Twilight-Zone Originalism: The Peculiar Reasoning and Unfortunate Consequences of New York State Pistol & Rifle Association v. Bruen

115 Pages Posted: 24 Jan 2023 Last revised: 23 Dec 2023

Date Written: December 18, 2023

Abstract

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a standard for applying the Second Amendment that, in the year following its decision, led lower courts to invalidate dozens of state and federal firearms regulations. Part I of this Article criticizes Bruen, and Part II examines lower-court rulings applying the Court’s standard during its first year.

The Bruen standard is inconsistent with the Court’s assurance in earlier cases that prohibitions of gun possession by convicted felons and people with mental illness remain valid (and with the declarations of several concurring justices that the earlier dicta still stand). The standard also is inconsistent with the Court’s dictum concerning the permissibility of “shall issue” firearms licensing.

Bruen rests on ad hoc blips of historical data rather than any coherent principle, rendering constitutional law a scavenger hunt. By making the inaction of early legislatures decisive, it turns constitutional meaning on essentially irrelevant evidence. The Court evidently missed the distinction between declining to act and lacking the authority to do so.

Bruen places a “mission impossible” burden on lawyers to find and analyze 18th and 19th-century state and local regulations, many of which do not survive. Under Bruen, both legislative inaction and the government’s inability to prove legislative action create Second Amendment rights.

The Court’s standard is radically inconsistent with the original understanding of the right to bear arms, which allowed legislatures “to adopt such regulations of police, as may be dictated by the safety of the people and the advancement of public morals.” Contrary to the Court’s contention, the Bruen standard is incapable of meeting present and future needs.

The determination of some justices to treat the right to bear arms as a first-class right is in tension with the same justices’ professed originalism. Moreover, the Court declared that the scope of the right is the same under the Second and Fourteenth Amendments. It seemed likely to invoke the Fourteenth Amendment to strike down laws the ratifiers of that amendment had enacted with no hint they might be invalid. As the Bruen Court denounced “judge-empowering interest-balancing inquiries,” it empowered judges. In the name of originalism, it abandoned originalism.

Among the issues this Article considers are:

• How many and what kinds of historical analogues are necessary to render a challenged firearms regulation constitutional under Bruen?

• Will the original understanding of the people who ratified the Second Amendment or that of the people who ratified the Fourteenth Amendment determine the scope of the right to bear arms under Bruen?

• Does the Second Amendment provide a right to carry guns in places of worship?

• Are regulations barring firearms on airliners constitutional?

• Can the government validly prohibit the alteration of gun serial numbers?

• Does the Second Amendment guarantee a right to make one’s own guns?

• Is requiring a license to carry a handgun constitutional?

• Can 18-year-olds be barred from purchasing guns?

• Can convicted felons be barred from possessing guns?

• Can people subject to domestic-violence restraining orders be barred from possessing guns?

• May the government require people who carry handguns to complete a firearms training course?

Bruen is far from the worst decision in the history of the Supreme Court, but it is likely the strangest.

Keywords: constitutional law, rights and liberties, constitutional theory, Second Amendment

Suggested Citation

Alschuler, Albert W., Twilight-Zone Originalism: The Peculiar Reasoning and Unfortunate Consequences of New York State Pistol & Rifle Association v. Bruen (December 18, 2023). 32 William & Mary Bill of Rights Journal 1 (2023), U of Chicago, Public Law Working Paper No. 833, Available at SSRN: https://ssrn.com/abstract=4330457 or http://dx.doi.org/10.2139/ssrn.4330457

Albert W. Alschuler (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0730 (Fax)

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