Originalism-by-Analogy and Second Amendment Adjudication

Abstract

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decisionmaking purported to constrain judicial discretion, but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts’ faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court’s recent grant of certiorari in Rahimi provides a much-needed opportunity for clarification and course correction. Without a more disciplined approach, the future of Second Amendment doctrine is dire, as is that of other areas of constitutional law where such tests take root.

This Article begins by explaining Bruen’s approach, which we call originalism-by-analogy. It shares some features with standard forms of originalism and traditionalism, but also differs in the degree to which it requires judges to reason analogically directly from the historical record rather than, for example, using historical sources to identify the original public meaning of a constitutional provision. The Article then explains and addresses several challenges of originalism-by-analogy by bringing together two bodies of scholarship that have thus far had little overlap: the voluminous literature on originalism and the generations-old literature on analogical reasoning in law.

We distill three broad challenges for post-Bruen Second Amendment law and scholarship, and suggest some partial solutions. First, courts applying Bruen must discern workable principles of relevant similarity—the sine qua non of analogical reasoning—to compare historical and modern laws. Second, doctrine must account for the fundamental differences between past and present, in part through careful attention to the level of generality at which the historical inquiry is conducted. Third, the approach must account for courts’ institutional limitations in conducting a difficult historical inquiry. This includes not over-reading silences in the record and also recognizing that—precisely because it requires comparison of past and present—Bruen not only licenses regulatory change, but preserves an important role for contemporary empirics and legislative deference.

Keywords: Second Amendment, constitutional law, firearms, Bruen