respect to ordinary
statutes).
25 See, e.g., State v. Reid, 1 Ala. 612, 615 (1840) (English Bill of Rights and other states’
constitutions); Fife v. State, 31 Ark. 455, 458 (1876) (Second Amendment and state consti-
tutional provision “had a common purpose”); State v. Buzzard, 4 Ark. 18, 32 (1842) (opin-
ion of Dickinson, J.) (“The principle contained in the provision of our Constitution . . . is
precisely similar to that of the United States; it stands upon the same ground and is declar-
atory of the same right.”); id. at 34 (opinion of Lacy, J.) (treating Second Amendment and
Arkansas constitutional right to bear arms as fundamentally similar); Andrews v. State, 50
Tenn. (3 Heisk.) 165, 177 (1871) (Second Amendment and Tennessee Constitution codify
“the same rights”); Aymette v. State, 21 Tenn. (2 Hum.) 154, 156–57 (1840) (examining
English right and Second Amendment with Tennessee constitutional provision); English v.
State, 35 Tex. 473, 478 (1871) (treating Second Amendment and Texas Constitution’s right
to bear arms as similar).
26 Aymette, 21 Tenn. (2 Hum.) at 156, 160.
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nineteenth century was the constitutionality of laws prohibiting the
carrying of concealed weapons. On this issue, courts routinely looked
to guidance from other state courts, which had decided cases under
their own constitutional provisions.
27
This does not mean that the differences in language among the
various declarations of rights were entirely irrelevant. Whether viewed
as a natural right or as a general common-law right, the right to bear
arms was generic and underspecified until fixed into positive law. The
language used to concretize the right could affect its scope. The Eng-
lish Declaration of Rights protected only the rights of Protestants to
have arms, and even then only arms “suitable to their Conditions and
as allowed by Law.”
28
The effect of this language was that it “only al-
lowed persons of certain rank to have arms.”
29
The Tennessee Consti-
tution of 1835 lacked such qualifying language, providing instead that
“the free white men of this State have a right to keep and to bear arms
for their common defence.”
30
This language meant that in Tennessee,
unlike in Britain, “every free white man is of suitable condition, and,
therefore, every free white man may keep and bear arms.”
31
But the
limitation to free white men reflected that, in the antebellum Ameri-
can South, free blacks either lacked or did not possess the full measure
of the right to have arms.
32
Thus, although courts primarily relied on
custom and history to determine the scope of the right, the text used
to codify the right also provided additional detail about its scope in a
particular jurisdiction.
The general-law status of the right to bear arms was also evidenced
in how courts handled disagreements about the right. In a post-Erie
world, courts routinely conceptualize differences of opinion as simply
differences of local law. They consign a holding in a different jurisdic-
tion with which they disagree as the local rule that governs that
27 See, e.g., Reid, 1 Ala. at 620 (looking to the Indiana Supreme Court and commenting
that “[t]he difference between the terms used in the constitution of Indiana, and that of
our own State, is so entirely immaterial, that it could not possibly authorize a difference of
construction”); Fife, 31 Ark. at 459–60 (borrowing from Tennessee decisions); Nunn v.
State, 1 Ga. 243, 247–50 (1846) (examining decisions from Kentucky, Indiana, and Ala-
bama); Commonwealth v. Murphy, 44 N.E. 138, 138 (Mass. 1896) (explaining that court
decisions from Alabama, Arkansas, Indiana, Missouri, Tennessee, and Texas demonstrate
that the right to bear arms may be regulated); Andrews, 50 Tenn. (3 Heisk.) at 186 (exam-
ining decisions from Kentucky, Alabama, and Georgia).
28 Bill of Rights 1688, 1 W. & M. Sess. 2 c. 2.
29 Aymette, 21 Tenn. (2 Hum.) at 157.
30 TENN. CONST. of 1835, art. I, § 26.
31 Aymette, 21 Tenn. (2 Hum.) at 158.
32 Cf. State v. Newsom, 27 N.C. (5 Ired.) 250 (1844) (explaining that, under the North
Carolina Constitution, free blacks could be subjected to additional legislative restriction on
their right to bear arms).
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jurisdiction under its constitution, while adopting another rule for
their jurisdiction under their state’s constitution.
33
But this kind of
legal relativism is notably absent from nineteenth-century court deci-
sions on the right to bear arms. When courts disagreed, they did not
chalk up the disagreement to separate rights in different state consti-
tutions. They asserted, more strongly, that the other side got it wrong.
For example, in 1822, the Kentucky Court of Appeals invalidated
the state’s law prohibiting the carrying of concealed weapons. The
majority held that the law was unconstitutional because the right to
bear arms prevented the legislature from “diminish[ing] or im-
pair[ing] [the right] as it existed when the constitution was formed.”
34
The ruling was universally condemned. In 1840, the Alabama Su-
preme Court quoted the decision at length and explained why it
thought the majority’s opinion was erroneous.
35
Later that year, the
Tennessee Supreme Court commented that it could “not concur in
their reasoning” and that the Kentucky court failed to give “a just con-
struction of the meaning of the clause of the constitution they had un-
der consideration.”
36
The court also denied that it could attribute the
opposing opinions to differences in language in the two state constitu-
tions; to the contrary, the constitutions were close enough to adjudge
that the Kentucky court had simply erred in its understanding of the
right.
37
By 1896, the Massachusetts Supreme Judicial Court lined up
all the cases holding that the right to carry arms could be regulated.
38
It then noted, “The early decision to the contrary, of Bliss v. Com., has
not been generally approved.”
39
Bliss was an outlier decision—a deci-
sion that did not correctly state the general law.
This leads to an important point. The reliance on and use of gen-
eral law should not be confused with the claim that everyone agrees on
what the general law is. To the contrary, disagreements about the
33 See, e.g., State v. deLottinville, 890 N.W.2d 116, 122 (Minn. 2017) (feeling free to
interpret the state constitution’s prohibition against unreasonable searches and seizures
more broadly than the Supreme Court understands the Fourth Amendment, although the
Minnesota and Federal Constitutions contain identical prohibitions against unreasonable
searches and seizures); State v. Mello, 27 A.3d 771, 776 (N.H. 2011) (explaining that “our
law regarding information voluntarily exposed to third parties is in line with the protection
afforded under the Fourth Amendment and diverges significantly from New Jersey law”);
State v. Gunwall, 720 P.2d 808, 811 (Wash. 1986) (discussing criteria for determining when
the state constitution will be interpreted more expansively than the Federal Constitution).
34 Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 92 (1822).
35 State v. Reid, 1 Ala. 612, 619 (1840).
36 Aymette, 21 Tenn. (2 Hum.) at 160.
37 Id.
38 Commonwealth v. Murphy, 44 N.E. 138, 138 (Mass. 1896).
39 Id. (citation omitted).
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precise scope of general law have been an important part of the law’s
development.
In sum, the nineteenth-century mode of analysis was one of gen-
eral law. Courts looked to history and custom to understand the right.
Where there were questions about the right’s scope, courts also looked
at the text used to codify it. And courts routinely looked across juris-
dictions for assistance in determining the scope of right, usually follow-
ing settled lines of precedent while ignoring incorrect and outlier de-
cisions.
B. The Supreme Court Adopts the General-Law Approach
During the antebellum period there was little caselaw on the fed-
eral constitutional right to keep and bear arms. The Second Amend-
ment was not thought to be incorporated against the states,
40
and there
was no significant federal gun control legislation.
41
The scope of these federal questions changed after the Civil War.
The Fourteenth Amendment prohibited states from “mak[ing] or en-
forc[ing] any law which shall abridge the privileges or immunities of
citizens of the United States.”
42
One of these privileges or immunities
was the right to keep and bear arms, so the Amendment was designed
to secure that right against the states.
43
Yet, four years later, the Supreme Court would largely neuter the
Fourteenth Amendment’s Privileges or Immunities Clause in the
40 See Barron ex rel. Tiernan v. Mayor of Balt., 32 U.S. (7 Pet.) 243, 249–50 (1833). But
cf. State v. Smith, 11 La. Ann. 633, 633 (1856) (holding that the Second Amendment was
not violated by a law prohibiting the carrying of concealed weapons).
41 The first significant federal gun control legislation was adopted in 1934. See Robert
J. Spitzer, Gun Law History in the United States and Second Amendment Rights, 80 LAW &
CONTEMP. PROBS. 55, 58 (2017) (discussing the National Firearms Act, ch. 757, 48 Stat. 1236
(1934)). The one earlier legislative act that might have produced a federal court ruling—
an 1857 City of Washington ordinance prohibiting the public carry of pistols and other
weapons, Wash., D.C., Act of Nov. 4, 1857, ch. 5, in GENERAL LAWS OF THE CORPORATION
OF THE CITY OF WASHINGTON 75 (Washington, Robert A. Waters 1860)—was revised a year
later to prohibit carrying only concealed weapons out of fear that a total ban would not
survive judicial challenge. Wash., D.C., Act of Nov. 18, 1858, ch. 11, in GENERAL LAWS OF
THE CORPORATION OF THE CITY OF WASHINGTON, supra, at 114; Concealed Weapons, EVENING
STAR (Wash., D.C.), Nov. 11, 1858, at 3.
42 U.S. CONST. amend. XIV, § 1.
43 See McDonald v. City of Chicago, 561 U.S. 742, 832–34 (2010) (Thomas, J., concur-
ring in part and concurring in judgment) (collecting evidence). For different accounts of
how the Privileges or Immunities Clause was designed to do so, see Baude, Campbell &
Sachs, supra note 13, at 1235–36; RANDY E. BARNETT & EVAN D. BERNICK, THE ORIGINAL
MEANING OF THE FOURTEENTH AMENDMENT: ITS LETTER AND SPIRIT 239 (2021); and KURT
T. LASH, THE FOURTEENTH AMENDMENT AND THE PRIVILEGES AND IMMUNITIES OF AMERICAN
CITIZENSHIP 13, 52–55 (2014).
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Slaughter-House Cases.
44
A 5–4 majority of the Court believed that it
would work a major and unintended revolution in federalism to con-
clude that the Fourteenth Amendment had given the federal govern-
ment the power to protect all civil rights.
45
Instead, the majority held
that the clause protected only the privileges and immunities “which
owe their existence to the Federal government, its National character,
its Constitution, or its laws”—that is, to rights created by the Constitu-
tion or by having a national government.
46
It then gave some exam-
ples, including the rights to travel to the District of Columbia to trans-
act business with the federal government, to have the protection of the
federal government outside the United States’ borders, and to peace-
ably assemble for the purpose of petitioning the national govern-
ment.
47
By contrast the principal dissent thought the clause protected
“the natural and inalienable rights which belong to all citizens”—that
is, the traditional general-law rights of citizenship.
48
This framework brought the right to bear arms into federal courts.
In the wake of Slaughter-House, the Supreme Court described the Sec-
ond Amendment as securing a preexisting fundamental right. But be-
cause Slaughter-House had basically inverted the original meaning of
the Privileges or Immunities Clause—protecting only newly created na-
tional rights, not preexisting fundamental rights—describing the right
to keep and bear arms as a preexisting right meant that it received no
federal protection.
This trick is what freed William Cruikshank, a participant in the
Colfax Massacre, who murdered black prisoners taken after a white
mob attacked a courthouse in Louisiana.
49
Cruikshank was prosecuted
for having conspired “to injure, oppress, threaten, or intimidate any
citizen with intent to prevent or hinder his free exercise and enjoyment
of any right or privilege granted or secured to him by the Constitution
or laws of the United States.”
50
The indictment alleged, among other
deprivations of rights, that Cruikshank had conspired to deprive the
victims “of their lawful right and privilege to peaceably assemble to-
gether with each other and with other citizens of the . . . United States
44 83 U.S. (16 Wall.) 36 (1873).
45 Id. at 77–78.
46 Id. at 79; see also Baude, Campbell & Sachs, supra note 13, at 1232–34.
47 Slaughter-House, 83 U.S. (16 Wall.) at 79–80.
48 Id. at 96 (Field, J., dissenting).
49 CHARLES LANE, THE DAY FREEDOM DIED: THE COLFAX MASSACRE, THE SUPREME
COURT, AND THE BETRAYAL OF RECONSTRUCTION 105–06 (2008).
50 Enforcement Act of 1870, ch. 114, § 6, 16 Stat. 140, 141.
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for a peaceable and lawful purpose” and to violate the victims’ “right
to keep and bear arms for a lawful purpose.”
51
Relying on Slaughter-House, which limited the Privileges or Im-
munities Clause to rights created by the national government, the
Court reversed the convictions. Although the right to peaceably as-
semble for the purpose of petitioning the national government was a
nationally created right, the right to assemble for general lawful pur-
poses was not.
52
This is because “[t]he right of the people peaceably
to assemble for lawful purposes existed long before the adoption of the
Constitution of the United States”
53
and “derives its source . . . from
those laws whose authority is acknowledged by civilized man through-
out the world.”
54
The right, in other words, was a preexisting natural
right, and the First Amendment secured that preexisting right against
the national government alone.
55
The Court held that Congress could
protect against state or private interference only the right of assembly
for “the purpose of petitioning Congress for a redress of grievances, or
for any thing else connected with the powers or the duties of the na-
tional government” because these rights were nationally created and,
thus, “under the protection of, and guaranteed by, the United
States.”
56
The Court then made a similar holding overturning the convic-
tions on the indictment counts alleging interference with “bearing
arms for a lawful purpose.”
57
The Court reversed those convictions
because it understood the Second Amendment to secure a preexisting
right to bear arms against federal interference only; the Second
Amendment did not create a new national right to bear arms. Thus,
the Court said:
The second and tenth counts [of the indictment] are equally defec-
tive. The right there specified is that of “bearing arms for a lawful
purpose.” This is not a right granted by the Constitution. Neither
is it in any manner dependent upon that instrument for its exist-
ence. The second amendment declares that it shall not be in-
fringed; but this, as has been seen, means no more than that it shall
not be infringed by Congress. This is one of the amendments that
51 United States v. Cruikshank, 92 U.S. 542, 545 (1876) (preopinion statement of the
case).
52 Id. at 551 (majority opinion).
53 Id.
54 Id. (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824)).
55 Id. at 551–52.
56 Id. at 552–53.
57 Id. at 553.
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has no other effect than to restrict the powers of the national gov-
ernment . . . .
58
A prominent commentator has argued that United States v. Cruik-
shank rejected the “expansive reading of the right to bear arms as an
individual right of private self-defense.”
59
Instead, he asserts that Cruik-
shank “endorsed a limited states’ rights conception of the Second
Amendment” in which “the Second Amendment would be understood
to be a limit on federal power to disarm the state militias.”
60
But this
is a profound—one dares say anachronistic—misunderstanding of
Cruikshank and subsequent cases. The Court did not deny that the
right to bear arms, or the Second Amendment, included individual
self-defense. Rather, Cruikshank refused to protect the right to bear
arms precisely because it was a preexisting general-law right, rather
than one newly created by the Second Amendment.
A few years after Cruikshank, Presser v. Illinois reinforced that the
Second Amendment protected only a preexisting general-law right.
Herman Presser had been convicted of unlawfully parading with arms
in public as part of a private military organization.
61
Illinois law made
it unlawful for any “body of men,” except the Illinois National Guard
or federal troops, to form a military company or to parade publicly with
arms in a city or town, except under license from the Governor.
62
Presser took his appeal to the U.S. Supreme Court, where both
Presser and Illinois understood Cruikshank to hold that the Second
Amendment secured a preexisting general-law right. In his brief,
Presser disclaimed any intent to “contend[] that the right, to keep and
bear arms owes its origin to any Constitution, for none knew better
than the framers of that instrument, that the right was pre-existent.”
63
That preexisting right, he said, was “guaranteed, also, by State and Fed-
eral Constitutions.”
64
Similarly, the Attorney General of Illinois, quot-
ing Cruikshank, argued that the Second Amendment, as a preexisting
right, was not incorporated against the states by the Fourteenth
Amendment.
65
If the Second Amendment had created a right not to have the
federal government interfere with organized militias, then the Slaugh-
ter-House Court would have incorporated the Second Amendment
58 Id.
59 SAUL CORNELL, A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE
ORIGINS OF GUN CONTROL IN AMERICA 194 (2006).
60 Id. at 195.
61 Presser v. Illinois, 116 U.S. 252, 253 (1886).
62 Military Code of Illinois, art. XI, § 5, 1879 Ill. Laws 192, 203.
63 Argument for Plaintiff in Error at 31, Presser, 116 U.S. 252 (No. 73).
64 Id. at 33.
65 Brief & Argument for Defendants in Error at 8, Presser, 116 U.S. 252 (No. 73).
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against the states. That right would have been new and nationally cre-
ated in 1791, and thus, a privilege or immunity of United States citi-
zenship under Slaughter-House’s narrow and inverted definition of that
term. A supplemental brief by Lyman Trumbull tried to make a ver-
sion of that argument, but the Court rejected it, too.
66
After question-
ing whether the right to bear arms included bearing arms in private
military organizations or unauthorized armed parades,
67
the Court fell
back to Cruikshank’s conclusion that the right was preexisting and,
thus, federally enforceable only against the national government.
68
In
support, the Court additionally cited state cases from North Carolina,
Tennessee, and Arkansas that concerned the right to bear arms.
69
Though Cruikshank and Presser were decided in the upside-down
shadow of Slaughter-House, they confirmed that the Second Amend-
ment protected a preexisting right to keep and bear arms.
By the end of the nineteenth century, the general-law approach
was so well entrenched that the Court felt comfortable casually men-
tioning it in dicta. In Robertson v. Baldwin, the Court faced the question
of whether a seaman could face criminal sanctions for refusing to per-
form his contract or whether such criminal sanctions violated the Thir-
teenth Amendment’s prohibition against involuntary servitude.
70
The
Court held that seaman contracts fell within a well-understood excep-
tion to the Thirteenth Amendment. In its analysis, the Court analo-
gized to the rights enumerated in the Bill of Rights. The Court ex-
plained that
[t]he law is perfectly well settled that the first ten amendments to
the Constitution, commonly known as the Bill of Rights, were not
intended to lay down any novel principles of government, but
simply to embody certain guaranties and immunities which we had
inherited from our English ancestors, and which had from time im-
memorial been subject to certain well-recognized exceptions aris-
ing from the necessities of the case.
71
Among these exceptions, the Court continued, “the right of the
people to keep and bear arms (art. 2) is not infringed by laws prohib-
iting the carrying of concealed weapons.”
72
This was an offhand refer-
ence to the Second Amendment as a preexisting right, but also one
with recognized general-law exceptions.
66 Brief of Lyman Trumbull at 10–11, Presser, 116 U.S. 252 (No. 73).
67 Presser, 116 U.S. at 264–65.
68 Id. at 265.
69 Id. (first citing State v. Newsom, 27 N.C. (5 Ired.) 250 (1844); then citing Andrews
v. State, 50 Tenn. (3 Heisk.) 165 (1871); and then citing Fife v. State, 31 Ark. 455 (1876)).
70 165 U.S. 275, 280 (1897).
71 Id. at 281.
72 Id. at 281–82.
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This general-law approach continued into the twentieth century,
when the Supreme Court faced its first major decision on the scope of
the Second Amendment in United States v. Miller.
73
In 1934, Congress
passed the National Firearms Act, a taxing and registration scheme
that restricted machine guns, sawed-off shotguns, and some other
highly destructive weapons.
74
Two defendants were charged with trans-
porting an unregistered sawed-off shotgun in interstate commerce.
75
The district court dismissed the indictment, holding that the National
Firearms Act violated the Second Amendment.
76
The federal government took a direct appeal to the Supreme
Court, and even though Erie had been decided by then, the govern-
ment’s arguments still echoed the earlier general-law approach. Citing
Cruikshank and Presser, the government asserted that the Second
Amendment secured a preexisting right to bear arms.
77
Because the
right was a preexisting right, the government argued that courts must
look to original law to determine its scope.
78
The government then
made two arguments that sounded in the same general-law principles.
First, referencing state cases in Kansas and Arkansas, the government
claimed that individuals had a right to bear arms only when “the arms
are borne in the militia or some other military organization provided
for by law and intended for the protection of the state.”
79
Second, and
alternatively, even if the right to bear arms included carrying arms for
private self-defense, the government asserted that “the cases are unan-
imous in holding that the terms ‘arms’ as used in constitutional provi-
sions refers only to those weapons which are ordinarily used for mili-
tary or public defense purposes and does not relate to those weapons
which are commonly used by criminals.”
80
For this proposition, the
government quoted from the Tennessee Supreme Court’s 1840 deci-
sion in Aymette v. State and an 1891 West Virginia Supreme Court of
73 307 U.S. 174, 178 (1939).
74 National Firearms Act, ch. 757, 48 Stat. 1236 (1934).
75 United States v. Miller, 26 F. Supp. 1002, 1003 (W.D. Ark.), rev’d, 307 U.S. 174.
76 Id.
77 Brief for the United States at 8–9, Miller, 307 U.S. 174 (No. 696) (“The Second
Amendment does not confer upon the people the right to keep and bear arms; it is one of
the provisions of the Constitution which, recognizing the prior existence of a certain right,
declares that it shall not be infringed by Congress.”).
78 Id. at 9 (“Accordingly, in determining the nature and extent of the right referred
to in the Second Amendment, we must look to the common law on the subject as it existed
at the time of the adoption of the Amendment.”).
79 Id. at 15–16 (first citing City of Salina v. Blaksley, 83 P. 619, 620 (Kan. 1905); and
then citing State v. Buzzard, 4 Ark. 18, 24–25 (1842)).
80 Id. at 18.
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Appeals opinion.
81
The government also supported this second argu-
ment by citing sixteen other cases from state courts all over the coun-
try, cases primarily decided under state analogues of the Second
Amendment.
82
These decisions would have had little precedential
value if they were merely expounding various state constitutional pro-
visions unrelated to the Second Amendment. Rather, the government
relied on them because it recognized that the Second Amendment and
various state analogues secured the same preexisting general right to
bear arms.
Relying on the government’s second argument, the Supreme
Court reversed and remanded for a criminal trial.
83
The Court held
that it could not consider sawed-off shotguns to be “arms” within the
meaning of the Second Amendment without “evidence tending to
show that possession or use of a [short-barreled shotgun] . . . has some
reasonable relationship to the preservation or efficiency of a well reg-
ulated militia.”
84
The Court explained that it was not “within judicial
notice that this weapon is any part of the ordinary military equipment
or that its use could contribute to the common defense.”
85
This deci-
sion borrowed the legal test from Aymette, which had held that the arms
protected by the right to bear arms are those arms that “are usually
employed in civilized warfare, and that constitute the ordinary military
equipment.”
86
The Supreme Court’s decision in Miller bears marks of the gen-
eral-law approach. Aymette was not a decision that directly applied the
Second Amendment. Instead, Aymette applied the Tennessee state con-
stitutional right to bear arms.
87
Yet, in making its holding, the state
court thought the federal constitutional right to bear arms, the right
to bear arms in various state analogues, and the right to bear arms de-
clared by the English Bill of Rights were approximately equivalent.
88
Perhaps the U.S. Supreme Court thought so, too, for this reliance on
Aymette is suggestive of the earlier general-law approach.
Additionally, the government’s brief on this point was probably
correct that the general-law right protected those arms primarily useful
for public defense, rather than those weapons primarily useful for
criminal purposes and private conflicts. This is why the government’s
81 Id. at 18–19 (first citing Aymette v. State, 21 Tenn. (2 Hum.) 154, 158 (1840); and
then citing State v. Workman, 14 S.E. 9, 11 (W. Va. 1891)).
82 Id. at 19–20.
83 United States v. Miller, 307 U.S. 174, 183 (1939).
84 Id. at 178.
85 Id. (citing Aymette, 21 Tenn. (2 Hum.) at 158).
86 Aymette, 21 Tenn. (2 Hum.) at 158.
87 Id. at 160.
88 Id. at 157.
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brief could cite nearly two dozen cases from a variety of jurisdictions
for support of this point. Indeed, this argument stood in contrast to
the government’s first argument (that the right to bear arms only ap-
plied to those actively enrolled in the militia), for which the govern-
ment could muster only two cases, and which we think was not a correct
statement of general law.
89
If Miller was influenced by the general-law
approach, perhaps that is why the Court endorsed the stronger of the
government’s two arguments, resting ultimately on the character of
the weapon and drawing from law on which American courts had
broadly coalesced.
Similarly, the very end of Miller also invokes the general-law frame-
work:
Most if not all of the States have adopted provisions touching the
right to keep and bear arms. Differences in the language employed
in these have naturally led to somewhat variant conclusions con-
cerning the scope of the right guaranteed. But none of them seem
to afford any material support for the challenged ruling of the
court below.
90
Again, this passage seems to imagine that various state constitutions
and decisions all describe the scope of the preexisting right to bear
arms. And while the Miller Court recognizes that differences in the
local concretization of the right could lead to some local differences
in scope, none of this variation mattered for the case before it. No
matter how a state concretized the right to bear arms, there was over-
lapping consensus that the right extended only to weapons having pub-
lic-defense value. That is why sawed-off shotguns were not protected
“arms” within the scope of the general-law right to keep and bear arms.
C. Heller
After Miller, the Second Amendment underwent a period of dor-
mancy. Lower courts rejected Second Amendment challenges, often
misreading Miller to have adopted the government’s first argument—
that the Second Amendment applied only to individuals enrolled in
89 See Robert Leider, Our Non-Originalist Right to Bear Arms, 89 IND. L.J. 1587, 1617–18
(2014). The government’s reliance on the Arkansas case as supporting a collective right
may also have been erroneous. See id.
90 Miller, 307 U.S. at 182.
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military organizations.
91
Lower courts also refused to apply the Second
Amendment to the states, relying on Cruikshank and Presser.
92
The Supreme Court overturned that dormancy in District of Colum-
bia v. Heller.
93
Heller involved the constitutionality of the District of Co-
lumbia’s ban on the possession of handguns. The Court addressed two
questions: first, whether the Second Amendment secured a right of in-
dividuals who were not enrolled in organized militia units to have
arms, and second, whether the right included the ability to possess
handguns in the home.
Answering the first question, Heller recognized that the Second
Amendment was not limited only to those enrolled in the militia.
94
The initial parts of the opinion are textualist. They examine the orig-
inal public meaning of phrases like “right of the people” and “keep
and bear Arms” in great detail.
95
Heller did add to this exegesis the recognition that “the Second
Amendment, like the First and Fourth Amendments, codified a pre-
existing right,”
96
and used this recognition to turn to various historical
sources.
97
The Court also looked to the adoption of state constitutional
provisions securing the right to bear arms to inform its understanding
of the Second Amendment.
98
And, after examining nineteenth-cen-
tury legal treatises,
99
the Court looked at antebellum caselaw, explain-
ing that state courts in Georgia, Louisiana, and Tennessee had all rec-
ognized that the right to bear arms protected some species of
individual right.
100
But the Court did not seem to be using a general-law framework.
Instead, it saw history as relevant to “the public understanding of a legal
text in the period after its enactment or ratification.”
101
And when the
Court went to apply its legal rules to the case at bar—a ban on the
possession of handguns—its decision moved away from a historical
91 See, e.g., United States v. Wright, 117 F.3d 1265, 1273–74 (11th Cir. 1997), vacated
in part on other grounds, 133 F.3d 1412 (11th Cir. 1998); United States v. Rybar, 103 F.3d 273,
286 (3d Cir. 1996); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995); United States v.
Oakes, 564 F.2d 384, 387 (10th Cir. 1977); see also Hickman v. Block, 81 F.3d 98, 102 (9th
Cir. 1996) (generally in accord but vesting the right in state governments); Silveira v. Lock-
yer, 312 F.3d 1052, 1061 (9th Cir. 2002) (reaffirming Hickman with substantially more anal-
ysis).
92 See, e.g., Quilici v. Village of Morton Grove, 695 F.2d 261, 269 (7th Cir. 1982).
93 554 U.S. 570 (2008).
94 Id. at 585–86.
95 Id. at 579–86.
96 Id. at 592.
97 Id. at 592–95.
98 Id. at 600–03.
99 Id. at 606–10.
100 Id. at 612–614.
101 Id. at 605.
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general-law approach.
102
The Court held that handguns were constitu-
tionally protected because they “are the most popular weapon chosen
by Americans for self-defense in the home.”
103
But the Court never
justified this conclusion by an examination of historical sources of
law.
104
To much greater controversy, some of the legal rules articulated
in Heller were direct collisions with general-law principles. Miller had
held that the Second Amendment protected weapons that had “some
reasonable relationship to the preservation or efficiency of a well reg-
ulated militia”—that is, arms that constituted “the ordinary military
equipment.”
105
Miller followed virtually all nineteenth-century deci-
sions and treatises, which had recognized that the “arms” protected by
the Second Amendment were military weapons “usually employed in
civilized warfare.”
106
But weapons technology had changed since the
nineteenth century, and the primary individual weapons of the military
when Heller was decided were the select-fire M-16 assault rifle and its
derivatives—weapons generally considered inappropriate for civilian
possession. Heller, thus, found it “a startling reading” of Miller that it
would protect highly unusual arms even if those arms were ordinary
102 Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA
L. REV. 1343, 1355 (2009).
103 Heller, 554 U.S. at 629.
104 Lund, supra note 102, at 1355–56 (“[T]his is not the result of an historical study of
the scope of the preexisting eighteenth-century right to arms.”).
105 United States v. Miller, 307 U.S. 174, 178 (1939).
106 Aymette v. State, 21 Tenn. (2 Hum.) 154, 158 (1840); accord, e.g., Fife v. State, 31
Ark. 455, 458–61 (1876); Hill v. State, 53 Ga. 472, 474 (1874); State v. Smith, 11 La. Ann.
633, 633 (1856); Andrews v. State, 50 Tenn. (3 Heisk.) 165, 179, 184–87 (1871); English v.
State, 35 Tex. 473, 476–77 (1871); State v. Workman, 14 S.E. 9, 11 (W. Va. 1891); 2 JOEL
PRENTISS BISHOP, COMMENTARIES ON THE CRIMINAL LAW § 124, at 75 (Boston, Little,
Brown, & Co. 4th ed. 1868) [hereinafter BISHOP, CRIMINAL LAW]; JOEL PRENTISS BISHOP,
COMMENTARIES ON THE LAW OF STATUTORY CRIMES § 793, at 469 (Boston, Little, Brown, &
Co. 2d ed. 1883); HENRY CAMPBELL BLACK, HANDBOOK OF AMERICAN CONSTITUTIONAL LAW
§ 144, at 403 (St. Paul, W. Publ’g Co. 1895); THOMAS M. COOLEY, THE GENERAL PRINCIPLES
OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 299 (Boston, Little, Brown, &
Co. 3d ed. 1898); 2 EMLIN MCCLAIN, A TREATISE ON THE CRIMINAL LAW AS NOW
ADMINISTERED IN THE UNITED STATES § 1030, at 205 (Chicago, Callaghan & Co. 1897);
CHRISTOPHER G. TIEDEMAN, A TREATISE ON THE LIMITATIONS OF POLICE POWER IN THE
UNITED STATES CONSIDERED FROM BOTH A CIVIL AND CRIMINAL STANDPOINT § 140c, at 503
(St. Louis, The F. H. Thomas L. Book Co. 1886); see also State v. Duke, 42 Tex. 455, 458
(1875) (protecting both military arms and those “commonly kept, according to the customs
of the people” for “open and manly use in self-defense”).
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military weapons.
107
Heller reformulated the test to protect arms “‘in
common use at the time’ for lawful purposes like self-defense.”
108
Justice Scalia’s subsequent justification for this change also misap-
plied general-law principles. Justice Scalia explained that the prohibi-
tion on individuals owning military rifles, such as the M-16, “is fairly
supported by the historical tradition of prohibiting the carrying of
‘dangerous and unusual weapons.’”
109
But the common-law crime of
going armed to the terror of the people, to which Justice Scalia al-
luded, did not prohibit the possession of military weapons in the
home.
110
It instead banned carrying arms in public under circum-
stances that were likely to terrify the people.
111
And treatise writers had
long recognized that individuals did not commit the common-law of-
fense by keeping such arms in their homes or by bearing them in pub-
lic for defense of the community and for law enforcement purposes.
112
Justice Scalia, thus, converted a common-law restriction on public
carry into a precedent to ban possession in the home. Knowingly or
not, Heller seemed to move away from parts of the general-law ap-
proach, though it continued the understanding of the Second Amend-
ment as a preexisting right.
II. READING BRUEN
Between Heller and Bruen, the Supreme Court incorporated the
full scope of the Second Amendment against the states in McDonald v.
City of Chicago,
113
effectively overturning Cruikshank. Following the in-
corporation of the Second Amendment against the states, individuals
began challenging state restrictions on the public carry of handguns.
In Bruen, the Supreme Court evaluated a challenge to a New York law
requiring “proper cause” to obtain a license to carry a handgun.
114
In
interpreting “proper cause,” New York courts had held that licensing
authorities could refuse to issue a carry license for self-defense unless
107 Heller, 554 U.S. at 624.
108 Id. (quoting Miller, 307 U.S. at 179). The Court reiterated this point from Heller as
well in the summary per curiam opinion in Caetano v. Massachusetts, 577 U.S. 411, 412
(2016). See also id. at 418–19 (Alito, J., concurring in judgment).
109 Heller, 554 U.S. at 627.
110 See State v. Huntly, 25 N.C. (3 Ired.) 418, 421–23 (1843).
111 Id. at 421; see also Robert Leider, Constitutional Liquidation, Surety Laws, and the Right
to Bear Arms, in NEW HISTORIES OF GUN RIGHTS AND REGULATION 233, 257–58 (Joseph
Blocher et al. eds., 2023).
112 See, e.g., 1 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 135–36
(London, B. Nutt 3d ed. 1739); see also JAMES E. GRIGSBY, THE CRIMINAL LAW INCLUDING
THE FEDERAL PENAL CODE § 335, at 285 (1922) (distinguishing affrays from going armed to
the terror of the people).
113 McDonald v. City of Chicago, 561 U.S. 742, 778–79 (2010).
114 N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2123 (2022).
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the applicant had “demonstrate[d] a special need for self-protection
distinguishable from that of the general community or of persons en-
gaged in the same profession.”
115
As a result, exceedingly few New
Yorkers could obtain a license to carry a handgun as a matter of
right.
116
Bruen invalidated this scheme. The Supreme Court held that
the right to bear arms extended to carrying arms beyond the home and
that New York could not restrict this right to a few New Yorkers who
faced special dangers.
117
A. Bruen as a Return to the General-Law Approach
In the Court’s opinion, there are several clues that Bruen marks a
return to the Court’s original-law approach to the Second Amend-
ment. As in Heller, the Court in Bruen explicitly claims that the right
to keep and bear arms was a preconstitutional legal right: “‘[I]t has
always been widely understood that the Second Amendment . . . codi-
fied a pre-existing right.’ The Amendment ‘was not intended to lay
down a novel principle but rather codified a right inherited from our
English ancestors.’”
118
But from here, Bruen imposes a noticeably less
textualist focus than Heller had. Bruen moves much more firmly to his-
torical understandings about the scope of the right as reflected in legal
materials such as statutes and court decisions.
Bruen also makes clear that it is applying a form of originalism:
one in which the Constitution’s “meaning is fixed according to the un-
derstandings of those who ratified it,” but “the Constitution can, and
must, apply to circumstances beyond those the Founders specifically
anticipated.”
119
And the Court says that these applications will be ac-
complished with a historical inquiry that is also a legal inquiry. As the
Court describes it, “this historical inquiry that courts must conduct will
often involve reasoning by analogy—a commonplace task for any law-
yer or judge.”
120
115 Klenosky v. N.Y.C. Police Dep’t, 428 N.Y.S.2d 256, 256 (N.Y. App. Div. 1980), aff’d,
421 N.E.2d 503 (N.Y. 1981).
116 We say “as a matter of right” because licensing officials had wide discretion to in-
terpret proper cause, which led to considerable variation in de facto issuance policies. Ab-
sent the most extreme facts, however, courts would not reverse a decision to deny a self-
defense license for lack of proper cause. See Delgado v. Kelly, No. 104061/12, 2013 WL
5615046, at *4 (N.Y. Sup. Ct. Oct. 11, 2013) (“Judicial review is limited to determining
whether the administrative decision to deny petitioner a handgun license is arbitrary and
capricious or an abuse of discretion.”), aff’d, 8 N.Y.S.3d 172 (N.Y. App. Div. 2015).
117 Bruen, 142 S. Ct. at 2122.
118 Id. at 2127 (omission in original) (citation omitted) (quoting District of Columbia
v. Heller, 554 U.S. 570, 592, 599 (2008)).
119 Id. at 2132.
120 Id.
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This, we dare say, is not just originalism, but an inquiry into what
one of us has called “the law of the past” called for by original-law
originalism.
121
(Finally and perhaps superficially, we observe that
Bruen cites legal scholarship by one of us that explicitly argues for orig-
inal-law originalism,
122
and that it refers to the “Founders’ law”—and
indeed is the first Supreme Court opinion to do so—and it calls it “part
of our law.”)
123
This brings us to what is perhaps the most controversial part of
Bruen—its discussion of the “historical approach” to understanding
the scope of the right to keep and bear arms.
124
As to the specific law
before it, Bruen relied on two main conclusions from the history. The
first was that a total or near-total ban on carrying weapons outside the
home would infringe the right.
125
The Court thought this conclusion
of “little difficulty,” and the respondents did not contest it.
126
Rightly
so. Such a total ban would be entirely disproportionate and would go
beyond what could fairly be called a regulation of the right.
127
The second, more difficult, conclusion was whether exercise of
the right could be conditioned upon a showing of special need. After
an extensive survey of laws and court decisions, the Court concluded
that there was little support for such a principle. History supported
restrictions such as “limit[ations on] the intent for which one could
carry arms, the manner by which one carried arms, or the exceptional
circumstances under which one could not carry arms, such as before
justices of the peace and other government officials.”
128
But apart from
a few “outliers” there was no support for either a “broad[] pro-
hibit[ion of] public carry” or the “‘demonstrat[ion of] a special need
121 William Baude & Stephen E. Sachs, Originalism and the Law of the Past, 37 LAW &
HIST. REV. 809, 817–18 (2019) (“The difficulty of applying old law to new facts is in no way
unique to originalism. It is the stuff of first-year law classes the world over. A town forbids
‘vehicles in the park’ with an eye to cars, buses, and motorcycles. The case of motorized
wheelchairs had not occurred to anyone, but the judges who face it ‘do not just push away
their law books and start to legislate without further guidance’; rather, they ‘proceed[] by
analogy’ to principles with ‘a footing in the existing law,’ after carefully investigating what
that existing law might be.” (quoting H.L.A. HART, THE CONCEPT OF LAW 128–29, 274 (3d
ed. 2012))).
122 Bruen, 142 S. Ct. at 2130 n.6 (citing Baude & Sachs, supra note 121, at 810–11).
123 Id. at 2136; cf. William Baude, Is Originalism Our Law?, 115 COLUM. L. REV. 2349
(2015).
124 Bruen, 142 S. Ct. at 2129.
125 Id. at 2134–35.
126 Id. at 2134.
127 See sources cited infra note 141 (distinguishing between a regulation and a prohi-
bition).
128 Bruen, 142 S. Ct. at 2156.
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for self-protection distinguishable from that of the general commu-
nity’ in order to carry arms in public.”
129
Perhaps the length at which the Court discussed the details of
these laws—going through each statute and court decision and explic-
itly parsing them, distinguishing them, and then counting them or set-
ting them aside—obscured the Court’s more fundamental inquiry: an
inquiry into the general law. One might frequently describe the scope
of a common-law doctrine by looking to a wide range of cases, parsing
the close cases, setting aside unusual outliers, and trying to distill the
general principles. This is a common task for a treatise writer, a re-
statement reporter, or a traditional common-law judge. And as we will
explain, we think it was what the Court was doing in Bruen.
B. Understanding the General-Law Approach to the Second Amendment
How did courts applying the general law traditionally determine
whether regulations of weapons violated the right to bear arms? We
think they did so very similarly to the framework that Bruen articulates.
Bruen provides the following test to determine the constitutional
validity of a law regulating weapons:
When the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that conduct.
The government must then justify its regulation by demonstrating
that it is consistent with the Nation’s historical tradition of firearm
regulation. Only then may a court conclude that the individual’s
conduct falls outside the Second Amendment’s “unqualified com-
mand.”
130
The Supreme Court’s two-step Bruen test resembles, if not nearly
mirrors (albeit in different language), the traditional general-law ap-
proach in state court cases involving the right to bear arms. Most states
also applied a two-part test to decide the constitutional validity of a
weapons regulation. At the first step, a court had to determine
whether the conduct fell within the scope of the right.
131
If it did not,
then the challenge was doomed at the outset because the government
may regulate unprotected conduct without constraint.
132
129 Id. (quoting Klenosky v. N.Y.C. Police Dep’t, 428 N.Y.S.2d 256, 256 (N.Y. App. Div.
1980), aff’d, 421 N.E.2d 503 (N.Y. 1981)).
130 Id. at 2129–30 (quoting Konigsberg v. State Bar, 366 U.S. 36, 50 n.10 (1961)).
131 See, e.g., Fife v. State, 31 Ark. 455, 461 (1876); Wright v. Commonwealth, 77 Pa. 470,
471 (1875); Andrews v. State, 50 Tenn. (3 Heisk.) 165, 179, 186 (1871).
132 Or, perhaps more accurately, subject only to other constitutional constraints, such
as that the laws were racially neutral. For examples where challenges fell at the outset, see
Fife, 31 Ark. at 461 (upholding conviction for publicly carrying a weapon where person
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If the conduct fell within the scope of the right, then a different
analysis applied. At that point, the question became whether the leg-
islature had reasonably regulated the right using its police power.
133
Although we do not exhaustively detail the police power to regulate
rights,
134
scholars and cases suggest that legislation could fail to be a
proper exercise of the police power in multiple ways. The regulation
could be arbitrary,
135
such that it did not “bear a fair relation to the
preservation of the public peace and safety.”
136
The law could be dis-
proportionate to the legitimate ends sought to be achieved.
137
And,
perhaps most importantly, the law could eviscerate the core purpose
that the right sought to achieve, in which case the law would amount
to a denial or abridgment of the right rather than a mere regulation.
138
These principles explained why laws restricting the carrying of
concealed weapons were valid regulations of the right to bear arms. A
law that prohibited concealed weapons “does not operate as a prohibi-
tion against carrying weapons, but as a regulation of the manner of
carrying them.”
139
Individuals could still exercise their right to bear
arms by carrying their weapons openly.
140
possessed a pistol that did not fall within the class of constitutionally protected arms); and
Wright, 77 Pa. at 470–71 (holding that carrying a concealed weapon for an unlawful purpose
fell outside the constitutional right to bear arms for defense).
133 See Adam Winkler, The Reasonable Right to Bear Arms, 17 STAN. L. & POL’Y REV. 597,
598 (2006). We do not agree entirely with Winkler’s view that the standard must be “ex-
tremely deferential to state legislative efforts.” Id.; see, e.g., Andrews, 50 Tenn. (3 Heisk.) at
179–80 (describing the police power to regulate protected arms).
134 For attempts at this, see, for example, ERNST FREUND, THE POLICE POWER: PUBLIC
POLICY AND CONSTITUTIONAL RIGHTS (1904); W.P. PRENTICE, POLICE POWERS ARISING
UNDER THE LAW OF OVERRULING NECESSITY (New York & Albany, Banks & Bros. 1894); and
TIEDEMAN, supra note 106. Thanks to Eric Claeys for discussions on the scope of the police
power.
135 Strickland v. State, 72 S.E. 260, 263 (Ga. 1911); Winkler, supra note 133, at 598.
136 Britt v. State, 681 S.E.2d 320, 322 (N.C. 2009) (quoting State v. Dawson, 159 S.E.2d
1, 10 (N.C. 1968)).
137 Dano v. Collins, 802 P.2d 1021, 1022 (Ariz. Ct. App. 1990) (“[A] legitimate govern-
mental purpose in regulating the right to bear arms cannot be pursued by means that
broadly stifle the exercise of this right where the governmental purpose can be more nar-
rowly achieved.” (citing State v. Comeau, 448 N.W.2d 595, 598 (Neb. 1989))).
138 See, e.g., State v. Reid, 1 Ala. 612, 616–17 (1840) (“We do not desire to be under-
stood as maintaining, that in regulating the manner of bearing arms, the authority of the
Legislature has no other limit than its own discretion. A statute which, under the pretence
of regulating, amounts to a destruction of the right, or which requires arms to be so borne
as to render them wholly useless for the purpose of defence, would be clearly unconstitu-
tional.”); Winkler, supra note 133, at 598.
139 State v. Nieto, 130 N.E. 663, 664 (Ohio 1920).
140 See FREUND, supra note 134, § 90, at 91 (“We find here an application of the general
principle that constitutional rights must if possible be so interpreted as not to conflict with
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In contrast, laws entirely prohibiting the public carry of constitu-
tionally protected arms were unconstitutional.
141
Even if the govern-
ment had legitimate public safety concerns necessitating the regula-
tion of weapons in public, it could not pursue those aims by nullifying
the right. The police power allows for the regulation of rights. But the
power to regulate is not the power to prohibit the exercise of the
right.
142
These legal principles could be adapted to novel regulations. For
example, in 1893, Massachusetts passed a law (analogous to the Illinois
law at issue in Presser v. Illinois)
143
that prohibited bodies of men from
parading with firearms.
144
The Massachusetts Supreme Judicial Court
upheld the law and gave two primary reasons for its decision.
145
First,
it held that the law was a reasonable regulation of bearing arms and
relied on the authority of the U.S. Supreme Court’s decision in Presser
v. Illinois.
146
Second, it analogized the law to other laws prohibiting the
carrying of concealed weapons.
147
This analogy may seem odd and loose. What made a law against
carrying concealed weapons analogous to a law prohibiting armed
bodies of men from parading together? The answer was the underly-
ing legal principle. The court explained that these laws were relevant
because “it has been almost universally held that the legislature may
regulate and limit the mode of carrying arms.”
148
(Note that, in stating
the requirements of peace, order and security, and that regulations manifestly demanded
by these requirements are valid, provided they do not nullify the constitutional right or
materially embarrass its exercise.”).
141 Reid, 1 Ala. at 616–17; Nunn v. State, 1 Ga. 243, 249 (1846); In re Brickey, 70 P. 609,
609 (Idaho 1902); Andrews v. State, 50 Tenn. (3 Heisk.) 165, 191 (1871); Aymette v. State,
21 Tenn. (2 Hum.) 154, 160–61 (1840); see also State v. Kerner, 107 S.E. 222, 225 (N.C.
1921) (“It is also but a reasonable regulation, and one which has been adopted in some of
the states, to require that a pistol shall not be under a certain length, which if reasonable
will prevent the use of pistols of small size which are not borne as arms but which are easily
and ordinarily carried concealed. To exclude all pistols, however, is not a regulation, but a
prohibition, of arms which come under the designation of ‘arms’ which the people are
entitled to bear.”).
142 See Andrews, 50 Tenn. (3 Heisk.) at 181 (“The power to regulate, does not fairly
mean the power to prohibit; on the contrary, to regulate, necessarily involves the existence
of the thing or act to be regulated.”); see also Randy E. Barnett, The Original Meaning of the
Commerce Clause, 68 U. CHI. L. REV. 101, 139–47 (2001) (similarly discussing regulation for
purposes of the Commerce Clause).
143 116 U.S. 252, 253 (1886) (quoting Military Code of Illinois, art. XI, § 5, 1879 Ill.
Laws 192, 203); see supra notes 61–69 and accompanying text (discussing Presser).
144 Act of May 19, 1893, ch. 367, § 124, 1893 Mass. Acts 1017, 1049–50.
145 Commonwealth v. Murphy, 44 N.E. 138, 138 (Mass. 1896).
146 Id.
147 Id.
148 Id.
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this principle, the court also disregarded an outlier jurisdiction.)
149
The legal principle that supported prohibitions against concealed
weapons also supported the restriction on parading with arms.
Importantly, moreover, the general-law method does not require
courts to find a critical mass of historical firearm regulations that look
precisely (or almost precisely) like the challenged law. Thus, in apply-
ing this two-step approach, courts did not ask whether there were spe-
cific Framing-era analogues of the laws under consideration. Nor
could they have. The statutory laws against carrying concealed weap-
ons or taking arms to parades without license of the governor were
largely novel regulations governing the carrying of weapons. Courts
nevertheless upheld them as reasonable regulations of the right to
bear arms.
As the foregoing discussion shows, some form of interest balanc-
ing is a part of our nation’s tradition of regulating firearm ownership—
something that Bruen seemed to deny.
150
But what the traditional ap-
proach permitted was a sort of rights-based interest balancing, where the
state could regulate a right for limited purposes, such as to protect the
rights of others.
151
It did not necessarily allow legislatures to restrict a
right simply out of disagreement with the value of the right. And even
when the legislature had the power to restrict rights out of public ne-
cessity, restrictions could not be so severe as to amount to a nullifica-
tion of the right.
152
Implementation of these kinds of legal principles, we think, is not
the kind of interest balancing that Bruen meant to reject. Bruen rejects
modern utilitarian balancing tests (such as intermediate scrutiny) that
it deemed to be “judge-empowering.”
153
Utilitarian balancing tests in-
vited courts “to decide on a case-by-case basis whether the right is really
worth insisting upon.”
154
The Supreme Court may have rejected these
tests in part because it disliked how they had worked in practice: lower
courts gladly seized the opportunity, upholding virtually every modern
gun control law.
155
Some of these laws completely banned the bearing
149 Id. (“The early decision to the contrary, of Bliss v. Com., has not been generally
approved.” (citation omitted) (citing Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822)));
see also infra note 204.
150 N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2129 (2022) (quoting Dis-
trict of Columbia v. Heller, 554 U.S. 570, 634 (2008)) (citing McDonald v. City of Chicago,
561 U.S. 742, 790–91 (2010)).
151 See, e.g., Eric R. Claeys, Takings, Regulations, and Natural Property Rights, 88 CORNELL
L. REV. 1549, 1553–54 (2003).
152 See supra note 138.
153 Bruen, 142 S. Ct. at 2129 (quoting Heller, 554 U.S. at 634). Thanks to Eric Claeys
and Adam Mossoff for their suggestions in distinguishing these approaches.
154 Id. (quoting Heller, 554 U.S. at 634).
155 See, e.g., cases cited supra note 5.
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of arms by most citizens, thus entirely nullifying the right for them.
Traditional rights-based interest balancing is different from this utili-
tarian balancing approach, in part because it does not allow legisla-
tures to pursue legitimate aims (e.g., public safety) by completely nul-
lifying rights.
To be sure, there is much about the general-law right to keep and
bear arms that remains to be worked out. For instance, the Court has
not been entirely clear on the relevant timing question—whether to
use the general-law understanding of the right from 1791, 1868, or
even today. There are parts of Heller and Bruen compatible with any of
these three.
156
And more importantly, the Court has yet to clearly ar-
ticulate the principles that its own inquiry calls for: “how and why”
157
the government may burden the right to keep and bear arms for self-
defense or otherwise. These are the principles that will ultimately
come from the general-law inquiry—i.e., the analogical approach—
and which the courts must say more about soon, as we will discuss.
C. Bruen and Analogical Reasoning
Bruen’s discussion of analogies must be read in this general-law
light. As noted, the Court tried to explain that courts must extrapolate
from the historical data points to new cases by way of general princi-
ples—they should not “uphold every modern law that remotely resem-
bles a historical analogue”
158
nor demand “a historical twin” or “dead
ringer.”
159
Instead, they should engage in “reasoning by analogy—a
commonplace task for any lawyer or judge.”
160
The Court then broke down the use of analogy explicitly, citing
prominent scholars who had explained that analogical reasoning “re-
quires a determination of whether the two regulations are ‘relevantly
similar,’”
161
and that “one needs ‘some metric enabling the analogizer
to assess which similarities are important and which are not.’”
162
Bor-
rowing an example from two of those scholars, the Court noted: “For
instance, a green truck and a green hat are relevantly similar if one’s
156 Compare, e.g., Bruen, 142 S. Ct. at 2138 (“acknowledg[ing] . . . [the] ongoing schol-
arly debate” whether courts should examine the understanding of the right to bear arms in
1791 or 1868), with id. at 2138 n.9 (suggesting, in dicta, that twentieth-century “shall-issue”
licensing regimes are constitutional).
157 Id. at 2133.
158 Id. (quoting Drummond v. Robinson Township, 9 F.4th 217, 226 (3d Cir. 2021)).
159 Id.
160 Id. at 2132.
161 Id. (quoting Cass R. Sunstein, Commentary, On Analogical Reasoning, 106 HARV. L.
REV. 741, 773 (1993)).
162 Id. (quoting Frederick Schauer & Barbara A. Spellman, Analogy, Expertise, and Ex-
perience, 84 U. CHI. L. REV. 249, 254 (2017)).
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metric is ‘things that are green.’ They are not relevantly similar if the
applicable metric is ‘things you can wear.’”
163
What the Court, and these scholars, are describing here is simply
the common-law method! Common-law courts decided new cases by
looking to relevant, i.e., analogous, precedents. As many scholars even-
tually pointed out, there were potentially any number of ways to de-
scribe a case as analogous or disanalogous—that case was decided on
a Wednesday, but this case is being decided on a Tuesday.
164
So the
use of relevant precedents required criteria of relevance—which were
the principles of the common law.
Similarly, the Court in Bruen notes that common-law reasoning
about the Second Amendment contained “at least two metrics: how
and why the regulations burden a law-abiding citizen’s right to armed
self-defense.”
165
Thus, “whether modern and historical regulations im-
pose a comparable burden on the right of armed self-defense and
whether that burden is comparably justified are ‘central’ considera-
tions when engaging in an analogical inquiry.”
166
This is the applica-
tion of the methods of common-law reasoning to the right to keep and
bear arms, just as the general-law approach would have it.
Perhaps Bruen’s readers have missed this point because the Court
described the general-law approach in such a roundabout fashion. By
going through the basics of reasoning by analogy and inferring metrics
of similarity, the Court is sort of reinventing an introduction to legal
reasoning.
167
But it is difficult for the Court to state its approach more
directly because so much confusion has been introduced into legal rea-
soning today. The notion of a common-law method that involves ex-
trapolating and finding the law is lost to those who were taught and
teach that the common law is simply “judge-made law.”
168
Even calling
this approach the “common-law” method would be as likely to call to
mind the living constitutionalism of David Strauss
169
as the method of
classical common lawyers.
What the Court is doing is basically redescribing the common-law
or general-law method of understanding the scope of fundamental
163 Id. (citation omitted) (citing Schauer & Spellman, supra note 162).
164 See William Baude, Originalism as a Constraint on Judges, 84 U. CHI. L. REV. 2213,
2224–25 (2017).
165 Bruen, 142 S. Ct. at 2133.
166 Id. (emphasis omitted) (quoting McDonald v. City of Chicago, 561 U.S. 742, 767
(2010)).
167 Cf. EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING (1949).
168 See William Baude, The 2023 Scalia Lecture: Beyond Textualism?, 46 HARV. J.L. & PUB.
POL’Y 1331, 1343–48 (2023).
169 See David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877
(1996); David A. Strauss, Common Law, Common Ground, and Jefferson’s Principle, 112 YALE
L.J. 1717 (2003).
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rights, without using those terms—like a player of the old party game
Taboo, who must describe a particular term without using the five most
useful words for doing so. Bruen reflects a valiant attempt to avoid the
confusion created by changing conceptions of the common law. But
in the process it may have made the inquiry sound more novel than it
really is.
The general-law framework also provides a better explanation for
the Court’s criticized decision to ignore certain “outliers” such as court
decisions from Texas and West Virginia. While some have complained
that this part of Bruen’s analysis has the distinct air of special plead-
ing,
170
the basic enterprise of distinguishing outlier precedents is core
to the common-law method as well.
Nowhere as part of this analogical reasoning does Bruen require
courts to find a critical mass of similar firearm regulations from early
America. That interpretation of Bruen is based on misreading this ex-
planation of the analogical method:
In some cases, that inquiry will be fairly straightforward. For in-
stance, when a challenged regulation addresses a general societal
problem that has persisted since the 18th century, the lack of a dis-
tinctly similar historical regulation addressing that problem is rele-
vant evidence that the challenged regulation is inconsistent with
the Second Amendment. Likewise, if earlier generations addressed
the societal problem, but did so through materially different
means, that also could be evidence that a modern regulation is un-
constitutional. And if some jurisdictions actually attempted to en-
act analogous regulations during this timeframe, but those pro-
posals were rejected on constitutional grounds, that rejection surely
would provide some probative evidence of unconstitutionality.
171
To make proper sense of this passage, one must first understand
traditional Anglo-American constitutionalism. Both the traditional
English constitution and American constitutions were grounded in
customary law.
172
As John Philip Reid explains, “[C]ustom obtains the
force of law by a combination of time and precedent. Whatever had
been done from time immemorial in a community was legal; whatever
had been abstained from was illegal. To say an action was unprece-
dented was to say it was illegal.”
173
Bruen’s initial analogy passage instructs courts to apply traditional
common-law jurisprudential principles, nothing more, nothing less. If
170 E.g., Darrell A.H. Miller & Joseph Blocher, Manufacturing Outliers, 2022 SUP. CT.
REV. 49, 60.
171 Bruen, 142 S. Ct. at 2131.
172 JOHN PHILLIP REID, IN DEFIANCE OF THE LAW: THE STANDING-ARMY CONTROVERSY,
THE TWO CONSTITUTIONS, AND THE COMING OF THE AMERICAN REVOLUTION 160 (1981).
173 Id. (footnote omitted).
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Anglo-American society suffered from urban violence, and if from time
immemorial that violence was not addressed through a flat ban on the
possession of handguns, that “is relevant evidence” that the customary
right codified by the Second Amendment did not permit such regula-
tion.
174
To be clear, Bruen never states that a lack of a precedential regu-
lation is dispositive evidence of its unconstitutionality. Quite the con-
trary, the Court also recognizes that some laws will “implicat[e] un-
precedented societal concerns or dramatic technological changes.”
175
In this case, courts must analogize by adapting historical examples and
precedents to modern conditions.
176
How does a court determine
whether federal law may prohibit the carrying of a concealed weapon
aboard a commercial aircraft?
177
By looking at the law governing sen-
sitive places. The Court recognizes that a few locations, such as legis-
lative assemblies, polling places, and courthouses, had been off-limits
to weapons during the eighteenth and nineteenth centuries.
178
A court
must analogize from “those historical regulations” to determine the
constitutional validity of “new and analogous sensitive places.”
179
When looking for analogies and precedents, a court must not lose
sight of the mandate given by the Supreme Court. If Bruen means what
it says, then its two-step approach is aimed at determining whether a
challenged law is “consistent with this Nation’s historical tradition of
firearm regulation.”
180
The discussion of analogical reasoning is in ser-
vice of this objective. Analogical reasoning is not the tail that wags the
dog.
Thus, the requirement to determine whether a challenged law co-
heres with the country’s tradition of regulating weapons is best under-
stood as applying the traditional two-step approach familiar in the gen-
eral law of the right to bear arms. The strongest understanding of
Bruen is that the Supreme Court is adopting the standard of review
generally accepted by courts applying the right to bear arms, not some
novel and sui generis test that looks for a direct analogue of the specific
law.
174 Bruen, 142 S. Ct. at 2131.
175 Id. at 2132.
176 Id. at 2132–33.
177 See 49 U.S.C. § 46505 (2018).
178 Bruen, 142 S. Ct. at 2133.
179 Id.
180 Id. at 2126.
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D. Hard Cases
To be sure, not every case is easily governed by an analogy. Bruen
acknowledges this. In such cases, it is important not to neglect other
important elements of common-law legal reasoning. If the Second
Amendment really does codify a preexisting right, then judges must
look beyond the amendment’s semantic meaning to determine the le-
gal customs that were being codified. Yet, determining the scope of a
customary right is hard work, for customs are unwritten and often dis-
puted.
But this is an ancient problem. Importantly, the methods (and
difficulties) in determining the scope of the customary right to bear
arms are not sui generis. These problems inhere in determining the
scope of any unwritten law. At the very introduction of Blackstone’s
Commentaries, Blackstone notes “a very natural, and very material, ques-
tion arises: how are these customs or maxims [of common law] to be
known, and by whom is their validity to be determined?”
181
The answer is a familiar one, and it is no different in the right to
bear arms than it is in other areas of common law. To know the cus-
toms, one must examine precedents and look to reliable treatises,
which may contain “settled and first principles” based on ancient cases
lost to history.
182
Indeed, the Solicitor General made this point during
the United States v. Rahimi oral argument, when she explained that the
proper evidence of legal customs comes from “English practice, state
constitutional precursors, treatises, commentary, [and] state judicial
decisions.”
183
Thus, while the effort to determine legal custom looks
backward to history, the endeavor is decidedly legal and belongs to the
judge based on his legal training, not to the professor of history.
184
This is not to understate the degree of difficulty in many cases.
Determining the scope of the customary right to keep and bear arms
is particularly difficult because it requires judges to untangle rights and
mere liberties.
185
The possession and carrying of arms were lightly reg-
ulated in early America. The law mainly regulated arms when they
were kept and borne in ways that threatened the rights of others, such
as by imposing storage requirements on large quantities of gun powder
181 BLACKSTONE, supra note 22, at*69.
182 Id. at 69, 72.
183 Transcript of Oral Argument at 39, United States v. Rahimi, No. 22-915 (U.S. Nov.
7, 2023).
184 See BLACKSTONE, supra note 22, at *69 (explaining that the determination of legal
customs is made “by the judges in the several courts of justice” who learn them “from ex-
perience and study”).
185 We are using “rights” and “liberties” as approximating the Hohfeldian idea of
claim-rights and mere liberty rights. See Wesley Newcomb Hohfeld, Some Fundamental Legal
Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 30, 36 (1913).
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(which was a fire and explosion risk in cities) and by restricting the
carrying of arms when done in a manner that would likely breach the
peace.
186
Nothing stopped individuals (at least those who had the re-
sources) from owning cannons, having rockets, or maintaining pri-
vately armed ships. Nor, at the adoption of the Second Amendment,
were there many cases elucidating the scope of the right to bear arms.
So how does one untangle the right to keep and bear arms—that is, the
legal claim individuals have against the government not to regulate
arms in certain ways—from the mere liberty that early Americans had
to possess and carry all sorts of weapons (including some that the Fram-
ers may not have recognized as constitutionally protected)?
To untangle the “right” from the mere Framing-era “liberty,”
judges will often have to reason from first principles, at least where the
law is underdeveloped. Judges will have to look to the text and purpose
of the right. They will have to make judgments about whether legisla-
tures have regulated the right for proper purposes and whether the
regulations are sufficiently severe that they undermine the core func-
tion of the right. Analogies can assist in making these difficult judg-
ments, but only to a point.
Finally, one should not confuse this endeavor with living constitu-
tionalism. The first-principles reasoning that we are discussing is the
traditional work of the common-law judge: finding or declaring law, by
taking longstanding principles and concretizing them in specific cases
involving novel facts. Living constitutionalism, in contrast, allows for
judges to make law, and to make it by directly changing the legal prin-
ciples themselves. Think of the difference between a court deciding
whether the law of slander or libel applies to novel forms of media
187
and a court deciding to replace contributory negligence with compar-
ative negligence on policy grounds.
188
Or think of the difference be-
tween deciding whether admiralty jurisdiction extended to navigable
freshwater lakes in the age of the steamship,
189
and deciding to com-
pletely abolish a long-recognized privilege because its costs exceed its
186 See, e.g., Act of Jan. 29, 1795, ch. 2, 1795 Mass. Acts 436; Act in Addition to an Act
for Erecting of a Powder-House in Boston, no. 234, 1715 Mass. Acts 311; Act of Feb. 28,
1786, 1786 N.H. Laws 383; Act for Restraining and Punishing Privateers and Pirates, 1699
N.H. Acts 3, 4; Act Forbidding and Punishing Affrays, ch. 49, 1786 Va. Acts 35.
187 See, e.g., Lyrissa Lidsky, Cheap Speech and the Gordian Knot of Defamation Reform, 3 J.
FREE SPEECH L. 79, 84–85 (2023) (explaining that “courts have had to decide whether an
Internet post is slander or libel, whether a person who provides a hyperlink to an article has
‘published’ it for defamation purposes, and what to do about defamation cases based on
reviews or rankings determined by algorithms”).
188 See, e.g., Li v. Yellow Cab Co. of Cal., 532 P.2d 1226, 1232 (Cal. 1975).
189 The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 454–55 (1852).
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benefits.
190
As we have noted earlier, these distinctions were central to
the traditional role of a judge under the general law. The traditional
general-law approach allows judges to “expound” the fundamental law
but not to “alter” it.
191
III. BRUEN IN THE LOWER COURTS
While we think that the allegations of Bruen’s incoherence and
inconsistency are overstated, lower courts have struggled to apply it
correctly in some areas. Analogies are helpful only when someone has
an underlying theory about how to identify the relevant similarity.
192
In a judicial case, identifying that similarity requires the judge to dis-
cern the underlying legal principles that govern. Only with that legal
principle in hand can the judge analogize, adapt, and apply the law to
novel circumstances. Currently, judges are analogizing without under-
standing the legal principles that governed earlier precedents. This is
causing them either to reach incorrect judgments or to reach correct
judgments for the wrong reasons.
A. Arms Protected by the Second Amendment
Historically, constitutionally protected “arms” were those arms
particularly appropriate for defense of the community. Weapons of
purely private conflict, particularly those adapted to criminal use or
designed as concealed weapons, were not protected. Bad analogizing,
however—perhaps exacerbated by some inaccurate dicta in Heller—
has caused current precedent to invert the “arms” that are protected
under the Second Amendment. Today, courts find weapons of purely
private conflict protected, while denying protection to arms designed
for the common defense.
1. Semiautomatic Rifles Designated “Assault Weapons”
Some of the most prevalent challenges recently have been to state
and local laws that prohibit certain semiautomatic firearms designated
as “assault weapons.” Courts are split on whether these rifles are
“arms” within the meaning of the Second Amendment. One district
190 State v. Gutierrez, 482 P.3d 700, 711 (N.M. 2019), retracted in relevant part on reh’g,
id. at 725; see also Baude, supra note 168, at 1346.
191 See Letter from James Madison to N.P. Trist (Dec. 1831), in 9 THE WRITINGS OF
JAMES MADISON 471, 477 (Gaillard Hunt ed., 1910), quoted in Caleb Nelson, Stare Decisis
and Demonstrably Erroneous Precedents, 87 VA. L. REV. 1, 13 (2001), and William Baude, Con-
stitutional Liquidation, 71 STAN. L. REV. 1, 15–16 (2019).
192 See Blocher & Ruben, supra note 7, at 147 (“The judicial task is finding what prin-
ciples are reflected by the historical restrictions.”).
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court has concluded that these “arms” are in common use, and thus,
are presumptively protected by the Second Amendment.
193
Another
found it unlikely that these weapons are in common use, but has nev-
ertheless assumed arguendo that they are.
194
And a third believed that
“history and tradition demonstrate[d] that particularly ‘dangerous’
weapons are unprotected.”
195
In an appeal from this last decision, the
Seventh Circuit declared that arms “exclusively or predominantly use-
ful [for military purposes] in military service” are categorically unpro-
tected by the Second Amendment.
196
Despite the slight differences in theory, courts in all three cases
upheld these laws on the theory that banning these weapons is con-
sistent with the nation’s tradition of firearm ownership.
197
In making
this determination, courts analogized these laws to nineteenth-century
restrictions on Bowie knives, clubs, slungshots, and revolvers.
198
Courts
found this analogy appropriate because both sets of laws “were enacted
in response to pressing public safety concerns regarding weapons de-
termined to be dangerous” and because “they impose comparable bur-
dens on the right of armed self-defense.”
199
Examining the issue abstractly, these courts’ arguments from anal-
ogy are eminently reasonable. Nineteenth-century courts upheld bans
on possessing or carrying various dangerous weapons that had become
noxious to public safety.
200
And they are correct that these bans left a
variety of other weapons available for self-defense.
Reasonable as these analogies are, however, they are wrong, even
backwards, as a matter of original law. The general law permitted the
banning of noxious weapons for two reasons: (1) these weapons were
193 See Del. State Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland Sec., 664 F.
Supp. 3d 584, 595 (D. Del. 2023).
194 Hartford v. Ferguson, 676 F. Supp. 3d 897, 904 (W.D. Wash. 2023).
195 Bevis v. City of Naperville, 657 F. Supp. 3d 1052, 1067 (N.D. Ill.), aff’d, 85 F.4th 1175
(7th Cir. 2023), petition for cert. filed sub nom. Nat’l Ass’n for Gun Rts. v. City of Naperville,
92 U.S.L.W. 3208 (U.S. Feb. 12, 2024) (No. 23-880).
196 Bevis, 85 F.4th at 1194.
197 Del. State Sportsmen’s Ass’n, 664 F. Supp. 3d at 602–03; Hartford, 676 F. Supp. 3d at
906–07; Bevis, 657 F. Supp. 3d at 1069–73.
198 Del. State Sportsmen’s Ass’n, 664 F. Supp. 3d at 600–01; Hartford, 676 F. Supp. 3d at
905–06; Bevis, 657 F. Supp. 3d at 1070–73.
199 Del. State Sportsmen’s Ass’n, 664 F. Supp. 3d at 602–03 (citing N.Y. State Rifle & Pistol
Ass’n v. Bruen, 142 S. Ct. 2111, 2132–33 (2022)); accord Hartford, 676 F. Supp. 3d at 907
(quoting Bruen, 142 S. Ct. at 2133); Bevis, 657 F. Supp. 3d at 1073 (“The history of firearm
regulation, then, establishes that governments enjoy the ability to regulate highly danger-
ous arms (and related dangerous accessories).”).
200 See, e.g., Fife v. State, 31 Ark. 455, 458–61 (1876); Hill v. State, 53 Ga. 473, 474
(1874); Andrews v. State, 50 Tenn. (3 Heisk.) 165, 179, 186–87 (1871); Aymette v. State, 21
Tenn. (2 Hum.) 154, 158–59 (1840); English v. State, 35 Tex. 473, 476–77 (1871); State v.
Workman, 14 S.E. 9, 11 (W. Va. 1891).
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particularly useful for criminal purposes, and (2) these weapons had
no military or public defense value. To quote the Tennessee Supreme
Court’s rule (which the U.S. Supreme Court adopted in Miller), “The
Legislature, therefore, have a right to prohibit the wearing or keeping
weapons dangerous to the peace and safety of the citizens, and which
are not usual in civilized warfare, or would not contribute to the com-
mon defence.”
201
This rule was not some outlier position. Every nineteenth-century
court and legal treatise writer to consider the question understood that
arms useful for militia service fell within the very core of the right.
202
Courts debated whether handguns were such arms.
203
Courts debated
how far states could go in regulating public carry.
204
Courts debated
whether the right to keep and bear arms protected using arms for in-
dividual self-defense against crime, as opposed to using arms to resist
invasions or oppression.
205
But not even the most restrictive courts
201 Aymette, 21 Tenn. (2 Hum.) at 159.
202 See, e.g., Wilson v. State, 33 Ark. 557, 559 (1878); Fife, 31 Ark. at 458; Hill, 53 Ga. at
475; State v. Bias, 37 La. Ann. 259, 260 (1885); State v. Smith, 11 La. Ann. 633, 633 (1856);
Andrews, 50 Tenn. (3 Heisk.) at 179; Aymette, 21 Tenn (2 Hum.) at 159–60; English, 35 Tex.
at 475; 2 BISHOP, CRIMINAL LAW, supra note 106, § 124, at 75; BLACK, supra note 106, § 144,
at 403; COOLEY, supra note 106, at 299.
203 Compare, e.g., Hill, 53 Ga. at 474–75 (stating judge’s belief that, as a matter of first
principles, handguns were not protected arms, but recognizing that precedent was other-
wise), and Nunn v. State, 1 Ga. 243, 246 (1846) (holding that pistols carried openly were
protected arms), and State v. Duke, 42 Tex. 455, 458 (1875) (protecting “such pistols at
least as are not adapted to being carried concealed”), and Fife, 31 Ark. at 461 (military pis-
tols only), with English, 35 Tex. at 476–77 (leaving most pistols unprotected), and Workman,
14 S.E. at 11 (all pistols unprotected).
204 Compare, e.g., Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 91–92 (1822) (holding
that the legislature lacks power to limit the right to bear arms in any manner), and Simpson
v. State, 13 Tenn. (5 Yer.) 356, 360 (1833) (“By this clause of the constitution, an express
power is given and secured to all the free citizens of the State to keep and bear arms for
their defence, without any qualification whatever as to their kind or nature . . . .”), with
Haile v. State, 38 Ark. 564, 567 (1882) (upholding law requiring army pistol to be carried
openly in the hand), and Aymette, 21 Tenn. (2 Hum.) at 160 (disagreeing with Bliss and
stating, “The citizens have the unqualified right to keep the weapon, it being of the charac-
ter before described as being intended by the provision. But the right to bear arms is not
of that unqualified character.”), and Commonwealth v. Murphy, 44 N.E. 138, 138 (Mass.
1896) (“[I]t has been almost universally held that the legislature may regulate and limit the
mode of carrying arms. The early decision to the contrary, of Bliss v. Com., has not been
generally approved.” (citations omitted)).
205 Compare, e.g., State v. Reid, 1 Ala. 612, 619 (1840) (individual self-defense pro-
tected), and Nunn, 1 Ga. at 251 (same), and Cockrum v. State, 24 Tex. 394, 401 (1859), and
Duke, 42 Tex. at 458 (“The arms which every person is secured the right to keep and bear
(in the defense of himself or the State, subject to legislative regulation), must be such arms
as are commonly kept, according to the customs of the people, and are appropriate for
open and manly use in self-defense, as well as such as are proper for the defense of the
State.”), with State v. Buzzard, 4 Ark. 18, 25–26 (1842) (common defense only).
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debated whether rifles and muskets designed for military use fell
within the “arms” protected by the right to keep and bear arms.
206
On
this question, the general law was not just general; it was unanimously
understood.
Measured by this understanding, so-called assault weapons are at
the core of the right to keep and bear arms. Because of the importance
of having a population ready for military service, courts understood
the right to keep and bear arms to include at least those arms appro-
priate for individual militia service. Protected arms included rifles,
muskets, bayonets, and (according to most courts) at least some pis-
tols.
207
As the Supreme Court explained, “when called for service
[able-bodied] men were expected to appear bearing arms supplied by
themselves and . . . in common use at the time.”
208
Yet, these assault-
weapon bans identify prohibited weapons based on certain enumer-
ated military features, such as pistol grips and bayonet lugs.
209
In other
words, these assault-weapon bans prohibit weapons because they are
useful for militia service. From the point of view of the general-law
right to keep and bear arms, this is backwards.
210
Yet, in a recent appeal from the Illinois case, the Seventh Circuit
explicitly declared this backward understanding to be the proper in-
terpretation of the Second Amendment. The Seventh Circuit under-
stood Heller to divide arms into two categories: military arms (e.g., the
M-16 rifle) and civilian arms for self-defense (e.g., an ordinary hand-
gun).
211
The court then held that because semiautomatic rifles were
closer to military arms than to self-defense arms, these weapons were
categorically unprotected by the Constitution.
212
The Seventh Circuit’s methodology does not track Bruen’s. The
court never grappled with overwhelming caselaw holding that military
arms were within the core of the right. Nor did it discuss the learned
206 E.g., Aymette, 21 Tenn. (2 Hum.) at 160–61; English, 35 Tex. at 476.
207 See cases supra note 203.
208 United States v. Miller, 307 U.S. 174, 179 (1939).
209 See, e.g., CAL. PENAL CODE § 30515(a)(1) (West 2021); CONN. GEN. STAT. § 53-
202a(1)(E) (2023); DEL. CODE ANN. tit. 11, § 1465(6)(a) (Supp. 2023); D.C. CODE § 7-
2501.01(3A)(A)(i)(IV) (2018); WASH. REV. CODE § 9.41.010(2)(a)(iv) (2023).
210 To the extent courts feel compelled to reach this conclusion because of Heller’s
emphasis on individual self-defense and its dicta on “dangerous and unusual weapons,”
District of Columbia v. Heller, 554 U.S. 570, 627 (2008), perhaps Bruen, and future cases,
will function as a course correction.
211 Bevis v. City of Naperville, 85 F.4th 1175, 1195 (7th Cir. 2023), petition for cert. filed
sub nom. Nat’l Ass’n for Gun Rts. v. City of Naperville, 92 U.S.L.W. 3208 (U.S. Feb. 12, 2024)
(No. 23-880). In dicta, the court also recognized that some arms may have both civilian and
military applications, and said that these arms were presumptively protected. Id. at 1195
n.8.
212 Id. at 1195.
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treatises, all of which agreed with these decisions. Nor did it look at
extensive legislative precedents, from the Assize of Arms in 1181
through the Militia Act of 1792, all of which compelled ordinary citi-
zens to have military arms at the ready.
213
(In contrast, the Supreme
Court’s opinion in Miller extensively surveyed such laws.)
214
Instead,
the Seventh Circuit reached its conclusion by conducting a lengthy
(and questionable) exegesis of some dicta in Heller about “dangerous
and unusual” weapons and the centrality of individual self-defense to
the Second Amendment.
215
And we question that exegesis, in part, be-
cause the Seventh Circuit reached its result by construing Heller’s self-
defense language to apply only to individual self-defense against crime,
thereby abrogating any right to bear arms for community defense.
216
Despite our disagreement with the Seventh Circuit’s methodol-
ogy, it is essential to note the centrality of the Second Amendment’s
purpose to its judicial interpretation. This is because to conduct the
first-principles reasoning we discussed above, judges should have a the-
ory about what function the right to keep and bear arms serves. This
is what enables them to tell whether the right’s core has been nullified,
as opposed to merely regulated. To its credit, the Seventh Circuit may
have had such a theory—but it was a theory derived from Heller rather
than from history.
217
To the extent that Heller commanded courts to
focus on the purpose of individual self-defense in exclusion of the pur-
pose of community defense (which we do not agree that it did), it cre-
ated a great tension with the historical understanding of the right to
keep and bear arms.
218
Clarifying the core function of the right to keep and bear arms is
something the Supreme Court may have to do in the future. For a
judge who believes that the Second Amendment’s purpose is exclu-
sively individual self-defense against crime will reach different conclu-
sions about which arms are protected and what constitutes a “reasona-
ble regulation” of the right from a judge who recognizes that the
Amendment additionally protects the right to bear arms for commu-
nity defense. Lower court judges will struggle to apply first-principles
reasoning in Second Amendment cases without clarification of this im-
portant issue.
213 See, e.g., Assize of Arms 1181, 27 Hen. 2 (Eng.); Statute of Winchester 1285, 13
Edw. 1 Stat. Wynton c. 6 (Eng.); Act of May 8, 1792, ch. 33, 1 Stat. 271.
214 United States v. Miller, 307 U.S. 174, 179–82 (1939).
215 Bevis, 85 F.4th at 1190 (quoting Friedman v. City of Highland Park, 784 F.3d 406,
408 (7th Cir. 2015)).
216 Id.
217 See id.
218 See Leider, supra note 89, at 1643–47.
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A general-law approach would make quick work of these cases.
The same law that would find assault weapons within the core of the
right to keep and bear arms would exclude these weapons. These
weapons “belong to no military vocabulary”; they are not arms useful
for public defense.
224
Nor are these weapons “appropriate for open
and manly use in self-defense,” as are shotguns and similar firearms.
225
The general law did not afford constitutional protection to small, dan-
gerous weapons primarily designed as concealed weapons. While one
can find a few outlier decisions to the contrary,
226
the great weight of
authority holds that such weapons are not “arms” within the meaning
of the Second Amendment.
227
219 See, e.g., State v. Herrmann, 873 N.W.2d 257, 265 (Wis. Ct. App. 2015).
220 See, e.g., State v. DeCiccio, 105 A.3d 165, 173 (Conn. 2014).
221 See, e.g., Teter v. Lopez, 76 F.4th 938, 942 (9th Cir. 2023), vacated pending reh’g en
banc, 93 F.4th 1150 (9th Cir. 2024).
222 See Maloney v. Singas, 351 F. Supp. 3d 222, 238 (E.D.N.Y. 2018).
223 Id. (citation omitted) (citing Maloney v. Singas, 106 F. Supp. 3d 300, 314 n.22
(E.D.N.Y. 2015)).
224 English v. State, 35 Tex. 473, 477 (1871).
225 State v. Duke, 42 Tex. 455, 458–59 (1875); accord State v. Smith, 11 La. Ann. 633,
633 (1856) (protected arms are “such as are borne by a people in war, or at least carried
openly” (emphasis added)); State v. Reid, 1 Ala. 612, 619 (1840) (explaining that only when
arms are “carried openly, that they can be efficiently used for defence”); infra note 229 and
accompanying text (distinguishing arms and concealed weapons).
226 See, e.g., Cockrum v. State, 24 Tex. 394, 403 (1859) (dictum) (“The right to carry a
bowie-knife for lawful defense is secured, and must be admitted.”); State v. Delgado, 692
P.2d 610, 614 (Or. 1984) (invalidating ban on the possession of switchblade knives); see also
Patrick Baude, Interstate Dialogue in State Constitutional Law, 28 RUTGERS L.J. 835, 843 (1997)
(alluding to a particular local history behind Delgado’s reasoning); David B. Kopel, Clayton
E. Cramer & Joseph Edward Olson, Knives and the Second Amendment, 47 U. MICH. J.L.
REFORM 167, 184–90 (2013) (providing a first-principles argument for why such knives
should have been deemed protected).
227 See sources cited supra note 202; State v. Kerner, 107 S.E. 222, 224 (N.C. 1921).
Note that some modern weapons (e.g., pepper spray and stun guns) are useful for both
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3. Prohibition Versus Regulation of Protected Arms
We end the discussion of protected arms by also cautioning that
identifying which arms are constitutionally protected is only the first
step in analyzing whether a regulation of specific weapons is constitu-
tional. If certain weapons (e.g., butterfly knives) are not “arms” pro-
tected by the Constitution, then the legislature may regulate or ban
those weapons entirely.
228
Such a regulation would be upheld at
Bruen’s first step: that the law falls outside the conduct protected by
the text of the Amendment.
It does not follow, however, that if a weapon is constitutionally
protected, then it is beyond all legislative regulation. Rather, constitu-
tionally protected “arms” are subject to a different analytical frame-
work for judicial review. Such weapons may be reasonably regulated
using the police power, but they may not be banned entirely.
For example, it has long been held to be a reasonable regulation
of protected arms to prohibit handguns “under a certain length, which
if reasonable will prevent the use of pistols of small size which are not
borne as arms but which are easily and ordinarily carried concealed.”
229
Likewise, even if AR-15s are protected arms today, the legislature may
still require that their barrels be over a certain length to prevent their
use as concealed weapons.
The constitutionality of restrictions on the capacity of ammuni-
tion magazines used in protected arms is also a question of whether
the right to keep arms has been reasonably regulated. We do not an-
swer here exactly what size magazines the legislature must allow for
protected arms. But we do give some methodological pointers. A mag-
azine restriction that limited protected arms to a two-round capacity
would be unconstitutional because it would unreasonably inhibit any
form of self-defense. At the other extreme, a prohibition on 100-round
drum magazines would not trigger constitutional concerns because
such unusually large magazines are not commonly used for either pub-
lic or private defense. There is obviously much space between these
extremes. Determining where to draw the constitutional line heavily
depends on first-principles reasoning.
public and private defense and are not as dangerous or deadly as Bowie knives and similar
weapons. Given these features, some of these weapons might be constitutionally protected,
despite their concealability. See Caetano v. Massachusetts, 577 U.S. 411, 412 (2016) (per
curiam); id. at 419–20 (Alito, J., concurring in judgment). See generally Eugene Volokh,
Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms
and Defend Life, 62 STAN. L. REV. 199, 218–22 (2009).
228 See supra notes 130, 199 and accompanying text; Andrews v. State, 50 Tenn. (3
Heisk.) 165, 182, 186–87 (1871).
229 Kerner, 107 S.E. at 225.
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Here, again, we emphasize the centrality of the right’s purpose to
determinations about whether legislative restrictions are reasonable.
For example, a judge who understands the right to bear arms to pro-
tect only individual self-defense against crime will likely uphold more
stringent magazine restrictions than a judge who understands that the
right protects both private and public defense.
230
This is because indi-
viduals generally need to use fewer rounds when acting in personal
self-defense than when engaged in law enforcement or military opera-
tions.
Thus, beliefs about the underlying principles and purposes of the
right to bear arms heavily influence how a judge expounds the right.
The Framers obviously had no conception of modern automatic and
semiautomatic weapons, nor of the ammunition magazines that they
use. In evaluating restrictions on such weapons, judges cannot analo-
gize to Framing-era regulations, for no analogous regulations existed.
Where arms are constitutionally protected, they may be regulated but
not banned. When legislatures regulate such weapons, judges will have
to reason from first principles to determine whether the regulations
are reasonable or materially frustrate the right. The determination of
what frustrates the right requires some commitment about what gives
the right value. For cases involving the right to bear arms, judges will
not be able to avoid these first-principle questions.
230 For example, consider state court decisions evaluating the constitutionality of bans
on certain kinds of automatic or semiautomatic weapons and restrictions on magazine ca-
pacity under state constitutional provisions protecting the right to bear arms for defense of
the people and the state. These courts have upheld such laws as reasonable regulations of
the right to bear arms for individual self-defense. Notably, these courts have not analyzed
whether such laws are reasonable regulations of the right to bear arms for the common
defense or defense of the state. These decisions have either ignored state constitutional
provisions protecting the right to bear arms for defense of the state or they have declared
such provisions “obsolete.” For opinions exclusively determining whether the laws were
reasonable regulations of the right to bear arms for individual self-defense against crime,
see, for example, Robertson v. City & County of Denver, 874 P.2d 325, 334–35 (Colo. 1994);
Benjamin v. Bailey, 662 A.2d 1226, 1232–33 (Conn. 1995); and Arnold v. City of Cleveland, 616
N.E.2d 163, 173 (Ohio 1993). See also Rocky Mountain Gun Owners v. Polis, 467 P.3d 314,
318 n.3 (Colo. 2020) (claiming that plaintiffs failed to preserve an argument that Colo-
rado’s magazine restriction violated the right to bear arms “in aid of the civil power when
thereto legally summoned” (quoting COLO. CONST. art. II, § 13)). For opinions declaring
that the right to bear arms for defense of the state is obsolete, see People v. Brown, 235 N.W.
245, 246 (Mich. 1931); and State v. Misch, 256 A.3d 519, 527 (Vt. 2021). Judges who con-
tinue to value the right to bear arms for collective defense might have reached different
conclusions in these cases.
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B. Sensitive Places
After Bruen, a major question has been what specific locations can
legislatures declare off-limits to the public carry of weapons. In dicta,
Heller said that its holding should not “be taken to cast doubt on . . .
laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings.”
231
Bruen repeated the dicta, with
the added gloss that all of Manhattan could not be a sensitive place.
232
Several states have tried to nullify or mitigate Bruen’s practical effect by
expanding the places where licensed individuals cannot carry firearms.
These locations include, among many others, restaurants, theaters,
beaches, parks, hospitals, public transportation, and all private prop-
erty without the explicit consent of the owner.
233
New Jersey even went
so far as to ban the carrying of loaded and accessible firearms in auto-
mobiles.
234
After Bruen, district courts have gone location by location to de-
cide whether each location restriction has a Framing-era analogue. In
the case of government buildings, a New Jersey district court held that
the constitutional validity of a prohibition must be determined by anal-
ogizing to each government property.
235
The court found that the ab-
sence of historical laws banning guns specifically at public libraries and
museums meant that such regulations are invalid.
236
The same for bars
and restaurants.
237
Despite considerable nineteenth-century prece-
dent upholding restrictions of firearms at public gatherings, the court
further found that these laws were not “‘well-established’ and ‘repre-
sentative’ historical firearm regulations to justify prohibiting Carry Per-
mit holders from carrying their handguns at public gatherings.”
238
The
court also invalidated New Jersey’s prohibition against carrying fire-
arms on private property without the explicit consent of the owner be-
cause New Jersey could not find similar historical laws.
239
231 District of Columbia v. Heller, 554 U.S. 570, 626 (2008).
232 N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2134 (2022).
233 See, e.g., N.J. STAT. ANN. § 2C:58-4.6 (West Supp. 2023).
234 § 2C:58-4.6(b).
235 Koons v. Platkin, 673 F. Supp. 3d 515, 606 (D.N.J. 2023) (explaining that “prohibi-
tions on carrying firearms at government buildings tend not to violate the Second Amend-
ment, but to the extent that a dispute arises concerning a prohibition at a particular gov-
ernment building, resolution will turn on whether analogies to historical regulations can
justify the challenged law”), appeals docketed sub nom. Koons v. Att’y Gen. N.J., Nos. 23-1900,
23-2043 (3d Cir. argued Oct. 25, 2023).
236 Id. at 643–44.
237 Id. at 644–45.
238 Id. at 630 (quoting N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133
(2022)).
239 Id. at 618–23.
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The Maryland district court undertook a similar analysis, reaching
somewhat different results. The court upheld Maryland’s ban on fire-
arms in museums on the strength of post–Civil War laws restricting
weapons “in places of gathering for education, literary, or scientific
purposes.”
240
The court also upheld the ban on possessing firearms in
state parks based on mid-nineteenth-century municipal bans at munic-
ipal parks.
241
The court, however, enjoined Maryland’s ban on pos-
sessing weapons at locations that serve alcohol because these bans “are
not analogous to any established sensitive place.”
242
It also enjoined
Maryland’s presumptive ban on carrying weapons in all private build-
ings because the court could not find a historical tradition of requiring
private property owners to give express consent before a person could
carry a weapon on property generally held open to the public.
243
And
the court enjoined the law against having firearms within 1,000 feet of
a public demonstration after being warned by a law enforcement of-
ficer that a demonstration was taking place, again, because it could not
find enough historical analogues.
244
The district court, however, ex-
pressed regret at that holding, explaining that “it is obligated to ques-
tion the constitutionality of Maryland’s restriction on carrying at pub-
lic demonstrations because of Bruen’s narrow historical framework”
and that it would have upheld the law on strict or intermediate scru-
tiny.
245
The examples given are representative samples. These laws
banned public carry in dozens of other places. But with respect to
these other places, the analysis from these courts was substantially the
same: to go location by location and ask whether there were sufficient
historical examples to justify the modern ban.
This historical approach to sensitive places is also spawning some
nascent scholarship on what counts as adequate precedent. Although
legislative restrictions on carrying firearms in public transportation ve-
hicles are relatively modern, Josh Hochman has argued that private-
law traditions should count, too.
246
He has compiled many examples
of private companies prohibiting the carrying of loaded firearms in
railroad cars.
247
He argues that these examples should serve as
240 Kipke v. Moore, No. GLR-23-1293, 2023 WL 6381503, at *8 (D. Md. Sept. 29, 2023).
241 Id. at *10.
242 Id. at *11.
243 Id. at *13–14.
244 Id. at *15–16.
245 Id. at *16.
246 Joshua Hochman, Note, The Second Amendment on Board: Public and Private Historical
Traditions of Firearm Regulation, 133 YALE L.J. 1676 (2024).
247 Id. at 1690–1701.
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precedents to prohibit the carrying of weapons in modern forms of
transportation.
248
We do not think this kind of analogy parsing is profitable or re-
quired by Bruen. The constitutional validity of a prohibition on carry-
ing arms aboard aircraft does not turn on whether the eighteenth and
nineteenth centuries had analogous regulations of ships and railcars.
The search should instead be for the legal principles that govern sen-
sitive places. It is these legal principles that must be adapted, not the
Framing era’s specific applications.
This becomes clear when Bruen rejects New York City’s “attempt
to characterize New York’s proper-cause requirement as a ‘sensitive-
place’ law.”
249
Here, the Court looks to legal principles and engages
in legal reasoning. It understands New York to be arguing that sensi-
tive places are anywhere large numbers of people congregate and
which are under police protection.
250
And this cannot be the correct
legal principle behind the sensitive place doctrine, the Court explains,
because that principle “would in effect exempt cities from the Second
Amendment and would eviscerate the general right to publicly carry
arms for self-defense.”
251
This is straightforward constitutional inter-
pretation: ensuring that the legal interpretation of a provision coheres
with the goals or aims that the provision was designed to serve.
252
No-
tably, the Court does not conduct a fourteen- or thirty-seven-state sur-
vey of sensitive place restrictions in 1791 or 1868.
When it comes to determining how expansively a legislature may
prohibit weapons in specific locations, probably the most important
principle is that the legislature cannot designate places (either individ-
ually or when aggregated) that operate to effectively deny people most
of the right to bear arms outside the home. This is why designating
ordinary, common, and necessary means of daily transit (e.g., cars) as
sensitive places is too broad. Meanwhile designating more specialized
and rarer forms of transportation (like airplanes and most interstate
railroads) may well be permissible. The nation’s history of firearm reg-
ulation (and of rights regulation more broadly) permits regulation of
the right, not infringement or abridgement. Until they reach this lim-
itation, legislatures have flexibility to determine that having weapons
in certain areas is inconsistent with public safety or morals. They are
not bound to precise eighteenth- or nineteenth-century analogues of
specific places.
248 Id. at 1701–26.
249 N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2133 (2022).
250 Id. (quoting Brief for Respondents at 34, Bruen, 142 S. Ct. 2111 (No. 20-843)).
251 Id. at 2134.
252 BARNETT & BERNICK, supra note 43, at 10–11.
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IV. RAHIMI AND BEYOND
This brings us to the Supreme Court’s currently pending case
United States v. Rahimi, a case reviewing the Fifth Circuit’s holding that
18 U.S.C. § 922(g)(8)—which forbids gun possession by those subject
to domestic violence restraining orders
253
—is facially unconstitu-
tional.
254
There is much to be said on the merits of the case, but our
central point here is one of methodology. The Fifth Circuit erred by
analyzing the case at the level of overly specific analogies—too close to
demanding the kind of “historical twin” or “dead ringer” that Bruen
rejects.
255
Instead, the case should be approached at the level of general-law
principle—by asking not just who historically has been denied the right
to arms, but why and to what extent. Section 922(g)(8), like many fed-
eral prohibitions, amounts to a total denial of the right for certain peo-
ple. In evaluating the constitutionality of this ban, the most important
questions are the public interests the state seeks to pursue and whether
pursuing those interests with a complete ban on possession has a basis
in general-law principles.
For instance, then–Seventh Circuit Judge Barrett derived from the
historical sources a basic principle that “legislatures have the power to
prohibit dangerous people from possessing guns. But that power
253 For reference, the full prohibition is:
(g) It shall be unlawful for any person—
. . . .
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual
notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an
intimate partner of such person or child of such intimate partner or
person, or engaging in other conduct that would place an intimate
partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat
to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or
threatened use of physical force against such intimate partner or child
that would reasonably be expected to cause bodily injury . . .
. . . .
to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign commerce.
18 U.S.C. § 922(g) (2018).
254 See United States v. Rahimi, 61 F.4th 443, 461 (5th Cir. 2023), cert. granted, 143 S.
Ct. 2688 (2023).
255 Bruen, 142 S. Ct. at 2133 (emphasis omitted).
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extends only to people who are dangerous.”
256
As then-Judge Barrett
argued, this dangerousness principle can perhaps be gleaned from dis-
cussions at the state conventions to ratify the original Constitution, and
is certainly more plausible as a matter of Founding-era law than a
broader principle of disarming all lawbreakers, or even all criminal fel-
ons.
257
At the level of method, this is exactly the right kind of principle
for adjudicating the right to keep and bear arms. It would be a defen-
sible approach for the Court to take in analyzing § 922(g) in Rahimi
and future cases.
258
Applying a hypothetical general-law dangerousness principle
would provide a reason to reject the Fifth Circuit’s approach in Rahimi.
The Fifth Circuit found § 922(g)(8) facially unconstitutional.
259
But
§ 922(g)(8)(C)(i) applies only to those restraining orders that “in-
clude[] a finding that” the defendant “represents a credible threat to
the physical safety” of their partner or child—that is, a specific finding
of dangerousness.
260
If a general-law dangerousness principle exists,
this provision certainly satisfies it. So § 922(g)(8) as a whole would not
be facially unconstitutional by depriving dangerous individuals of
arms.
261
Assuming the dangerousness principle is correct, the other half of
§ 922(g)(8)—clause (C)(ii)—presents a serious problem. That provi-
sion does not require any finding of dangerousness, applying to any
restraining order that explicitly prohibits the use of physical force. To
uphold § 922(g)(8)(C)(ii) would require judges to give Congress a fair
measure of freedom to regulate dangerousness prophylactically, even
256 Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting).
257 Id. at 454–56.
258 We bracket various questions of substance, among them: whether reasonable
grounds to suspect future dangerousness is a correct principle by which certain individuals
may be barred from having arms; whether the dangerousness principle, if it is correct, per-
mitted the government to completely ban a person from possessing weapons as opposed to
limiting him from carrying them in public; and whether the government’s power to regu-
late weapons possession is broader when it is exercising the war power (e.g., confiscating
arms from Loyalists during the Revolutionary War) versus exercising the domestic police
power.
259 Rahimi, 61 F.4th at 461.
260 18 U.S.C. § 922(g)(8)(C)(i) (2018).
261 We leave aside the arguments that § 922(g)(8) is invalid for procedural reasons,
whether analyzed under the Fifth and Fourteenth Amendments’ Due Process Clauses or
the Second Amendment and the right to keep and bear arms. Thus, for example, in
Rahimi’s Supreme Court brief he acknowledges that the restraining order contained a find-
ing that he was a “credible threat” to “physical safety,” but he nonetheless objects that the
finding was “boilerplate” and without meaningful judicial scrutiny. Brief for Respondent
at 5, United States v. Rahimi, No. 22-915 (U.S. Sept. 27, 2023); see also Rahimi, 61 F.4th at
465–66 (Ho, J., concurring) (raising concerns about abuse of process when restraining or-
ders are issued). We do not tackle such questions here.
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in cases involving a permanent and total denial of the right. That may
be asking too much of the general law.
These questions, and this framework, will have application beyond
Rahimi. The Court is already confronting multiple cases about the con-
stitutionality of other federal prohibitions, including the prohibition
on possession of guns by any felon.
262
Again, something like the dan-
gerousness principle would give the Court a tractable way to adjudicate
the lawful scope of this statute. If the dangerousness principle is the
lodestar, a complete lifetime ban on possession of a firearm by any
felon is plainly too broad. Rather, the dangerousness principle would
require more proportionality and tailoring between the government’s
interests and the burden on the right. For one thing, it would support
a distinction between some felonies and others. At the extremes, a
murder conviction has long been thought obvious evidence of future
dangerousness; but it seems impossible to imagine that a conviction
for making false statements about stock transactions would be.
263
Ex-
actly where in between to draw the line is something the courts are
currently debating and would eventually resolve in common-law fash-
ion.
264
For another thing, the constitutionality of § 922(g) might be bol-
stered by—and might even require—tailoring not just of the triggering
offense but of the duration of disarmament. A potentially important
but moribund provision of federal law, 18 U.S.C. § 925(c), allows those
who are prohibited from possessing firearms to “make application to
the Attorney General for relief from the disabilities imposed by Federal
laws.”
265
[T]he Attorney General may grant such relief if it is established to
his satisfaction that the circumstances regarding the disability, and
the applicant’s record and reputation, are such that the applicant
will not be likely to act in a manner dangerous to public safety and
that the granting of the relief would not be contrary to the public
interest.
266
262 See United States v. Cunningham, 70 F.4th 502 (8th Cir.), reh’g denied, No. 22-1080,
2023 WL 5606171 (8th Cir. 2023), petition for cert. filed, No. 23-6602 (U.S. Jan. 25, 2024);
Range v. Att’y Gen. U.S., 69 F.4th 96 (3d Cir. 2023), petition for cert. filed sub nom. Garland v.
Range, 92 U.S.L.W. 3084 (U.S. Oct. 5, 2023) (No. 23-374); United States v. Jackson, 69 F.4th
495 (8th Cir.), reh’g denied, 85 F.4th 468 (8th Cir.), petition for cert. filed, No. 23-6170 (U.S.
Nov. 28, 2023).
263 See C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 HARV. J.L. & PUB.
POL’Y 695, 696, 699 (2009).
264 Courts may also owe some deference to the legislature about where the precise line
should be. But even here, courts would be expected to police the outer bounds of proper
legislative discretion.
265 18 U.S.C. § 925(c) (2018).
266 Id.
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Section 925(c) also provides for judicial review of a denial of this ap-
plication.
267
Taken seriously, this provision could do a great deal to render the
various federal firearms provisions consistent with a hypothetical gen-
eral-law dangerousness principle.
268
Part of the standard for relief is
basically a dangerousness principle (“likely to act in a manner danger-
ous to public safety”
269
), and so this might be the appropriate legal
channel for anybody who would otherwise have an as-applied constitu-
tional challenge to the federal prohibitions.
However, for over thirty years, Congress has blocked the imple-
mentation of § 925(c). As the Bureau of Alcohol, Tobacco, Firearms,
and Explosives reports,
Although federal law provides a means for the relief of firearms dis-
abilities, ATF’s annual appropriation since October 1992 has pro-
hibited the expending of any funds to investigate or act upon ap-
plications for relief from federal firearms disabilities submitted by
individuals. As long as this provision is included in current ATF
appropriations, ATF cannot act upon applications for relief from
federal firearms disabilities submitted by individuals.
270
And because ATF cannot review the petitions at all, the Supreme Court
has held, judicial review is unavailable too.
271
Implementing a general-
law approach through a dangerousness principle might force Congress
to reconsider this intransigence and restore § 925 to its original role,
or else face the legal consequences.
272
Admittedly, a general-law approach to evaluate laws restricting
who may possess a firearm is more difficult than using the approach to
evaluate restrictions on public carry. Early Americans had few laws
267 Id.
268 See Kari Lorentson, Note, 18 U.S.C. § 922(g)(1) Under Attack: The Case for As-Applied
Challenges to the Felon-in-Possession Ban, 93 NOTRE DAME L. REV. 1723, 1740–41 (2018); Dru
Stevenson, In Defense of Felon-in-Possession Laws, 43 CARDOZO L. REV. 1573, 1619 (2022). But
see Atkinson v. Garland, 70 F.4th 1018, 1035 & n.3 (7th Cir. 2023) (Wood, J., dissenting)
(arguing that § 922(g)(1) is constitutional, and that “[w]hile we certainly would have a dif-
ferent case before us if section 925(c) were available, my argument does not depend on its
existence”); Binderup v. Att’y Gen. U.S., 836 F.3d 336, 350 (3d Cir. 2016), abrogated in part
by N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).
269 § 925(c).
270 Is There a Way for a Prohibited Person to Restore Their Right to Receive or Possess Firearms
and Ammunition?, BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES (Aug. 21,
2019), www.atf.gov/firearms/qa/there-way-prohibited-person-restore-their-right
-receive-or-possess-firearms-and [https://perma.cc/D54N-DHCV].
271 United States v. Bean, 537 U.S. 71, 78 (2002).
272 We take no position on the correct outcome as a matter of severability if Congress
continues to block the implementation of § 925(c). See generally William Baude, Severabil-
ity First Principles, 109 VA. L. REV. 1, 41–56 (2023), for possibilities.
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restricting who may possess a firearm, and the few laws that they had
often involved invidious discrimination based on race and religion.
This has prompted an inquiry into whether lawyers should cite these
laws in litigation, which, in cases involving a deprivation of the right to
keep arms, may be the only Framing-era precedents they have.
273
One
scholar has suggested that lawyers have two viable choices, either to
“renounce” these laws or to “abstract from their specific application a
broader principle that might be applied consistently with contempo-
rary values and understandings.”
274
We think a permutation of the lat-
ter approach is the correct one. In these cases, lawyers and judges
should seek to discern the general-law principles that undergird these
laws and to apply those principles today, except where the legal prin-
ciples have been otherwise changed (e.g., by the Fourteenth Amend-
ment).
Take, for example, laws prohibiting Indians, slaves, and Loyalists
from having arms. The legal principle governing these examples is
that certain individuals are not part of the political community (i.e.,
“the people”) in whom the right to keep and bear arms is vested, par-
ticularly those in a state of war with the political community or who
would rise up against it if given the opportunity. That legal principle
remains valid today in some ways—enemy aliens in wartime, for exam-
ple, are clearly not part of “the people” in whom the right to bear arms
is vested—but in other ways it has been abrogated by the expansion of
citizenship. The once-acceptable idea that a state may adopt more re-
strictive gun control laws applied only to certain races based on their
peculiar status
275
has been thoroughly abrogated by the Thirteenth and
Fourteenth Amendments.
276
But perhaps there are other categories of
people today, such as minors, as to whom the peculiar-status principle
still has some validity.
To be sure, these specific legal principles can be debated, and de-
fending them all is not our point here. The important point is that the
underlying principles may have continued validity, even where the spe-
cific Framing-era applications have been confined to the dustbin of
history. Moreover, one should note that these legal principles can be
identified at a relatively high level of specificity. They do not permit
discerning from these precedents vague and malleable abstract princi-
ples, such as that the legislature has broad discretion to disarm individ-
uals, which, if accepted, could justify a total destruction of the right.
273 See Jacob D. Charles, On Sordid Sources in Second Amendment Litigation, 76 STAN. L.
REV. ONLINE 30, 31 (2023).
274 Id. at 34–35.
275 State v. Newsom, 27 N.C. (5 Ired.) 250, 254–55 (1844).
276 See Strauder v. West Virginia, 100 U.S. 303, 306 (1880); Baude, Campbell & Sachs,
supra note 13, at 1235, 1238–39.
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Whether and how the Court will implement these general-law
principles is something that will have to be left to future cases. Indeed,
as in any common-law field, and so many other areas of law, it is diffi-
cult to fully assess a decision like Bruen until its meaning has been “liq-
uidated and ascertained by a series of particular discussions and adju-
dications.”
277
But our fundamental point is that this kind of general
common-law exposition is what Bruen calls for—not blanket deference
to the legislature or the mindless parsing of historical analogies.
CONCLUSION
Readers of Bruen who see it as breaking new interpretive ground
have found a lot of room to overread or underread its scope—either
by exhibiting excessive deference to legislative abridgments of the
right to keep and bear arms, or by exhibiting excessive skepticism of
any novel form of regulation. We think Bruen calls for something more
moderate and straightforward. The key is to realize that instead of
breaking new ground, it breaks very old ground, making use of classical
elements of our legal tradition: original law, preexisting rights, and the
general law.
277 THE FEDERALIST NO. 37, at 236 (James Madison) (Jacob E. Cooke ed., 1961); cf.
Baude, supra note 191.