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Bruen’s Concurrences: The Questionable Durability of the Bruen Majority, and Ruminations on Originalism and the Limits of Historical Inquiry

  • Date:
  • July 6th, 2022

By: Andrew Willinger

Jake previously summarized and reviewed Justice Thomas’ opinion for the Court in New York State Rifle & Pistol Association v. Bruen.  This post unpacks the three concurrences, which potentially shed light on the scope of the Court’s holding and the “historical tradition” of regulation that will be relevant in future Second Amendment cases.

Justice Alito concurred in the Court’s opinion, and at the outset endorsed Justice Thomas’ analysis and the decision to strike down New York’s law under the historical tradition test.  Justice Alito then reiterated the limits (in his view) of the Court’s opinion:  it did not opine on “who may lawfully possess a firearm or the requirements that must be met to buy a gun”; it did not “decide anything about the kinds of weapons that people may possess”; and, perhaps most importantly, it did not say anything about Heller’s endorsement of certain “restrictions that may be imposed on the possession or carrying of guns.”

Having cabined the Court’s opinion as a narrow holding that a state may not prevent law-abiding individuals from carrying a gun outside the home for self-defense, Justice Alito took issue with the dissent’s citation of statistics and studies regarding gun violence in America.  In Justice Alito’s view, these statistics were irrelevant to the question before the Court, especially when they dealt only with types of gun violence more likely to occur inside the home—for example, the use of guns in suicides and domestic disputes.  Justice Alito also criticized the dissent for invoking recent mass shootings, arguing that potential mass shooters are among the least likely to be deterred by strict licensing requirements and observing that one such recent shooting occurred in New York (and thus, he said, obviously was not prevented by New York’s permit system). Then, Justice Alito moved on to emphasize the beneficial role that guns can play in enabling individuals to defend themselves and highlighted anecdotes from the amicus briefs of individuals warding off would-be attackers through the defensive use of firearms.

Finally, Justice Alito sought to illustrate what he considers the pitfalls of means-ends scrutiny:  namely, that “this mode of analysis places no firm limits on the ability of judges to sustain any law restricting the possession or use of a gun.”  First, he alluded to a New York City rule that limited the ability of permitholders allowed to keep guns in the home for self-defense to take those guns to a range for target practice—a restriction which the Second Circuit initially upheld, but the state later repealed.  This was New York State Rifle & Pistol Assn., Inc. v. City of New York, 590 U. S. _ (2020), a case decided two terms ago that we covered extensively and in which the Court ultimately held that New York City’s decision to repeal the law mooted the claims.  Second, he suggested that Justice Breyer’s dissent in Heller—which would have upheld Washington D.C.’s near-total handgun ban under means-end scrutiny—showed that such an approach leaves “[s]tates and local governments . . . essentially [] free to ban the possession of all handguns.”  In Justice Alito’s view, the fact that any court or judge might have considered these laws appropriate under a means-ends test proves that such a test fails to properly limit judicial discretion or protect Second Amendment rights.

Justice Kavanaugh wrote a separate concurring opinion, joined by Chief Justice Roberts.  With greater force than Justice Alito, Justice Kavanaugh stressed that the 43 states with “shall issue” permitting regimes are free to continue to grant permits in this way.  He also opined that the 7 “may issue” jurisdictions (6 states plus D.C.) are merely required to modify their licensing frameworks to “employ objective licensing requirements like those used by the 43 shall-issue States.”  Justice Kavanaugh also quoted the McDonald plurality opinion and its examples of permissible gun regulation—reproducing the list from Heller itself—and stated that nothing in Bruen disturbed the presumptive constitutionality of such restrictions.

Justice Barrett authored a short concurrence joining the Court’s opinion but also observing that it “does not resolve” two questions regarding how to properly interpret the historical record.  First, “the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution” was left unclear.  And, second, the Court’s opinion noted—but did not resolve—the question of whether the scope of permissible regulation of an individual right should be determined as of 1791 (when the Bill of Rights was ratified) or as of 1868 (when the 14th Amendment, which incorporates the individual rights in the Bill of Rights against the states through the due process clause, was ratified).  Justice Barrett suggested (as did the Court’s opinion) that 1791 is the correct date and, therefore, Reconstruction-era regulations may be of limited or no value in assessing the historical tradition of regulating individual rights within the Bill of Rights.  Justice Barrett agreed with the Court that it was not necessary to decide either question to strike down the New York law at issue.

While it’s always difficult to divine the inner workings of the Court and know why certain justices choose to write separately rather than joining in the Court’s opinion, it is noteworthy that two out of the three concurrences devote space to stressing the same central points about the limitations of Bruen.  First, that the holding shouldn’t be perceived as a threat to shall-issue permitting systems in theory (although not necessarily in practice, if the requirements imposed on applicants are applied in an arbitrary or excessively burdensome manner).  And, second, that the holding does nothing to change the Court’s conclusion in both Heller and McDonald that “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” (plus laws regulating dangerous and unusual weapons) are presumptively constitutional.

The fact that Chief Justice Roberts and Justices Alito and Kavanaugh thought it important to emphasize these points separately leaves one wondering to what extent the Court’s opinion actually agrees that such laws are still presumptively lawful.  Taking the Court’s brief discussion of the sensitive-places doctrine as an example, Justice Thomas doesn’t simply invoke Heller saying these laws are fine—instead, he suggests that these laws are only justified where they are analogous to historical “sensitive places” where guns were prohibited.  Under that approach, it seems that certain of the Heller and McDonald presumptively-lawful regulations may be on thin ice:  these laws aren’t automatically OK, but rather have to independently meet the historical analogy test. 

The fact that three Justices who signed onto the Court’s opinion in Bruen wrote separately to stress their agreement with Heller and McDonald’s carve-out of certain specified gun regulations may indicate cracks within the six-justice Bruen majority going forward.  On one hand, the concurrences could be empty rhetoric and (when the rubber hits the road) these Justices may ultimately endorse looking to historical tradition across the board.  On the other hand, it’s possible to read these concurrences as indicating a consensus on the Court behind only a narrow version of Bruen:  historical tradition is the appropriate way to evaluate restrictions such as New York’s permitting regime which prohibit public carry by most law-abiding citizens (or the right to possess a handgun in the home, as in Heller and McDonald).  Some other gun laws might still be presumptively valid because they don’t burden the Second Amendment right of law-abiding citizens in the same way and thus do not even make it to the historical-analogue stage of the Bruen analysis—for example, laws that prohibit only certain categories of people from possessing guns, prohibit guns only in certain places, regulate the sale but not the possession of guns, or regulate only certain types of uniquely dangerous guns.  At the very least, some combination of Chief Justice Roberts and Justices Alito and Kavanaugh may embrace this narrower interpretation of the Court’s holding in Bruen.

Justice Barrett’s concurrence is slightly odd, in that she wrote merely to note questions about the proper mode of historical analysis the Court’s opinion left unanswered.  According to Justice Barrett, these questions were not necessary to resolve Bruen but will be relevant in future cases—though she also declined to answer them.  Whether you agree with the assertion that they were immaterial to Bruen or not, Justice Barrett highlights important unresolved issues with the Bruen test and only underscores how little guidance the Court’s opinion supplies to lower courts now tasked with reasoning by analogy to historical regulations.  Her first point about postratification history is fascinating because it hones in on one way in which Bruen’s focus on history may actually be in some tension with originalism.  Barrett voices concern about “[h]ow long after ratification” regulatory practice will be relevant.  In other words, how long after an amendment was ratified can state practice inform us about the intended scope of the right and what type of regulations were originally viewed as consistent with that right? 

The Court in Bruen considers subsequent state regulatory practice through the end of the 19th century.  If the relevant date of ratification is 1791 (more on that below), then the Court’s historical survey reaches over 100 years into the future to illuminate the original understanding of what regulations were permissible.  And Justice Barrett seems concerned this may be a bridge too far.  On this point, it’s interesting to note that the late Justice Scalia (considered a pioneer of originalist constitutional and statutory interpretation) frequently decried the use of subsequent legislative history:  history concerning the meaning of a law written after the law was passed.  See, e.g., Sullivan v. Finkelstein, 496 U.S. 617, 631 (1990) (Scalia, J., concurring in the judgment) (“‘Subsequent legislative history’—which presumably means the post-enactment history of a statute’s consideration and enactment—is a contradiction in terms.”).  The Court’s use of postratification regulatory practice in Bruen is slightly different, but there are arguably similar concerns about why regulatory practice 100 years after the Second Amendment was ratified should shed any light on the original understanding of what the Amendment was intended to protect and what regulations were consistent with it.

To Justice Barrett’s second point about whether to use 1791 or 1868 as the date of “ratification” for purposes of the historical tradition test, both Justice Barrett and the Court strongly suggested—but the Court did not actually decide—that the correct date is 1791, when the Bill of Rights was ratified.  If lower courts read Bruen in this way, it will have important consequences.  It is no accident that several of the closest potential analogues to New York’s proper cause requirement (including the postbellum Texas statute that even the Court conceded was closely analogous to New York’s permit law) were passed in Western states and territories during the post-Civil War period.  This was a time when state governments in the West grappled with lawlessness and widespread gun possession in rapidly-developing cities and towns on the frontier.  There are similar policy concerns at play in modern urban areas, but—if courts coalesce around an approach that focuses on 1791, even for challenges to state and local laws—regulations from this period of history may ultimately play little to no role in future Second Amendment cases.