Guns, Analogies, and Constitutional Interpretation Across Centuries

22 Pages Posted: 17 Jan 2024

See all articles by Frederick Schauer

Frederick Schauer

University of Virginia School of Law

Barbara A. Spellman

University of Virginia School of Law

Date Written: December 27, 2023

Abstract

In New York State Rifle & Pistol Association v. Bruen, Justice Thomas’s majority opinion announced that the key to applying originalist methodology across a vast temporal gap involved the search not for a “historical twin,” but a historical “analogue.” And in defending analogical reasoning as the appropriate approach to implementing originalism, the Court described analogical reasoning in law as “commonplace.” But however commonplace it may be, complications exist that the Bruen Court neglected to acknowledge. This Article, prepared for the Notre Dame/Duke symposium on Bruen’s originalist and analogical methodologies, explores the complications that the Bruen majority ignored, including the role of the background and experiences of the analogizer in seeing and using analogies and the way in which successful analogies are based on structures and relationships and not merely on surface features and surface similarities.

Suggested Citation

Schauer, Frederick and Spellman, Barbara A., Guns, Analogies, and Constitutional Interpretation Across Centuries (December 27, 2023). Notre Dame Law Review, Vol. 100, No. 2, 2024, Available at SSRN: https://ssrn.com/abstract=4676643

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6777 (Phone)

Barbara A. Spellman

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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