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Scholarship Highlight: General Law, Empirical Data, and Enforcement under Bruen

  • Date:
  • November 17th, 2023

By: Andrew Willinger

[The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.]

On November 3, the Center for Firearms Law hosted its annual law review symposium at Notre Dame Law School in partnership with Notre Dame Law Review on the topic of History, Tradition, and Analogical Reasoning.  The symposium brought together leading legal scholars, historians and practitioners to discuss pressing questions surrounding Bruen’s historical-analogical test.  A full recap of the event, including video recordings of the panel discussions, will run on the blog shortly.

A number of draft articles presented at the symposium—which are forthcoming in the Notre Dame Law Review­—are now posted to SSRN including:  

William Baude and Robert Leider, The General Law Right to Bear Arms, 99 N.D. L. Rev. _ (forthcoming 2024)

Abstract:

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a text and history test for evaluating Second Amendment challenges. This test has produced both confusion and criticism. Many lower court judges have construed the Supreme Court’s test to require a determination whether the Framing generation had a nearly identical regulation, but many modern regulations have no direct Framing-era analogue. Judges have objected to Bruen, lamenting that they are not historians; scholars have criticized Bruen’s test as ill-defined and unworkable.

We argue that Bruen’s text and history test has not been properly understood. Bruen is best understood as continuing the Supreme Court’s original law approach to the Second Amendment. Under an original law approach, courts must determine and apply the Framing-era law protecting the right to keep and bear arms. This means that courts must determine the principles that separated valid regulations of the right to bear arms from unconstitutional infringements. Courts must then apply these legal principles to modern forms of regulation. Applying old principles to new facts sometimes requires analogical reasoning and extrapolation, but these are or should be basic tools of legal reasoning. In short, Bruen does not require courts to become historians; it asks that they be common-law judges, applying old law in new times.

Darrell A.H. Miller, Alexandra Filindra, and Noah Kaplan, Technology, Tradition, and ‘The Terror of the People’, 99 N.D. L. Rev. _ (forthcoming 2024)

Abstract:

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court mandated a text, history, tradition, and analogy-only approach to Second Amendment cases.

No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging “historical tradition of firearm regulation” to meet constitutional muster. Some despair that that reams of data, careful experiments, and rigorous statistical analyses no longer have any relevance to the gun debate.

But those that claim that Bruen signals the end of empirically-grounded policy solutions badly misread the opinion. Empirical studies can still inform meaningful gun policy, but the boundaries that make such studies legally significant are now set by Bruen’s text, history, tradition and analogy-only approach.

This article uses an original survey experiment to measure the “chill” caused by public weaponry, and connects those experimental findings to the longstanding tradition of regulating weapons to protect the peace and to prevent “the terror of the people.” The article shows that, far from being irrelevant, modern empirical data can help bridge the gap between modern problems and technology and the historical record of gun rights and regulation.

Andrew Willinger, Bruen’s Enforcement Puzzle: Unearthing and Adjudicating the Historical Enforcement Record in Second Amendment Cases, 99 N.D. L. Rev. _ (forthcoming 2024)

Abstract:

The Supreme Court’s 2022 decision in NYSRPA v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appears to be part of a larger inquiry into possible discriminatory taint, an issue the Court has previously addressed in the historical context in cases dealing with criminal procedure, voting rights, and equal protection. This Article seeks to identify lessons from these other areas of constitutional law to inform the treatment of enforcement evidence in Second Amendment cases post-Bruen, where questions of historical enforcement can be especially nuanced.

The Article makes three major contributions to the existing literature. It is the first in-depth scholarly examination of how Bruen treats enforcement evidence within its historical-tradition test, including by appearing to place the burden of proving non-discrimination on the government. Second, the Article identifies Bruen’s focus on possible discriminatory enforcement as a subspecies of historical discriminatory “taint” or legislative animus arguments the Court often considers in other areas of constitutional law and explores how Bruen’s treatment of enforcement evidence may depart in important ways from the Court’s past practice. Finally, the Article uses Southern Reconstruction era firearm regulation – specifically, original archival research into the local enforcement of North Carolina’s 1879 concealed carry ban – as a case study to demonstrate how assessing possible discriminatory taint for facially neutral historical laws presents unique challenges and to examine whether Bruen’s approach is well-suited to appreciate and address such complexity.