Scholarship Highlight: Bruen, Retconning, and Noncitizen Exclusions

  • Date:
  • March 10th, 2023

By: Andrew Willinger

This is the third post in our series summarizing new legal scholarship regarding the Bruen decision (see the earlier posts here and here). 

First, in an article titled “Retconning Heller: Five Takes on New York Rifle & Pistol Association, Inc. v. Bruen,” Brannon Denning and Glenn Harland Reynolds summarize and critique Bruen.  Among other criticisms, Denning and Reynolds argue that the Bruen majority opinion is an attempt to “retcon” the decision in Heller—in other words, that Bruen tries to alter “the prior history, explicit or assumed, of [Second Amendment jurisprudence] in order to have a freer hand in” the future.  The piece also contends that certain post-Bruen decisions can be characterized as “uncivil obedience,” or strict adherence to what Bruen requires in order to communicate discomfort with the decision.  There is also a brief detour into popular culture to explain Bruen's legal test:

The prescription of analogy to gap-fill when history and tradition “run out” is reminiscent of a famous South Park episode involving the business plan of the “underpants gnomes.” In the episode, the characters become aware of gnomes who travel the world stealing underwear. Later it is revealed that their collection efforts are part of a business plan. As explained by the gnomes in a slide show, the plan has three phases: (1) Steal underpants; (2) ? ; (3) Profit. Given the number of questions about the analogical process left open in Bruen, we think you might (if somewhat uncharitably) say that the three phases of Second Amendment analysis post-Bruen are: (1) Consult text, history, tradition; (2) ? ; (3) Decision.

Second, Pratheepan Gulasekaram has a new article forthcoming in the Vanderbilt Law Review—“The Second Amendment’s ‘People’ Problem”—that examines “the relationship between ‘the people,’ immigration status, and the right to keep and bear arms, in the wake of both Heller and Bruen.”  Gulasekaram’s piece calls attention to an area of Second Amendment law that has received relatively little attention in the courts post-Bruen.  In one of the only recent decisions to evaluate the constitutionality of the federal prohibition on those “illegally or unlawfully in the United States” possessing firearms, a district judge in New Mexico upheld the provision on March 7 by analogizing to Founding-era loyalty oaths.

Brannon P. Denning and Glenn Harlan Reynolds, Retconning Heller: Five Takes on New York Rifle & Pistol Association, Inc. v. Bruen (Feb. 27, 2023)

From the Abstract:

New York Rifle & Pistol Association, Inc. v. Bruen was the first significant Second Amendment case that the Supreme Court had heard in over a decade since its decision in District Columbia v. Heller. It was one of the most highly anticipated case of the 2021-22 Term and serves as the first indication of how the addition of Justices Gorsuch, Kavanaugh, and Barrett might alter the trajectory of the Court’s Second Amendment case law.

This essay offers some preliminary observations about both the opinion itself, as well as its likely effects, some of which are starting to manifest. Our first take concerns the question of opinion assignment. Why did Chief Justice Roberts—whose support for the Second Amendment had been suspect—assign the opinion to Justice Thomas?

Takes two and three concern Justice Thomas’s substitution of text, history, and tradition for tiered-scrutiny; and his call for courts to adopt analogical reasoning should the former fail to provide answers to resolve particular cases. In rejecting tiered-scrutiny, Thomas argued that the lower courts had misread the Heller decision itself; that Heller rejected tiered-scrutiny in favor of a textual, historical, and traditional inquiry. In order to make Bruen seem less like an abrupt departure, we argue, Justice Thomas had to “retcon” Heller—reading back into the latter decision the analytical framework adopted in Bruen. We also question how helpful his explanation of the method for analogizing to other extant gun regulations when history and tradition have run out is likely to be to lower courts who have to rehear cases involving dozens of issues delineating the scope of the Second Amendment settled over the last fifteen years since Heller.

Take Four wonders about the status of what we earlier termed “the Heller safe harbor”—the list of “presumptively lawful” regulations that the Court said were not called into question by the decision. Critics at the time questioned whether these could be squared with the self-conscious originalism of the rest of the opinion. This tension is only heighted by Bruen’s text-history-tradition only approach.

Finally, in keep with our longstanding interest in lower court reception of destabilizing, possibly transformative Supreme Court opinions, we look at the reaction of the lower courts, post-Bruen. While approaches differ, a surprising number of these opinions seem to recognize Bruen for the sea-change it portends and are attempting to implement it in good faith. Although as was true with cases like United States v. Lopez and Heller itself, some courts are also trying to avoid the wider implications of Bruen using any available argument, however specious; and we detect in some an “uncivil obedience” intended to raise the Supreme Court’s costs of holding the line laid down in Bruen. A brief conclusion follows.

Pratheepan Gulasekaram, The Second Amendment's 'People' Problem, Vanderbilt Law Review, forthcoming (Mar. 3, 2023)


The second amendment has a “people” problem. In 2008, Heller v. District of Columbia expanded the scope of the second amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited the “the people” of the second amendment to “law-abiding citizens.” In 2022, NYSRPA v. Bruen doubled-down on the amendment’s self-defense rationales, but once again framed the right as one possessed by “citizens.” In the period between the two Supreme Court cases, eight federal courts of appeals wrestled with the question whether the right to keep and bear arms is a citizen-only right. Although those courts proffered varying perspectives on the meaning of “the people,” they uniformly rejected challenges to the federal criminal ban on possession by unlawfully present persons and nonimmigrants. In addition to the federal criminal ban, the immigration code allows for deportation of all noncitizens, including permanent residents, for firearms-related violations. In combination, the Supreme Court’s rhetoric, lower federal court decisions, and federal criminal and immigration statutes excise noncitizens from the “the people” of the second amendment.

This Article is the first to examine the relationship between “the people,” immigration status, and the right to keep and bear arms, in the wake of both Heller and Bruen. My analysis argues that courts undertheorize the systemic effects of constricting “the people” to citizens, or more recently, countenance historical inquiries that yield incoherent results. Intratextual comparison of “the people” of the second amendment with “the people” of the first and fourth amendments fares no better. That appraisal also commands broader inclusiveness for the second amendment’s rightsholders than current jurisprudence permits. This Article concludes that a more coherent theory of second amendment rightsholders would necessarily include most noncitizens, at least when the right is grounded in self-defense from interpersonal violence. This conclusion casts doubt on current federal law that categorically criminalizes possession by certain groups of noncitizens, as well as deportation rules that banish all noncitizens for firearms violations. More capacious interpretations of the second amendment’s “the people” in turn, helps ensure noncitizens’ inclusion under other core constitutional protections.