[This is a guest post based on a paper that was presented at the Center’s 2022 Firearms Law Works-In-Progress Workshop.]
At this year’s Duke Center for Firearms Law’s Works-in-Progress Workshop, we presented our paper Small Arms Races. There, we argue that certain confluences of permissive firearm laws can cause even rational, well-meaning actors to escalate armed encounters, with deadly results. Our solutions are varied, but all boil down to making firearms use—or threats of use—more difficult or costly. These interventions, we contend, are constitutional because Heller endorses some kind of balancing inquiry as a test of constitutionality, and our solutions are appropriately tailored to advance the objective of preventing gun violence.
In The Personal Costs of Small Armed Encounters, their thoughtful response to our essay, Professor George A. Mocsary and K. Alexander Adams disagree. Mocsary and Adams contend that gun rights aren’t subject to balancing—instead they are rights as trumps. The Supreme Court’s decision in New York State Rifle & Pistol Association Inc. v. Bruen, released during the Workshop, appeared to agree with them. Invalidating New York’s concealed-carry licensing regime, Justice Thomas’s majority opinion explicitly disavowed “means-end scrutiny” for determining the constitutionality of firearms regulations. Instead, the Court held, Second Amendment analysis must resort exclusively to “constitutional text” and “the Nation’s historical tradition of firearms regulation.”
This approach certainly sounds like it excludes balancing of any kind. But is that right? Moreover, how would one evaluate a novel gun regulation using only text and tradition? At least according to the Court, the answer is: use analogies to history. This is only half an answer, since—as every first-year law student learns—any project of analogizing raises two further questions: To what? And how?
On the question of “what,” there are three possible kinds of evidence from our “historical tradition of firearms regulation” that could inform the original meaning of the Second Amendment’s “text.” First, there might be authoritative founding-era analyses of the constitutionality of particular gun laws. The classic example would be Supreme Court cases applying Second Amendment scrutiny to such laws. Such cases could tell us not only which laws were (un)constitutional abridgments of the individual right to self-defense, but why.
Unfortunately, no such cases exist. Heller was the first Supreme Court case holding that the Second Amendment protected an individual, as opposed to militia-related, right to gun ownership. It was decided in 2008—hundreds of years too late for the understanding of the right displayed there to constitute firsthand evidence of original public meaning. The Bruen opinion cites several founding-era cases—but from state courts, applying (with one rogue exception) state constitutional law, focusing on the militia-related used of firearms, in an era well before the Second Amendment was generally understood to apply to the states. The set of federal constitutional reasons to be drawn from these state cases and applied to modern regulations putatively abridging a federal right to self-defense is quite small. Other documents containing federal constitutional reasoning about specific, self-defense-impinging gun laws—e.g., legislative debates—likewise appear sparse in the founding-era historical record.
That leaves just two kinds of possible historical analogues. The second category of analogue is gun regulations actually enacted at or around the founding. The Bruen opinion spilled much ink over these—asking which laws, from which period, counted, what, exactly, they forbade, and how they were (or were not) enforced.
The third and final kind of historical evidence—at least according to Bruen—is all of the gun regulations the Founders didn’t enact. Justice Thomas wrote that “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.”
What could these two varieties of historical example tell us about the constitutionality of a novel contemporary gun law? That depends on the answer to our second question: How should we analogize to them? Bruen’s analysis suggests a preference for fact-specific, low-generality analogies. It looks to the nitty gritty of historical gun regulations: Which particular weapons would have “terrified” the people at the time? What barrel lengths qualified a gun as a forbidden “pocket pistol”?
We contend that this highly fact-specific approach to analogizing simply cannot work. So constrained, the historical evidence will be wildly underdeterminative of almost any novel modern law’s constitutionality.
Consider first the evidence from actually enacted historical gun regulations. The fact-specific inferences to be drawn from such evidence are asymmetric. The fact that the Founders enacted a given law supports, at best, an inference that a similar law is constitutional. Moreover, the more the question of similarity depends on the low-level details of regulatory design, the fewer modern laws will benefit from the inference.
Note however, that the inverse does not follow—at least not without additional premises. The fact that a given law is not highly factually similar to a historical one does not mean it is unconstitutional. Two laws that control guns in highly different factual ways can both be constitutional. Bruen itself gives two such examples: laws prohibiting the carrying of certain kinds of (unusual) guns anywhere and laws prohibiting the carrying of all kinds of guns in certain (sensitive) places.
This is where the Court’s third kind of historical evidence—gun laws that the Founders did not enact—is supposed to come in. According to the Breun majority, we should draw the negative constitutional inference from fact-specific disanalogies. The idea is that, if the modern law would have helped solve the historical problem, we should infer that Founding-era legislatures declined to enact it for constitutional reasons.
This is nonsense—or very near it. There are thousands of reasons other than unconstitutionality that Founding-era lawmakers might have declined to use any particular fact bound regulatory approach. Some such decisions are arbitrary choices between redundant or mutually exclusive alternatives. You can require people to drive on the right side of the road or the left—but not both. Here is another possibility: The Founders simply didn’t think of the modern approach. One of us has argued elsewhere for Pigouvian taxes as an effective, constitutional mode of gun regulation. But Arthur Pigou did not begin lecturing on economics until 1901—far too late for the Founders to benefit from his wisdom. Another possibility: The magnitude of historical gun ownership—and thus gun problems—was different at the Founding. Thus, the Founders chose the regulations that best balanced benefits and costs at the time. The list goes on and on.
Where does this leave us? Fact-specific analogies to actually-enacted laws point only in one direction—toward constitutionality—and only for a very narrow range of modern laws. And, as just argued, the absence of a historical law with high factual similarity to a modern one is of so little epistemic value as to be useless. The result is that, for any sufficiently novel gun law—i.e., most modern ones—Bruen’s low-generality approach tells us nothing about constitutionality.
What to do, then? We contend that the best solution is to analogize to historical gun regulations at a higher level of generality. Rather than narrowing the historical inquiry to the precise acts, locations, or firearms the founding-era rules regulated, courts could take a wider view. They could try to understand the historical lawmakers’ goals as they regulated: What problem were they trying to solve? What was the problem’s magnitude in the relevant jurisdiction? How well did the chosen rule, in the context of that jurisdiction, actually control the problem? We could also try to understand the “why” behind the presumptive founding-era judgment that the given regulation was constitutional. Why would the flat prohibition of “dangerous” or “unusual” guns not violate the right to bear arms? Why might the Founders have thought that forbidding all guns in certain places raised no constitutional problem?
Asking these questions about the historical record, as we argued in Small Arms Races, leads us right back to means-ends balancing. The Founders and their historical neighbors were savvy policymakers. They understood that a variety of rules would work well, in their time, for reducing accidental and intentional shootings. They understood that, of the effective ones, some rules would have large constitutional downsides—needlessly abrogating the benefits of gun ownership. And they selected laws that were more good than bad. Hence their laws forbidding especially dangerous guns, ownership by especially dangerous people, or carrying in especially explosive places.
Our approach, we contend, is just as faithful to text and tradition as Bruen’s. But it has the added advantage of rendering modern constitutional decision making possible. Higher-level thinking about historical laws—and especially constellations of laws—can reveal principles, not merely examples. And principles are a much more versatile yardstick than fact-bound examples by which to measure the constitutionality of novel laws. One can ask, for example, whether a Pigouvian gun tax balances regulatory and constitutional goods as well as the constellation of laws the Founders actually endorsed.
Here is another problem with the alternative: A reading of Bruen that invalidates balancing would result in apparent absurdities. Consider the example Professor Joseph Fishkin posed on Twitter: “Can U.S. governments block civilians from obtaining/selling/using depleted uranium bullets?” From our understanding of the history, there was no significant regulation of ammunition near the Founding or Second Founding. Does that mean all modern regulations—even of dangerous, armor-piercing rounds—are unconstitutional? If yes, then absurdity results.
Perhaps the answer is no, because—as Fishkin notes—Heller allows for the regulation of “dangerous and unusual weapons.” But, as Fishkin observes, all firearms technology is dangerous, all new technology is unusual when introduced, and much new technology is more deadly than the old. Thus, freestanding assessments of dangerousness or commonness can do little constitutional work. Instead, courts could consider comparative dangerousness or commonality: Does uranium bullets’ substantial extra dangerousness add much in the way of constitutionally-protected self-defense? Almost certainly not. Then they can be banned.
How do our observations above fit with the case law we actually have? It is hard to say. Certainly, Bruen’s rejection of means-ends reasoning appears at first to also reject balancing. But Bruen also directs courts to consider “how and why [historical] regulations burden[ed] a law-abiding citizen’s right to armed self-defense” and determine “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” Thus, perhaps the right approach is a middle path—one that rejects freewheeling interest-balancing but endorses another kind: historically-oriented balancing, balancing with a weight on the scale, or another yet-to-be defined variation. If not, the prospects for principled Second Amendment decision making look grim.