Retconning Heller: Five Takes on New York Rifle & Pistol Association, Inc. v. Bruen

48 Pages Posted: 3 Mar 2023 Last revised: 16 Aug 2023

See all articles by Brannon P. Denning

Brannon P. Denning

Samford University - Cumberland School of Law

Glenn Harlan Reynolds

University of Tennessee College of Law

Date Written: March 15, 2023

Abstract

New York Rifle & Pistol Association, Inc. v. Bruen was the first significant Second Amendment case that the Supreme Court had heard in over a decade since its decision in District Columbia v. Heller. It was one of the most highly anticipated case of the 2021-22 Term and serves as the first indication of how the addition of Justices Gorsuch, Kavanaugh, and Barrett might alter the trajectory of the Court’s Second Amendment case law.

If Heller could have been characterized as a “minimalist” opinion at the time of its decision and McDonald v. Chicago as an almost overdetermined extension of Heller by its application to the states through incorporation, Bruen tends towards maximalism, dramatically expanding the scope of the Second Amendment and threatening a variety of gun control laws that lower courts had upheld while the Court stayed its hand. Given that there is now a solid majority (if not a super-majority) willing to support a robust Second Amendment, whatever Bruen’s ultimate scope, it is unlikely that the Court will be as quiescent as it was in the decade following Heller.

This essay offers some preliminary observations about both the opinion itself, as well as its likely effects, some of which are starting to manifest. Our first take concerns the question of opinion assignment. Why did Chief Justice Roberts—whose support for the Second Amendment had been suspect—assign the opinion to Justice Thomas?

Takes two and three concern Justice Thomas’s substitution of text, history, and tradition for tiered-scrutiny; and his call for courts to adopt analogical reasoning should the former fail to provide answers to resolve particular cases. In rejecting tiered-scrutiny, Thomas argued that the lower courts had misread the Heller decision itself; that Heller rejected tiered-scrutiny in favor of a textual, historical, and traditional inquiry. In order to make Bruen seem less like an abrupt departure, we argue, Justice Thomas had to “retcon” Heller—reading back into the latter decision the analytical framework adopted in Bruen. We also question how helpful his explanation of the method for analogizing to other extant gun regulations when history and tradition have run out is likely to be to lower courts who have to rehear cases involving dozens of issues delineating the scope of the Second Amendment settled over the last fifteen years since Heller.

Take Four wonders about the status of what we earlier termed “the Heller safe harbor”—the list of “presumptively lawful” regulations that the Court said were not called into question by the decision. Critics at the time questioned whether these could be squared with the self-conscious originalism of the rest of the opinion. This tension is only heighted by Bruen’s text-history-tradition only approach.

Finally, in keep with our longstanding interest in lower court reception of destabilizing, possibly transformative Supreme Court opinions, we look at the reaction of the lower courts, post-Bruen. While approaches differ, a surprising number of these opinions seem to recognize Bruen for the sea-change it portends and are attempting to implement it in good faith. Although as was true with cases like United States v. Lopez and Heller itself, some courts are also trying to avoid the wider implications of Bruen using any available argument, however specious; and we detect in some an “uncivil obedience” intended to raise the Supreme Court’s costs of holding the line laid down in Bruen. A brief conclusion follows.

Keywords: Second Amendment, Supreme Court, Bruen, Heller, McDonald, right to keep and bear arms, uncivil obedience, lower courts, history and tradition, tiered-scrutiny

JEL Classification: K10

Suggested Citation

Denning, Brannon P. and Reynolds, Glenn Harlan, Retconning Heller: Five Takes on New York Rifle & Pistol Association, Inc. v. Bruen (March 15, 2023). University of Tennessee Legal Studies Research Paper No. 446, William & Mary Law Review, Vol. 65, No. 1, 2023, Available at SSRN: https://ssrn.com/abstract=4372216 or http://dx.doi.org/10.2139/ssrn.4372216

Brannon P. Denning (Contact Author)

Samford University - Cumberland School of Law ( email )

800 Lakeshore Dr.
Birmingham, AL 35229
United States
205-726-2413 (Phone)
205-726-4060 (Fax)

Glenn Harlan Reynolds

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996-1810
United States
865-974-6744 (Phone)

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