The General-Law Right to Bear Arms

Abstract

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a text and history test for evaluating Second Amendment challenges. This test has produced both confusion and criticism. Many lower court judges have construed the Supreme Court’s test to require a determination whether the Framing generation had a nearly identical regulation, but many modern regulations have no direct Framing-era analogue. Judges have objected to Bruen, lamenting that they are not historians; scholars have criticized Bruen’s test as ill-defined and unworkable.

We argue that Bruen’s text and history test has not been properly understood. Bruen is best understood as continuing the Supreme Court’s original law approach to the Second Amendment. Under an original law approach, courts must determine and apply the Framing-era law protecting the right to keep and bear arms. This means that courts must determine the principles that separated valid regulations of the right to bear arms from unconstitutional infringements. Courts must then apply these legal principles to modern forms of regulation. Applying old principles to new facts sometimes requires analogical reasoning and extrapolation, but these are or should be basic tools of legal reasoning. In short, Bruen does not require courts to become historians; it asks that they be common-law judges, applying old law in new times.

Keywords: Bruen, second amendment, bear arms, keep arms, general law, constitution, originalism, original law