Manufacturing Outliers

Abstract

In New York State Rifle and Pistol Association, Inc. v. Bruen, the Court struck down New York’s discretionary concealed carry permitting law, describing it as a contemporary and historical outlier. Bruen uses the term “outlier” as a description of fact and a justification for action. But what does the Court mean by this term? After all, there was nothing atypical about New York’s licensing law even thirty years ago, when most states either had may-issue permitting or prohibited concealed carry altogether. This article analyzes Bruen and critiques its use of outlier reasoning as failing to adhere to two principles that should guide any argument from outliers—transparency and rigor. Bruen is not transparent about the assumptions that go into constructing the baselines against which purported outliers will be measured. Neither is Bruen rigorous about the manner in which it characterizes, groups, and verifies the historical facts that it does assemble. By dismissing as outliers so much of the historical evidence offered to support New York’s law, and then regarding the remainder as a self-evident, pre-existing, and neutral baseline, the Court confuses an exercise in discretion for a process of discovery.

Keywords: constitutional law, constitutional interpretation, Second Amendment, concealed carry, firearms, legal history