Recalibrating Bruen: The Merits of Historical Burden-Shifting In Second Amendment Cases

Belmont Law Review, Vol. 11

53 Pages Posted: 27 Feb 2023 Last revised: 17 Feb 2024

Date Written: February 26, 2023

Abstract

Formerly posted to SSRN as The Procedural Vitality of Heller's Presumptively Lawful Categories.

After Bruen, the prevailing assumption was that the Second Amendment framework shifted radically. Courts throughout the country have already invalidated key gun safety statutes while applying the new test. However, such holdings fail to grapple with the full weight of Second Amendment doctrines. A proper application of the doctrine in toto will result in no significant changes to the constitutionality of the vast majority of gun laws after Bruen.

This Article explains the underdeveloped interaction between two principal Second Amendment doctrines--presumptions of legal validity and historical analyses. The interaction, framed in its simplest terms, is that the presumption acts either conclusively or as a burden-shifting device when considering historical evidence. By making explicit the procedural assumptions in Second Amendment cases, courts applying the doctrine properly will reduce the political pressures inherent in the doctrine and maintain the constitutionality of gun safety laws.

Keywords: Guns, Second Amendment, Public Safety, Keep and Bear Arms, Bruen, Heller, McDonald, Miller, Constitutional Law, Burden-shifting, right to bear arms, firearms, Congress, The Procedural Vitality of Heller's Presumptively Lawful Categories.

Suggested Citation

Schascheck II, Kevin, Recalibrating Bruen: The Merits of Historical Burden-Shifting In Second Amendment Cases (February 26, 2023). Belmont Law Review, Vol. 11, Available at SSRN: https://ssrn.com/abstract=4371268

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