Justice Breyer’s Dissent in Bruen:  The Generality Problem and the Pitfalls of Searching for Historical Means and Ends

  • Date:
  • July 08, 2022

We previously reviewed and commented on Justice Thomas’ opinion for the Court and the three concurrences in New York State Rifle & Pistol Association v. Bruen.  This post is a deeper dive into the dissent, which stridently criticized the Court’s historical-tradition methodology as both dismissive of modern legislative objectives and unworkable in practice.  

The lengthy dissent was authored by Justice Breyer, joined by Justices Sotomayor and Kagan.  The dissent began with the observation that U.S. civilians possess a disproportionately high number of guns compared to civilians in other countries.  Breyer then cited statistical evidence of “[t]he dangers posed by firearms” and listed recent mass shootings.  He also observed that states need flexibility to tailor regulations to their specific demographic environments, which may dictate different regulatory choices for urban and rural areas.  Breyer stated that these “considerations illustrate that the question of firearm regulation presents a complex problem—one that should be solved by legislators rather than courts.”  Breyer asserted that the Court’s opinion will leave states without the ability to account for these issues in formulating gun policy.

The dissent then recounted the facts of the case, stressing that New York’s permitting system provided copious guidance on how licensing officials should apply the “proper cause” standard.  Breyer lamented that there was “no evidentiary record to demonstrate how the standard has actually been applied in practice.”  He argued that, in drawing a neat line between “may issue” and “shall issue” permitting schemes, “the Court ignore[d] the degree of variation within and across those categories,” failed to evaluate how permitting regimes actually function in practice, and did not consider that the seven “outlier” may-issue states have unique demographic challenges bearing on gun violence prevention strategies.  Breyer also observed that shall-issue licensing is a relatively new development and that, before the last several decades, most states employed may-issue regimes.  Finally, he cited empirical studies showing that shall-issue frameworks lead to more gun violence.

Breyer’s dissent then levied three major methodological criticisms at the Court’s historical-tradition test.  First, Breyer argued that the test is not actually faithful to Heller, because Heller expressly contemplated some form of means-ends scrutiny and only rejected a more freestanding “interest-balancing” approach.  Second, Breyer observed that the historical-tradition test is not consistent with how courts evaluate other constitutional rights—while they may consult history to determine the scope of the right, they then commonly move on to apply means-ends scrutiny to determine whether the law at issue should be upheld or stuck down.  Third, Breyer argued that the history-based test will prove “deeply impractical.”  Specifically, he questioned whether lower courts have the resources to conduct the historical analysis necessary to identify analogues and outliers, whether the test might “permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history,” and whether history can ever provide concrete answers to difficult questions that were not anticipated at the time of the Founding (Breyer cited continued scholarly debate over the historical analysis in Heller as further evidence that the Court’s test will prove immensely difficult in practice.)  Compounding these issues, in Breyer’s view, is the lack of guidance that the Court's opinion provided to lower courts tasked with conducting analogical reasoning to historical regulations.

In a final section, the dissent conducted its own review of the relevant historical regulations.  Relying on many of the same statutes considered and dismissed by the Court’s opinion—including the 1328 Statute of Northampton, colonial and founding-era successors to that statute, early American concealed-carry prohibitions, and post-Civil War public carry bans in Western states—Justice Breyer found a “centuries-old tradition of comparable firearms regulations” analogous to New York's “proper cause” requirement.  Justice Breyer questioned how this historical tradition could be insufficient to support the New York law, and what might possibly be sufficient under the Court’s test if such a long tradition of similar regulations fell short.  The dissent ultimately argued that the Court’s test not only improperly precludes state legislatures from making empirical judgments about the best way to address gun violence, but also overlooks historical support sufficient to uphold the New York law.

The dissent considered many of the same regulations as the Court’s opinion but drew the opposite conclusion:  that there was sufficient historical support for the New York law.  This simply underscores that the Bruen test depends entirely upon the level of generality at which a judge conducts the historical-analogue inquiry.  If one uses a powerful magnifying glass to parse the historical record, you are almost certain to find a dearth of regulatory analogues—however, at a higher level of generality, “representative” historical regulations will pop up left and right. 

As we think about the future of public-carry permitting challenges specifically, Justice Breyer’s point about the subtle nuances that exist within shall-issue regimes is important.  The dissent noted that there was no discovery in this case, and therefore no evidentiary record showing how frequently New York licensing officials actually granted concealed-carry permits in practice or whether the success rate of permit applications was higher in rural areas than in large cities.  Justice Breyer would have considered such evidence valuable in evaluating the law’s constitutionality.  The Court’s opinion said that evidence about the permitting system’s practical operation was not necessary to the outcome because New York conceded at oral argument that any non-particularized threat to safety would typically be insufficient to obtain a concealed-carry license for self-defense purposes.  However, the Court also observed in a footnote that the relatively permissive operation of Delaware’s permitting regime (5,680 licenses were granted in the first half of 2022, while only 112 were denied) was a factor in placing Delaware on the shall-issue list.  It’s not entirely clear where all that leaves us as to public carry permitting requirements going forward, but it seems plausible that courts may be free to closely scrutinize even shall-issue regimes that retain some discretionary elements if the percentage of permit applications granted is especially low.

On the theme of how faithful the Court’s opinion actually is to originalism (or, perhaps more relevant in this instance, textualism), the dissent noted that “the Court believes that the most relevant metrics of comparison are a regulation’s means (how) and ends (why)—even as it rejects the utility of means-end scrutiny.”  In other words, the Court’s test does emphasize legislative means and ends, albeit only through a historical lens.  While there’s certainly no definitive compilation of the regulations which the Framers themselves (or the founding generation) believed to be consistent with the Second Amendment, a true textualist might argue that courts should limit themselves to considering the text of potentially-analogous historical regulations and public commentary about those regulations at the time they were passed.  Looking to public commentary or understanding potentially gets a court close to the “how and why” of historical regulations—but probably not all the way there.  And, of course, attempting to glean the public understanding of why laws were passed and what regulations were considered appropriate at a certain point in history opens the door to all sorts of tricky questions:  What sources should be consulted?  How to determine the intent and perspective of a body of state legislators with diverse beliefs and motivations?  And how to deal with the possibility that accounts shedding light on contemporary public understanding were lost or destroyed?  It may often be that the loudest voice—not necessarily the voice providing an accurate account of why rules were passed and how they were viewed at the time—is the one that survives in the historical record. 

At the very least, Justice Breyer’s dissent identified a number of important obstacles which the historical-tradition test will face in practice as lower courts begin to apply it to new types of gun regulations.  While Bruen will certainly spur further historical scholarship and research, it’s worth pointing out that the Center for Firearms Law currently maintains the Repository of Historical Gun Laws—a searchable database of over 1,600 gun laws from medieval England through twentieth-century America.