Bruen's Enforcement Puzzle: Unearthing and Adjudicating the Historical Enforcement Record in Second Amendment Cases

39 Pages Posted: 26 Oct 2023 Last revised: 3 Jan 2024

See all articles by Andrew Willinger

Andrew Willinger

Duke University School of Law, Center for Firearms Law

Date Written: October 25, 2023

Abstract

The Supreme Court’s 2022 decision in NYSRPA v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appears to be part of a larger inquiry into possible discriminatory taint, an issue the Court has previously addressed in the historical context in cases dealing with criminal procedure, voting rights, and equal protection. This Article seeks to identify lessons from these other areas of constitutional law to inform the treatment of enforcement evidence in Second Amendment cases post-Bruen, where questions of historical enforcement can be especially nuanced.

The Article makes three major contributions to the existing literature. It is the first in-depth scholarly examination of how Bruen treats enforcement evidence within its historical-tradition test, including by appearing to place the burden of proving non-discrimination on the government. Second, the Article identifies Bruen’s focus on possible discriminatory enforcement as a subspecies of historical discriminatory “taint” or legislative animus arguments the Court often considers in other areas of constitutional law and explores how Bruen’s treatment of enforcement evidence may depart in important ways from the Court’s past practice. Finally, the Article uses Southern Reconstruction era firearm regulation - specifically, original archival research into the local enforcement of North Carolina’s 1879 concealed carry ban - as a case study to demonstrate how assessing possible discriminatory taint for facially neutral historical laws presents unique challenges and to examine whether Bruen’s approach is well-suited to appreciate and address such complexity.

Keywords: Second Amendment, Firearms, Gun Regulation, History, Enforcement, Discrimination

JEL Classification: K10

Suggested Citation

Willinger, Andrew, Bruen's Enforcement Puzzle: Unearthing and Adjudicating the Historical Enforcement Record in Second Amendment Cases (October 25, 2023). Notre Dame Law Review, Forthcoming, Duke Law School Public Law & Legal Theory Series No. 2023-63, Available at SSRN: https://ssrn.com/abstract=4612870

Andrew Willinger (Contact Author)

Duke University School of Law, Center for Firearms Law ( email )

Box 90360
Durham, NC 27708-0360
United States
919-613-8641 (Phone)

HOME PAGE: http://https://firearmslaw.duke.edu/

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