Rehabilitating Bruen

  • Date:
  • December 19th, 2023

By: Jacob Charles

Bruen took a pummeling in its first year. When the Court first announced its novel method for adjudicating Second Amendment claims last summer, most observers were befuddled. Even many defenders of the Court’s general Second Amendment jurisprudence greeted the new test skeptically. Nelson Lund and Randy Barnett, for example, argued that Bruen’s new framework “unfortunately will be extremely difficult for lower courts to apply in a principled manner” and urged the Court to take a different approach instead. In the months afterward, lower court judges insistently and persistently criticized the method’s difficulty. Scholars in the decision’s aftermath debated whether Bruen could even be called originalist and critiqued its vagueness and logic. There seemed to be an emerging consensus, among jurists and commentators of various ideological stripes, that Bruen’s new test was unworkable.  

But, now, a year-and-a-half on, there seems to be a new project emerging: rehabilitating Bruen. For starters, some scholars appear to have changed their minds about Bruen’s consistency with originalism. As Joseph Blocher and Eric Ruben recount (fn 174), originalist scholars Randy Barnett and Larry Solum initially concluded that Bruen’s requirement to search for traditional regulation was “not a method for identifying the original meaning of the text.” The later, published version of Barnett and Solum’s argument, however, proclaimed that “Bruen is a thoroughly originalist opinion.” To be sure, there’s nothing necessarily problematic with this change in position. Scholars can and should change their views as additional evidence or insight comes to light; this example serves only as one data point suggesting the broader transformation in Bruen’s reception. The opinion started as an outcast; it’s now being mainstreamed. Two other examples help illustrate this transition from the near-universal scorn it received originally to Bruen’s solidifying place in constitutional law.

The first is mundane, but potentially significant. In oral argument during United States v. Rahimi, Solicitor General Prelogar resisted challenges to Bruen’s method. In that case, she was defending the federal law barring gun possession by those subject to domestic violence restraining orders and, in so doing, insisted that Bruen itself was not the problem. The Fifth Circuit applied the test poorly, she argued; it wasn’t that Bruen necessarily led to bad or unpredictable outcomes.

Justice Jackson questioned Prelogar about the point of going back to the historical understanding, about the way that history and tradition appear to focus only on “certain segments of society,” and about a potential “flaw in the history and traditions kind of framework.” Prelogar did not bite. Instead of critiquing the test, Prelogar urged the Court to clarify Bruen’s standard to correct several “fundamental errors [in] methodology that this case exemplifies and that we are seeing repeated in other lower courts.” In response to the suggestion that Bruen might require a hunt for precise historical analogues, Prelogar called that “really a caricature of Bruen.” By my count, Prelogar expressly described Bruen’s Second Amendment jurisprudence as demanding a search for “original meaning,” “original understanding,” or similar variants at least six times. In other words, it was the misunderstandings of Bruen that were the problem, not Bruen itself.

Of course, Prelogar is an advocate who needs to win the votes of at least two justices who signed on to Bruen. She cannot be faulted for appealing to justices who identify as originalist using their language and characterizing some critical commentary on Bruen as a caricature of that decision’s holding. That strategy is certainly more persuasive than the alternative: explicitly urging those justices to overrule a decision they themselves joined last year. But regardless of the justification for the practice, the effect is to confirm Bruen’s test as an appropriate methodological framework. By deflecting blame for the lower court chaos from Bruen itself, Prelogar’s arguments served to help rehabilitate the opinion.

Another recent example of the rehabilitation project comes from Will Baude and Robert Leider. In a forthcoming article in the Notre Dame Law Review, Baude and Leider argue that Bruen’s test is not strange or unworkable (or even novel) but actually a sophisticated implementation of a “general law” framework for the Second Amendment. Like Prelogar, they do not see the lower court implementation or scholarly criticism as signs of shortcomings in Bruen’s method. No, Bruen is not the problem; its readers are. “Bruen’s intended methodological shift,” they write, “has been widely misunderstood by the bench and bar.” In their telling, Bruen “marked an important methodological return to original legal principles.”

For Baude and Leider, the critics (and even well-meaning lower courts) get the test wrong. Bruen does not require courts to search for particular pieces of historic legislation to justify modern laws—as nearly all judges, advocates, and scholars reading or applying it have concluded. Rather, it “calls for a form of legal originalism, applying a classical view of fundamental rights as a form of unwritten customary law.” That approach requires identification of the underlying legal principles governing the historically-recognized customary right that judges can then use to “analogize, adapt, and apply the law to novel circumstances.” This, Baude and Leider argue, is nothing more than the common law method, “just as the general law approach would have it.” The clues they find in Bruen for this general law approach include its references to the right to keep and bear arms as a preexisting right (i.e., not one created by the Second Amendment, but simply recognized and codified by it) and the Court’s description of the inquiry into the law of the past. Bruen may have confused readers with its lengthy detailing of all potential analogues New York put forward, they concede, but that task was simply “an inquiry into general law” in the same way one might “describe the scope of a common law doctrine by looking to a wide range of cases, parsing the close cases, setting aside unusual outliers, and trying to distill the general principles.”

I think parts of Baude and Leider’s approach are normatively attractive. For example, in articulating the general approach, they argue that “[t]he constitutional validity of a prohibition on carrying arms aboard aircraft does not turn on whether the eighteenth and nineteenth centuries had analogous regulations of ships and railcars.” Rather, courts need to understand “the legal principles that govern sensitive places” because “[i]t is these legal principles that must be adapted, not the Framing era’s specific applications.” Taking that principles-based approach—one that Prelogar also endorsed—would eliminate some of the central problems with how the courts have been applying Bruen, such as by requiring numerous close analogues using a narrow level of generality and inferring from historical silence a lack of contemporary legislative authority. So, in that sense, their suggested approach would be a welcome change. And it is certainly a clarification the Court could make in Rahimi. Unlike Baude and Leider, however, I do not think you can read the words in Bruen and conclude its author or joiners had their general law approach in mind.

Baude and Leider do hedge in some ways. They say the general law approach is “what the Court was trying to say” (emphasis added), that it deployed the method “without using those terms” and did so in an admittedly “roundabout fashion” that “may have made the inquiry sound more novel than it really is.” I think that significantly underplays the extent to which the Court itself is responsible for any resulting confusion. The general-law principles-based approach would be an improvement over how Bruen has been applied in many courts so far; if that’s what it meant, the Court should be more direct in Rahimi. It will certainly need to provide lower courts more guidance going forward.

Bruen’s announcement of a new test for Second Amendment claims marked a turning point. No one denies the significance of the move, even if they debate the method’s novelty or how consistent it is with the justices’ professed theoretical commitments. In part because of that significance, the opinion faced a frosty reception in its immediate aftermath. But recent rehabilitative efforts may mark signs of the first thaw. Because Bruen does not appear to be going away any time soon, the Court’s adoption of a revisionary reading that serves to alter the test under the banner of clarification may be the best we can hope for.