Albert W. Alschuler (University of Chicago Law School) has posted Twilight-Zone Originalism: The Supreme Court's Peculiar Reasoning in New York State Pistol & Rifle Association v. Bruen on SSRN. Here is the abstract:
In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court announced: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” After reviewing dozens of firearms restrictions approved by Parliament and American legislatures between 1285 and 1900, the Court concluded that few of them limited carrying weapons as much as a challenged New York statute. It therefore held this statute invalid.
Part I of this Article criticizes the Bruen standard, which (1) identifies no prevailing understanding of the Second Amendment’s text at the time of its enactment; (2) turns on blips of historical data rather than any coherent or comprehensible principle; (3) makes constitutional adjudication a scavenger hunt; (4) treats legislative inaction or failure to regulate a practice as evidence that this practice was originally regarded as a constitutional right; (5) would, if extended beyond the Second Amendment, validate every law and governmental practice that existed when the Constitution and Bill of Rights were ratified; (6) departs radically from the original understanding of the right to bear arms by reversing the presumption of constitutionality, abandoning traditional efforts to reconcile this right with the “police power” of state governments, and repudiating the interest-balancing that characterized decisions concerning this right from the early 19th century through the start of the 21st; (7) cannot adequately adapt the Second Amendment to changed circumstances; (8) contradicts the Court’s earlier assurances (and the assurances of three concurring justices in Bruen) that the constitutionality of prohibiting firearms possession by felons and the mentally ill is not in doubt; and (9) appears to be more the product of some justices’ determination to treat the right to bear arms as a “first-class right” than of these justices’ purported originalism.
Part II examines the decisions of federal courts applying Bruen in the six months after this decision. They include: (1) decisions concerning how many (and what kinds of) pre-20th analogues are necessary to render a challenged firearms regulation constitutional; (2) decisions illustrating the burden Bruen casts on litigants charged with finding and analyzing antique state and local firearms regulations; (3) decisions recognizing a Second Amendment right to carry firearms in places of worship; (4) a decision that raises questions about the federal regulations that forbid carrying firearms on airliners; (5) a decision in which a judge declared, “Certainly, the usefulness of serial numbers in solving gun crimes makes [the federal statute prohibiting the possession of firearms with altered or obliterated serial numbers] desirable for our society”—and then held this statute unconstitutional; (6) a decision striking down a federal statute forbidding firearm possession by a person who’s prohibited by court order from stalking or threatening an intimate partner because, although the “historical tradition” of disregarding domestic violence is “likely unthinkable today,” Bruen makes this tradition decisive; and (7) a decision by a Third Circuit panel illustrating the lengths to which federal courts now go to uphold the federal felon-in-possession statute—a statute that appears to fail the Bruen test.
A conclusion focuses on one last firearms issue—whether requiring applicants for firearms permits to complete and pay for 18 hours of firearms training violates the Second Amendment. In discussing this issue, it contrasts the Bruen standard with more traditional approaches to constitutional adjudication and defends the legitimacy of interest balancing.
Recommended. For a different take from an originalist perspective, see Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition.
