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Is the Bruen Test Binding Law? - Part I

  • Date:
  • December 13th, 2023

By: Randy Kozel

This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

Randy Kozel

In the 2022 case of New York State Rifle & Pistol Association v. Bruen, the U.S. Supreme Court ruled that New York unlawfully required citizens to demonstrate a special need to receive a license to carry a handgun. The Justices reached their conclusion by asking whether the law at issue was “consistent with the Nation’s historical tradition of firearm regulation.” Looking ahead, the Justices instructed courts to conduct the same inquiry in future disputes over gun laws. A regulation’s lawfulness, Bruen explained, depends on the “historical understanding” of the Second Amendment as informed by the existence (or absence) of analogous regulations going back to the founding era.

The Bruen Court clearly intended for its test to extend beyond the facts at hand, establishing a protocol for deciding challenges to other types of gun laws. In a set of two posts, I’ll suggest that it’s actually unclear whether the Court has the authority to insist on adherence to a stipulated methodology of interpretation—to declare, in effect, that only one mode of analysis is valid in construing vague constitutional language.

If the work of the federal judiciary is to resolve concrete disputes rather than to render advisory opinions, there must be some limits on a court’s ability to issue authoritative pronouncements.[1] As we’ll see, Bruen tests those limits. So while the case is integral to shaping the law of firearm regulation, analysis is valid in construing vague its implications for the judicial role reach much further.

The Justices are currently considering the implications of Bruen in United States v. Rahimi, another challenge to a firearm restriction. Rahimi is very likely to tell us something about the future of Second Amendment jurisprudence. That much is plain. Less obvious, but no less important, is the potential for Rahimi to shed light on the authority of judicial opinions and the nature of the judicial role.

Part I: Judicial Power and Judicial Precedent

The doctrine of stare decisis is the legal principle by which today’s courts defer to the work of their predecessors. In my book Settled Versus Right: A Theory of Precedent, I defended a robust doctrine of stare decisis, whereby courts accord substantial deference to prior decisions and overrule precedent only in exceptional situations. My argument was founded on the role of stare decisis in promoting judicial impersonality and supporting the rule of law.

But the strength of precedent is only half the story. We also need to account for the scope of precedent, meaning the universe of propositions for which a case stands as binding authority. If a precedent doesn’t apply to the facts at hand, we never reach the question of what kind of showing it takes to overrule it.

In modern American law, our tools for defining the scope of precedent tend to be fairly blunt. First and foremost is the distinction between binding holdings and dispensable dicta, with the former meaning something like the propositions that were necessary to the court’s decision, and the latter meaning something like the propositions that were extraneous. There’s a related idea that the scope of precedent flows from an opinion’s ratio decidendi, roughly meaning its line of reasoning.

The concepts of holding, dicta, and ratio decidendi are helpful in many cases. But as I explained in Settled Versus Right, they leave lots of questions unanswered. To see why, consider a range of features that one might find in a Supreme Court opinion. The opinion might discuss high-level methodological preferences, such as a focus on pragmatic analysis or substantive fairness or the Constitution’s original meaning. It might develop or invoke a doctrinal framework, such as strict scrutiny under the First Amendment (which asks whether a restriction on speech is narrowly tailored to serve a compelling interest) or Pike balancing under the Commerce Clause (which asks whether a law’s burden on interstate commerce exceeds its local benefits). And it might apply the doctrinal framework to the facts of the case at hand.

Which of these elements are encompassed within the binding scope of precedent—which is to say, which command deference as a matter of law? The answer is clearest for the last in the list: under nearly any definition, the scope of precedent includes the application of a legal rule to a specific set of facts. A trickier issue is the status of doctrinal frameworks such as strict scrutiny. Can a First Amendment case that involves, for instance, laws against picketing establish an authoritative precedent that disposes of cases involving a very different sort of law, such as one that limits the size of directional signs? American courts have assumed that the answer is yes, treating doctrinal frameworks as infused with binding force. Yet that assumption seems better explained by concerns of practical necessity than it does engagement with constitutional foundations, including Article III’s connection of the judicial power with the resolution of discrete “Cases” and “Controversies.”

The waters get murkier when we add a degree of generality by moving from doctrinal frameworks to interpretive methodologies like originalism or living constitutionalism. A court’s methodological premises are integral to its decisions. After all, an opinion like Bruen would read much differently if it had been written by a Justice who doubted the value of examining the Second Amendment’s original meaning. But can it really be true that today’s Supreme Court has the power to bind countless judges not only to an outcome, and not only to a doctrinal framework, but to an overarching methodology of interpretation? Did the Justices in Bruen have the authority to insist that judges essentially become originalists in all future cases involving the Second Amendment? And if they had that authority, do they likewise have the ability to command judges to become originalists in all constitutional cases, whether or not they deal with guns?

Commanding every federal judge to adhere to the same methodology of interpretation could pay dividends in terms of consistency and predictability. But the costs would be substantial. A judge’s philosophy of interpretation is the product of a lifetime of experience. It’s bound up with his deepest normative commitments about the meaning of law and the role of courts in our democratic system. Requiring a judge to interpret the Constitution using a methodology of which he disapproves—whether that means requiring an originalist to eschew originalism or requiring a living constitutionalist to eschew living constitutionalism—is a momentous step. The doctrine of stare decisis depends on compromise and coordination. It entails a perpetual effort to accommodate the role of judges as individuals with the role of courts as institutions. Allowing one group of judges to select the prevailing methodology for all others could throw the system out of whack. It might also put pressure on the idea that the fundamental role of the federal courts, including the Supreme Court, is to decide cases and controversies rather than to issue quasi-legislative prescriptions.

The impact of treating methodologies as binding is especially salient in the lower federal courts, which lack the power to overrule the Supreme Court’s pronouncements. In the lower courts, the strength of Supreme Court precedent is absolute—which makes defining the scope of precedent whole ballgame. The parts of a Supreme Court opinion that fall within its binding scope are compulsory. The parts of an opinion that fall outside its binding scope have an entirely different status. Though worthy of close study given their provenance, they ultimately serve as recommendations for the lower courts’ consideration.

Now, even if judges don’t need to follow the Supreme Court’s methodological lead, they might choose to do so. Maybe a given judge believes that the hierarchical structure of the federal judiciary implies a duty to heed the Justices’ advice. Or maybe the judge doesn’t want to get reversed by applying a methodology that the Supreme Court rejects. These types of assessments are perfectly legitimate. The crucial point is that, in the absence of binding precedent, it is the lower court judge who exercises the authority to interpret. He is not duty-bound to take the path recommended by the Supreme Court if he believes that a different path is more faithful to the law.[2]

In my next post, I’ll apply these principles to Bruen and suggest that it’s debatable whether the Court’s stipulated methodology of interpretation is entitled to precedential effect.


[1] Given my focus on the impact of judicial opinions, I don’t address the extent of the Supreme Court’s power to exercise supervisory authority through other channels, such as the promulgation of rules of procedure and evidence.
[2] Even if the Supreme Court has not created binding precedent on a given issue, there may be circuit law that settles the matter and requires adherence by judges within the circuit.