Scholarship Highlight: Additional Perspectives on Bruen

This is the second post in our ongoing series summarizing recent legal scholarship on Bruen and the future course of Second Amendment jurisprudence.  In a new Article, Albert Alschuler focuses on Bruen’s decision to emphasize and elevate legislative inaction:

But the inaction of early legislatures doesn’t imply that anyone regarded training requirements as unconstitutional. No legislator is known to have maintained that firearms training would contravene natural law or that it would be so grave a violation of human rights that future governments shouldn’t be allowed to insist on it however much firearms technology and society might change. Perhaps the central theme of this Article has been that Bruen makes nearly irrelevant evidence of constitutional meaning decisive.

Professor Alschuler also addresses the now-vacated Third Circuit panel decision in Range v. Attorney General upholding the felon prohibitor (which we previously covered here), describing the decision as "part of the problem to which Bruen is a bad solution," and arguing that tiers of scrutiny are preferable to an approach where "[b]lips of historical data rather than reason or principle [] determine outcomes, and a brutal default rule [] strike[s] down regulations the Framers of the Constitution never meant to block."  In his latest article, Joseph Greenlee also criticizes Range, but for different reasons -- to Greenlee, the panel decision is unsupported by the historical record because "no one in 17th-century England or in America during the colonial or founding eras was ever disarmed for a nonviolent crime."

Center affiliated scholar and former executive director Jake Charles has a new piece critically analyzing Bruen, summarizing how lower courts have applied Bruen thus far, and arguing that the historical-analogical test has proved largely unworkable in practice:

The lower courts are fractured. They have reached divergent conclusions about the constitutionality of major state and federal laws. In the process of seeking to apply Bruen faithfully, they have created their own bespoke subrules to implement Bruen’s severely underspecified test. These cases demonstrate that Bruen will only lead to more inconsistency and unpredictability.

Professor Charles also describes how legislators "in the post-Bruen world should take care to create a legislative record that supports any new law." 

Albert W. Alschuler, Twilight-Zone Originalism: The Supreme Court's Peculiar Reasoning in New York State Pistol & Rifle Association v. Bruen (January 24, 2023)

Abstract:

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court announced: “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.” After reviewing dozens of firearms restrictions approved by Parliament and American legislatures between 1285 and 1900, the Court concluded that few of them limited carrying weapons as much as a challenged New York statute. It therefore held this statute invalid.

Part I of this Article criticizes Bruen, which it says turns on blips of historical data rather than any coherent principle and makes constitutional adjudication a scavenger hunt. This purportedly originalist decision departs radically from the original understanding of the right to bear arms. Moreover, the decision rests on a logical fallacy, treating a tradition of failing to regulate firearms in the same way as a tradition of regulation and making all-but irrelevant evidence decisive. Bruen is inconsistent with assurances offered by the Supreme Court in earlier cases, and, contrary to the Court’s contention, it cannot adequately adapt the Second Amendment to changed circumstances.

Part II examines the decisions of federal courts applying Bruen in the six months after this decision. It considers how many and what kinds of pre-20th analogues are necessary to render a challenged firearms regulation constitutional and whether the following regulations can survive: prohibitions of carrying firearms in places of worship, prohibitions of carrying guns on airliners, prohibitions of possessing firearms with obliterated serial numbers, prohibitions of gun possession by convicted felons, and prohibitions of firearm possession by people who are prohibited by court order from stalking or threatening an intimate partner.

A conclusion focuses on one more firearms issue—whether requiring applicants for firearms permits to complete and pay for 18 hours of firearms training violates the Second Amendment. In discussing this issue, it contrasts the Bruen standard with more traditional approaches to constitutional adjudication and defends the legitimacy of interest balancing.

Joseph Greenlee, Avoiding Danger: Why Mere Disrespect for the Law Cannot Justify Disarmament (January 3, 2023)

From the Abstract:

The Supreme Court recently set forth the test for all Second Amendment challenges: if the amendment’s text covers the conduct at issue, the government can justify its regulation only by demonstrating that it is consistent with America’s tradition of firearm regulation. The Third Circuit became the first federal circuit court to apply this test in Range v. Attorney Gen. United States, in which it upheld a lifetime firearms prohibition for a misdemeanant who made false statements to receive $2,458 in food stamps in 1995. The Range court concluded that the American tradition of firearm regulation allows people to be permanently disarmed if they demonstrate a disrespect for the law.

This article explains where Range erred in its historical analysis, while supplementing the already ample historical evidence proving that the Second Amendment, as originally understood, allows for the disarmament of only dangerous persons. Prior to this article’s publication, the Range opinion was vacated, as the Third Circuit voted to rehear the case en banc. But the court’s interpretation of the historical record was not unique, so its inaccuracies must still be addressed. The aim of this article is to prevent a misreading of history and tradition in prohibited person cases.

Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History (January 25, 2023), forthcoming in the Duke Law Journal

Abstract:

In June 2022, for the first time in American history, the Supreme Court struck down a state law on Second Amendment grounds. In that decision, New York State Rifle & Pistol Association v. Bruen, the Court declared that future Second Amendment challenges should be evaluated solely with reference to text, history, and tradition. That test is essentially sui generis in the Court’s individual-rights jurisprudence. Yet it represents both an extension of an increasingly historically-focused Supreme Court case law and a harbinger of future doctrinal transformations in other domains.

This Article critically assesses Bruen’s test, and in the process raises concerns about other areas of rights-jurisprudence trending in ever more historically-inflected directions. In critiquing Bruen’s method, the Article foregrounds the unsatisfying justifications for the novel test and its unworkable features. It underscores how Bruen’s emphasis on historical silence imbues an absent past with more explanatory power than it can bear—or than Bruen even tries to justify. The Article then synthesizes and analyzes the results from the more than 100 lower federal court decisions applying Bruen, an analysis that reveals the test’s fundamental unworkability.

On top of that descriptive and critical work, the Article makes several prescriptive arguments about possible judicial and legislative responses to the decision. For judges, the Article endorses and augments arguments about the use of neutral historical experts appointed by courts, identifies ways that lower courts can usefully underline Bruen’s flaws and mitigate its open texture, and suggests that courts are justified in narrowing Bruen from below. For lawmakers, it argues that when legislatures pass new gun laws, they ought to be explicit about four types of evidence for the law’s constitutionality that track Bruen’s new demands: the purpose for the law, the expected burden on armed self-defense, the precise nature of the problem to which the law is directed, and the historical tradition from which the law springs.