Bruen, Analogies, and the Quest for Goldilocks History
On June 23, 2022, the Supreme Court issued its first major Second Amendment decision in a dozen years. In New York State Rifle & Pistol Association v. Bruen, the Court declared New York’s restrictive may-issue licensing law unconstitutional. The 6-3 decision written by Justice Thomas supercharges the Second Amendment and upends a host of settled questions in the fecderal courts of appeals, including questions about what weapons the Second Amendment protects, who can constitutionally be prohibited from possessing firearms, and many others. Although the Court’s primary holding striking down New York’s requirement that a concealed carry applicant show “proper cause” is likely to have immediate impact on the half dozen other states with similar regimes, its holding mandating a history-only test for all future Second Amendment challenges will reverberate much more widely.
Of course, a mountain of scholarship will be devoted to unpacking Bruen’s implications for gun rights and regulation—as well as for constitutional law more broadly. (In fact, the Center will be hosting a symposium at NYU Law School just a few months from now.) What follows is an initial effort to map out some of the major issues raised by the case.
In his opinion for the Court, Justice Thomas first recounted New York’s history of regulating the carrying of handguns, with the modern proper cause licensing law in place since 1913. As implemented currently, the standard is—in the Court’s words—“demanding” in requiring a showing that an applicant have a particularized need to carry publicly that’s distinguishable from the general community. The Court highlighted that many states require permits for concealed carry, but that the majority of states provide that a licensing official “shall issue” a license to whomever satisfies certain mostly-objective criteria.
It underscored—as if to deem it an outlier—that New York is one of only seven states to require a good cause showing. But it’s important to pause here and note (as Justice Breyer picks up in dissent) that this distribution of licensing regimes is thoroughly modern. As late as the 1980s, the predominant licensing scheme was the New York kind that required a showing of good cause. In fact, sixteen states at that time still completely prohibited concealed carry. And, at the time of Heller in 2008, only two states had no permit requirement at all (Vermont and Alaska). Today, 25 states have eliminated the requirement. In other words, gun-rights proponents have been monumentally successful in the legislative arena at the state level. Bruen constitutionalizes those victories to some extent.
Justice Thomas then went on to reject the unanimous methodology of the federal courts of appeals in analyzing Second Amendment questions: the two-part framework under which courts first ask whether the challenged action reaches conduct protected by the Second Amendment (a largely historical inquiry) and then, if so, move on to some form of heightened scrutiny.
Bruen sets up something of a different two-part analysis in its place:
[W]e hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’
As an aside on this paragraph, I’m not sure what the Court is getting at by referencing the text’s “unqualified command.” The case it quotes—Konigsberg v. State Bar of California—rejected a First Amendment challenge to a state bar’s refusal to admit an applicant because he would not answer questions about his membership in communist organizations. The quote comes from a footnote to the sentence in which that Court rejected a view of the First Amendment as absolute in two senses: “not only in the undoubted sense that, where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.” The footnote says the literalist, absolutist position would make no sense given laws against libel, slander, and the like, and quotes Justice Holmes’s assertion that constitutional provisions “are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil” and that their significance should not be determined “simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” It notes that the same must be true of the Second Amendment’s “equally unqualified command.”
I’m puzzled by this reference. Suffice it to say that Justice Thomas does not seem keen on accepting the Konigsberg view of constitutional provisions as “living institutions” or the notion that a constitutional right can protect conduct and still be overcome by sufficient government interests. In fact, it’s worth noting that Konigsberg endorsed the very kind of (in its words) “weighing of the governmental interest involved” that the two-part framework employed and Bruen now says is completely off the table. See Konigsberg, 366 U.S. at 52 (“With respect to this same question of Communist Party membership, we regard the State’s interest in having lawyers who are devoted to the law in its broadest sense, including not only its substantive provisions, but also its procedures for orderly change, as clearly sufficient to outweigh the minimal effect upon free association occasioned by compulsory disclosure in the circumstances here presented.” (Emphasis added.))
But back to the test Bruen announced. It seems to assume a first inquiry into whether the “plain text” covers some conduct. If the answer is yes, it appears to envision a second step to see whether the government has met its burden to introduce sufficient historical evidence to justify the law. (Under the conventional two-step framework, the government bore the burden at step one to show a law burdened unprotected conduct. It is entirely unclear—to me at least—who bears the burden in Bruen’s first step of showing that the purportedly protected conduct is within the “plain text.” Governmental action is typically entitled to a presumption of constitutionality, after all.) Justice Thomas, however, said the existing two-part framework “is one step too many.” Only history is relevant.
The opinion grounded that test in the words and method of Heller. This is just what Justice Kavanaugh did when he first announced this sort of test as a circuit judge; he didn’t justify resort to text, history, and tradition as arising from first principles or based on anything unique to the Second Amendment, but instead as Heller’s mandate. And Heller, said Justice Thomas, doesn’t support means-end scrutiny. For a court to uphold a law against Second Amendment challenge, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”[1]
The majority then tried to support its new standard by drawing comparisons to other areas of constitutional doctrine, stating that “[t]his Second Amendment standard accords with how we protect other constitutional rights.” It described how (part of) First Amendment analysis looks to history for categorical exceptions. (The opinion omitted entirely the fact that the First Amendment quite obviously employs means-end scrutiny in a whole host of contexts.) Although history can be hard, the Court acknowledged, “reliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable” than having judges perform means-end scrutiny. One wonders if the justices in the majority think what they were doing was not “legitimate” when five of them applied means-end scrutiny to—for example—hold certain California COVID-19 measures unconstitutional under the First Amendment.
What’s more, the Court dismissed concerns from the dissent about the ability of judges to perform the history that the decision now requires.
The job of judges is not to resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or controversies. That “legal inquiry is a refined subset” of a broader “historical inquiry,” and it relies on “various evidentiary principles and default rules” to resolve uncertainties. W. Baude & S. Sachs, Originalism and the Law of the Past, 37 L. & Hist. Rev. 809, 810–811 (2019). For example, “[i]n our adversarial system of adjudication, we follow the principle of party presentation.” United States v. Sineneng-Smith, 590 U. S. ___, ___ (2020) (slip op., at 3). Courts are thus entitled to decide a case based on the historical record compiled by the parties.
In other words, it seems to me that courts are now “entitled” to strike down democratically enacted legislation if whatever responsible government officials defending a given law neglect to insert relevant historical evidence into the record, even if that history would have supported the law. Plus, it appears to leave open the possibility that the Second Amendment right will be constantly changing as new historical evidence gets unearthed—which we’ve seen happen even in the years since Heller was decided, with developments in corpus linguistics that cast doubt on historical assertions in that case. Or just the opposite, and equally problematic situation, could be true: constitutional law could calcify a version of history, making the Supreme Court’s pronouncements about history binding for all time.
Justice Thomas suggested that historical analysis would sometimes be easy, listing three suchcircumstances: (1) “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment,” (2) “[l]ikewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional,” and (3) “if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.”
Indeed, said Thomas, this very case itself was pretty easy. “[T]he historical analogies here and in Heller are relatively simple to draw.” Yet, he said, “other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.” (Emphasis added.) That more nuanced approach—apparently reserved only for hard cases—requires judges to engage in analogical reasoning, finding a metric to assess relevant similarities. “While we do not now provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment,” the Court said, “we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense.”
So courts ought to look to the burden the challenged law imposes, and check to see if a similar burden was imposed in the past; and then courts ought to look to the reasons the modern law was adopted and see if a historically law was similarly motivated. That means, as the Court said, that “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are ‘central’ considerations when engaging in an analogical inquiry.” The opinion hastened to add that courts may not engage in backdoor means-end scrutiny when doing this analogical reasoning (though assessing the burden and justification of a law were commonplace aspects of the two-part framework). The test, said the Court, shouldn’t be too narrow or too wide. The analogical reasoning approach is “neither a regulatory straightjacket nor a regulatory blank check.” As to the fear of a straightjacket, the Court sought to assure:
[A]nalogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.
That reassurance is likely to be cold comfort to supporters of stricter gun regulation given how the majority applied its methodology to New York’s regime. (More on that below). To give an example of the leeway the approach envisions, the opinion invoked the sensitive places doctrine. Its reasoning is less than clear to me. After citing Heller’s description of schools and government buildings as sensitive locations where guns can be prohibited, the Court said:
Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.
(Citations omitted). This passage is curious. Start with the suggestion that “no disputes” about the constitutionality of a given law means the Court can “assume it settled” that the law is consistent with the Second Amendment. Why, one might ask, wasn’t the fact that New York’s concealed carry licensing went unchallenged for over century mean it was “settled” that such a regulation was constitutional? It’s strange to see the opinion so cavalier with the lack of widespread place-based restrictions.
I suspect at least some members of the majority were intent on retaining the sensitive places doctrine, but it seems badly undertheorized here. Consider the second half of the passage—how do courts assess whether gun prohibitions in other places are okay? No answer but the admonition to “use analogies.” On the majority’s own description of how to use analogies (the how and why questions), almost every sensitive places question is radically indeterminate: any place-based prohibition, modern or ancient, burdens the right to armed self-defense in nearly identical ways and all, or nearly all, are justified on the same grounds (i.e., reducing opportunities for armed violence in this space). A wave of litigation is going to confront the courts with questions about what, for example, makes a restriction on guns in schools and government buildings different than in museums or on public transit. One marker the Court did lay down is that sensitive places cannot be “all places of public congregation that are not isolated from law enforcement.” But between prohibitions in polling places and courthouses—which are permissible—and citywide prohibitions—which are not—lies a vast (literal) terrain of potential gun regulations.
After spending pages laying out what seems a squishy standard, the Court then applied it to New York’s law. At what I’m calling Bruen step one, the Court asked first “whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense.” It is worth noting—though the Court doesn’t spend much time on the question—that the “plain text” step is arguably quicker in Bruen than it might be in other contexts. Many argue, after all, that the plain text of “bear” means public carry, which, under the Bruen approach, shifts the burden to the government to provide historical evidence. It is more difficult to argue, for example, that the plain text of “Arms” covers high-capacity magazines, or that the plain text of “the People” does not cover undocumented immigrants.
In any event, the Court spent little time concluding that the “definition of ‘bear’ naturally encompasses public carry,” noting that “[m]any Americans hazard greater danger outside the home than in it.” Because the Second Amendment’s core right is the ability to keep and bear arms for self-defense, and individuals often find themselves in confrontations outside the home where they may need to defend themselves, the Court held it would be inappropriate and nonsensical to confine the right to “bear” arms to the home. That holding officially extends Heller and McDonald outside the home to protect public carriage of firearms.
After concluding that the plain text covers the conduct here, the Court then turned to (again, my words) Bruen step two: to justify that it can condition carry permits on a showing of need, “the burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.” The Court then catalogued the types of evidence the state asserted on its behalf, including traditions from “(1) medieval to early modern England; (2) the American Colonies and the early Republic; (3) antebellum America; (4) Reconstruction; and (5) the late-19th and early-20th centuries.” At this point, the Court noted that not all history is equal. Legal regulations that are too old are not probative; nor are those that are too recent. On the latter score, the Court drew a hard line in the sand: the twentieth century is too late. (This line needed to be drawn to reach the Court’s outcome since Massachusetts had a similar regime starting in 1906 and New York’s own law stretched to 1913. But it also means that when firearm regulation picked up in response to firearm violence, tradition becomes irrelevant.) The Court makes government search for a goldilocks history that will satisfy judges that a given regulation is sufficiently grounded in history.
As Justice Barrett noted in her concurrence, one historical matter the Court left undecided is whether lower courts should look to laws around 1791 (when the Second Amendment was ratified) or 1868 (when the Fourteenth Amendment was ratified) to assess the original public meaning of the right. It said that that didn’t matter for this case because the history at both periods was similar enough on the question of public carry. And that evidence did not, said the Court, support limiting the right to carry to those who could show special need. The Court did, however, say in a footnote that it was not calling all licensing into question (though, query how this is consistent with ignoring 20th century developments) and that shall-issue licensing laws were probably okay save for any situations where, for example, “lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”
The Court then marched through the historical record presented to support New York’s law, dismissing and distinguishing what are at times quite strict restrictions. English history, for example, is “ambiguous at best” and the Court “see[s] little reason to think that the Framers would have thought it applicable in the New World. It is not sufficiently probative to defend New York’s proper-cause requirement.” Of course, the Court acknowledged that “[w]hen handguns were introduced in England during the Tudor and early Stuart eras, they did prompt royal efforts at suppression.” But the Court said that this tradition faded by the time of the founding.
Then, as to evidence of early colonial practice, the Court cited three colonial restrictions the state invoked, but cautioned that “we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation.” It then went on to distinguish those regulations. Then, curiously, it said: “Regardless, even if respondents’ reading of these colonial statutes were correct, it would still do little to support restrictions on the public carry of handguns today.” Apparently even on-point historical traditions have a shelf life that modern circumstances can render irrelevant. The rationale is worth quoting in full because it seems to me to turn historical inquiry on its head:
Whatever the likelihood that handguns were considered “dangerous and unusual” during the colonial period, they are indisputably in “common use” for self-defense today. They are, in fact, “the quintessential self-defense weapon.” Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.
(Citation omitted). So contemporary usage nullifies past practices. It’s really unclear how this is consistent with the analogical methodology the opinion earlier recited: the how and why seem to line up between these old regulations and New York’s regime—they comparably burden public carry and were comparably justified. Then, too, the Court rejected another similar law, writing that “we cannot put meaningful weight on this solitary statute.” (There’s a theme of treating laws in isolation and then remarking that the Court cannot rely on isolated laws to justify New York’s.)
Turning to post-enactment of the Second Amendment laws, the Court acknowledged that “[o]nly after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate.” But none of those laws—common law offenses, carry bans, or surety statutes—supported New York. The Court read the laws and state court decisions upholding bans on concealed carry to mean that states could ban open or concealed but had to permit one. (In fact, the reasoning of several of those cases suggests that open carry might be constitutionally protected but that concealed carry was not. Heller itself explicitly recognized the latter point in a line that, interestingly, Justice Kavanaugh’s concurring opinion—which otherwise reproduces Heller’s language on exceptions—omits.) The Court also rejected a full carry ban for handguns in the New Mexico Territory from 1860, writing that “[t]his extreme restriction is an outlier statute enacted by a territorial government nearly 70 years after the ratification of the Bill of Rights, and its constitutionality was never tested in court.”
Later, in rejecting surety statutes as insufficiently analogous, the Court acknowledged that “[i]t is true that two of the antebellum surety laws were unusually broad in that they did not expressly require a citizen complaint to trigger the posting of a surety.” But, said the Court, the burden was slight: “we have little reason to think that the hypothetical possibility of posting a bond would have prevented anyone from carrying a firearm for self-defense in the 19th century.” The Court also dismissed criticism from the dissent that “the absence of recorded cases involving surety laws may simply ‘show that these laws were normally followed.’” Sure, the Court said, that might be the case, but “the burden rests with the government to establish the relevant tradition of regulation,” and along with the other ways the Court saw to distinguish surety laws, “we consider the barren record of enforcement to be simply one additional reason to discount their relevance.” Note the contrast between this description of absence-of-records and how the Court assured that sensitive place laws were okay precisely because there was no record of dispute about them. I think that ought to give some hesitation about accepting the Court’s reassurances at face value.
The Court summarized its view of antebellum regulation as supporting the government’s authority over the manner of carrying—noting, for example, that “[u]nder the common law, individuals could not carry deadly weapons in a manner likely to terrorize others” and that surety laws “provide[d] financial incentives for responsible arms carrying.” But that did not extend to restricting the right to carry to those who could show good cause.
When the Court turned to evidence surrounding the Fourteenth Amendment’s ratification in 1868, it again underscored the limited nature of its historical analysis: “we are not obliged to sift the historical materials for evidence to sustain New York’s statute,” because the state bears the burden. But it nonetheless surveyed some evidence it found. It started with Dred Scott—not to condemn the decision, but to use it to bolster the case for a broad right to publicly carry. Justtice Thomas writes that Justice Taney even subscribed to his view because Taney’s “parade of horribles” of recognizing the citizenship of Black Americans included allowing them “to keep and carry arms wherever they went.” (Emphasis by Thomas.) It’s very strange to see Dred Scott—the paradigmatic anticanonical case—cited approvingly. One might wonder why, if its reasoning about the citizenship of Black Americans is so resoundingly rejected today, we should still think it got this other legal issue correct. But even besides that, the throwaway line in Dred Scott is quite clearly incorrect, since even Justice Thomas acknowledges that on any understanding of the public carry right, it did not grant a right to carry “wherever” someone wants—private property can obviously be off limits, as can the sensitive places that the opinion assured are grounded in historical precedent.
The Court then noted the efforts of many states to restrict arms-carrying by Black Americans, highlighting that the 39th Congress meant to counteract these restrictions. It dismissed as irrelevant, however, military orders during Reconstruction that forbid the carrying of deadly weapons.
The Court next homed in on a Texas law passed immediately after the Fourteenth Amendment’s ratification that the state and federal government relied heavily on in their briefing. That law forbid carrying handguns without “reasonable grounds for fearing an unlawful attack.” It was upheld twice by the Texas Supreme Court in the span of a few years. And that law, the Court “acknowledge[d]” did “support New York’s proper-cause requirement.” Yet that support was not sufficient because, the Court said, the law and the court decisions were “outliers.” “[W]e will not,” declared the Court, “give disproportionate weight to a single state statute and a pair of state-court decisions.”
Finally, the Court turned to territorial regulation from the late 1800s. That evidence is limited in value, the Court said, because of its distance from the Second Amendment’s ratification. (The Court denied that 20th century laws were relevant at all and refused to look at it, all without explaining how Heller could have blessed felon-in-possession laws that were only enacted in the 20th century.) On the territorial laws, it noted that two territories barred handgun carry in towns, cities, and villages, two others barred all firearm carry in those places, and one barred handgun carry everywhere. Again, the Court found this regulatory tradition distinguishable. Of territory-wide laws in five dispersed areas, the Court said, “the bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry.” The laws there were “exceptional” and that is apparently bolstered by the fact that the territories were sparsely populated in 1890.
Once again, the Court said, “we will not stake our interpretation on a handful of temporary territorial laws that were enacted nearly a century after the Second Amendment’s adoption, governed less than 1% of the American population, and also contradict the overwhelming weight of other, more contemporaneous historical evidence.” (Quotation marks and alterations omitted). Continuing on, the Court said the laws were rarely challenged so it could not judge “the basis of their perceived legality.” Note, again, what it means to find no evidence of challenges here versus in the context of sensitive places. And, said the Courts, courts that did uphold broader bans sometimes did so on grounds that Heller dismissed (i.e., militia oriented grounds). Thus, “[a]bsent any evidence explaining why these unprecedented prohibitions on all public carry were understood to comport with the Second Amendment, we fail to see how they” can shed light on the meaning of that provision. Finally, the Court also distinguished the strict territorial laws because they were temporary.
In summary, the Court declared that its “long journey through the Anglo-American history of public carry” failed to support the state’s position. A few “outliers” here and a few “outliers” there were not enough to support New York. Justice Thomas concluded the opinion with a nod to the “second class” theme that he’s been raising repeatedly since Heller. The Court won’t, he said, apply a whole different set of rules to the Second Amendment by allowing officials to have discretion over its exercise. But, of course, the Court did in fact impose a whole different set of rules in requiring states to come up with historical analogues to justify regulation and eschewing the type of means-end scrutiny the justices routinely applies in First Amendment cases and other areas of constitutional law.
In another post, we’ll dive more deeply into the concurrences and dissent. For now, I want to highlight a few aspects of the opinion that stood out to me. One is that this opinion reads like a full-on Justice Thomas opinion that supercharges the Second Amendment right in the way he has been calling for in dissents from denials of cert for years. I’m a little surprised to see he got all five other Republican-appointed justices to sign on in full. That wasn’t as surprising for the result of invalidating the New York law, but was surprising to me for the approach of rejecting the two-part framework and fully adopting the history-only method.
Another thing that stood out is that the majority does not repeat the assurances from both Heller and McDonald that there are a set of laws that are presumptively constitutional, like laws prohibiting certain people from possessing guns or regulations on the commercial sale of arms. (A concurrence does, but the majority opinion—made a majority only by the two justices on that concurrence—doesn’t). That’s a glaring omission to me, and just reaffirms further that Justice Kennedy’s absence made all the difference here.
I was also struck by just how many times the opinion calls something that looks as strict or stricter than New York’s law an “outlier” or “exceptional” law. One might think that outlier status is the type of thing a legal tradition loses when there’s that many to distinguish away.
Finally, in this opinion, there’s nothing about government leeway to regulate guns differently in differently-situated geographic locations. No recognition that the needs of urban and rural places might be different, and a rejection of laws specifically allowing for greater regulation in populated areas. That is a bit surprising given that Justice Thomas at oral argument appeared to lean into the urban-rural divide, asking if New York could regulate differently in New York City and upstate.
I’ll end this very blog post by just registering some concern. The opinion’s requirement that courts only look to history in deciding Second Amendment cases is likely to have a monumental impact in lower courts and on various state laws. And the way the Court in this opinion assessed history, distinguishing away all potentially relevant analogues, I think should rightly worry those who fear that a historical test just masks value judgements and judicial discretion that is at least—for whatever else can be said of it—more transparent in the two-part framework. Bruen calls for historical method, but truncates it and chops it apart. On Bruen’s account, Heller can falsify history—making traditions, laws, and cases irrelevant to the analysis—but cannot itself be falsified. That’s an odd way to employ history.
[1] In holding that Heller already rejected means-end scrutiny, the Court dismissed Heller’s own insistence that the D.C. law would fail under “any of the standards of scrutiny” the Court applies to constitutional rights, its express rationale for declining to adopt Justice Breyer’s proposed proportionality analysis (because it did not match any of the levels of scrutiny the Court has applied to other rights), and its emphasis that it was not deciding a standard of review because there would be plenty more cases to resolve that question.