Is the Bruen Test Binding Law? - Part II

  • Date:
  • December 15th, 2023

By: Randy Kozel

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

Part II: Bruen as Precedent

My previous post argued that we shouldn’t take for granted that the interpretive protocol embedded within a Supreme Court decision exerts binding force in future cases. That position has implications for how courts ought to construe Bruen’s statement that the applicable case law “requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”

It's worth noting that other Supreme Court decisions are in the same boat. The most salient example is Chevron USA Inc. v. Natural Resources Defense Council, Inc., which instructs judges to uphold administrative interpretations of statutory language so long as those interpretations are reasonable. The Chevron doctrine has prompted extensive debate, and a request to overrule the case is pending before the Supreme Court. But the threshold question is whether Chevron even needs to be overruled—or whether its interpretive protocol is too wide-ranging to exert binding force in future cases. (I address this issue in a previous article and a recent post.) The Chevron test is bound up with issues of precedential scope similar to those in Bruen, notwithstanding the different contexts presented by the two cases.

As for whether the Bruen test is binding law, I submit that the matter is unresolved, and that the relevant principles cut in different directions. Consider:

  • The Bruen test tells courts which factors they may examine—and which factors they may not examine—in evaluating countless types of firearm regulations, many of which will bear little resemblance to the law at issue in Bruen That type of edict has the feel of dispensable dicta that ranges too far beyond the facts at hand to command deference in future cases.
  • Then again, American courts have accepted the binding effect of doctrinal frameworks such as strict scrutiny, which likewise sweep beyond the facts presented by any given case.
  • Then again, strict scrutiny looks more like a targeted doctrinal framework than an overarching interpretive methodology, and Bruen—as, in effect, an endorsement of originalism—arguably falls closer to the latter than the former.
  • Then again, the corollary of imposing a test such as strict scrutiny is that other interpretive choices, potentially including originalist analysis, are marginalized or excluded. The effect is to erode the distinction between targeted frameworks and broader methodologies, arguably calling for similar treatment of the two.

In light of these complexities, maybe the best we can do is to look for guidance from recent practice. We needn’t look far, because a Supreme Court case from 2010 is in many ways the conceptual bookend to Bruen. Once again, though, the takeaways are up for grabs.

The case is United States v. Stevens, which dealt with the First Amendment as applied to videos exhibiting extreme cruelty to animals. In Stevens, which Bruen cites favorably, the Supreme Court explained that the government must point to historical evidence to support any argument that certain types of speech (such as depictions of animal cruelty) receive diminished constitutional protection.

The wrinkle was that some of the Court’s prior cases had conducted a markedly different type of inquiry, focusing on factors such as the government’s interest in restricting speech, the harm associated with the speech, and the extent of the speech’s countervailing value. But according to Stevens, those factors had not become part of First Amendment law. The references to government interests, harm, and countervailing value were merely “descriptive” of what the Court was doing, and they posed no impediment to the adoption of an alternative, historically focused test going forward.

As it relates to precedential scope, Stevens is an enigma, and arguably even a contradiction in terms. On the one hand, Stevens characterizes the methodological approach of prior cases as merely “descriptive” and thus unworthy of deference. That would seem to imply similar status for tests like the one articulated in Bruen. On the other hand, the Stevens Court presumably meant for its own test to receive deference going forward, and the Justices underscored the point by applying the test to a different type of speech the very next year. But if the pre-Stevens methodology was merely descriptive—in other words, beyond the binding scope of precedent—isn’t the same true of the Stevens test? And more to the point, isn’t the same true of Bruen?

It’s clear that Bruen’s assessment of the New York handgun law (and laws like it) is binding precedent. It’s also clear that the Bruen Court was justified in focusing on history and original understandings to reach its decision. Likewise, it would be appropriate for courts—whether district courts and appellate courts or the Supreme Court itself—to replicate the Bruen approach in future cases involving other firearm regulations. In doing so, those courts might consider Justice Barrett’s concurring thoughts on the proper manner of conducting historical analysis. They might also attend to Justice Alito’s concurrence and its criticism of “means-end” analysis. But saying that courts may apply the Bruen test—and that they may draw supplemental inferences from the concurrences—doesn’t mean they must do so. As Justice Alito observed, “[a]ll that” the Court decided in Bruen was “that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the [relevant New York law] is unconstitutional.”

As we’ve seen, whether there’s a legal obligation to follow Bruen’s interpretive protocol is a complicated question of precedential scope for which existing law provides no simple answer. Though resolving the ambiguity may be difficult, avoiding it is more straightforward. Interpretation begins with the legal text. When the text’s meaning is uncertain, it is both sensible and appropriate for the Justices to encourage lower courts to consider history and tradition as relevant to whether a given law is compatible with the Constitution. Yet the Justices need not insist—especially when the legal basis for such insistence is debatable—on any particular method of distilling the lessons of history and tradition. Nor need the Justices prohibit—again, when the grounds for such prohibition are debatable—the consultation of any and all factors aside from history and tradition.

The Supreme Court accordingly might consider clarifying that while Bruen’s treatment of the New York law at issue is binding and compulsory, the case’s broader methodological proclamations are best understood as explanatory (of the Justices’ analytical process) and precatory (for future cases involving Second Amendment challenges). To be sure, if lower courts go astray, the Justices retain the power to grant certiorari and right the ship. Even so, framing Bruen’s methodological approach as instructional rather than mandatory would avoid thorny questions about the scope of precedent and focus the judiciary’s attention on resolving concrete disputes as they arise.