Volume 98, Number 6

December 2023
Symposium Articles

Guided by History: Protecting the Public Sphere from Weapons Threats Under Bruen

Joseph Blocher, Reva B. Siegel

Since the Founding era, governments have banned guns in places where weapons threaten activities of public life. The Supreme Court reaffirmed this tradition of “sensitive places” regulation in District of Columbia v. Heller, and locational restrictions on weapons have become a central Second Amendment battleground in the aftermath of New York State Rifle & Pistol Association v. Bruen. Liberals have criticized Bruen for requiring public safety laws to mimic founding practice, while conservatives have criticized it for licensing regulatory change not within the original understanding. In this Essay we argue that Bruen’s analogical method looks to the past to guide change in weapons regulation, not to foreclose change. We illustrate the kinds of sensitive-place regulations Bruen authorizes with examples spanning several centuries, and close by demonstrating—contrary to recent court decisions—that a 1994 federal law prohibiting gun possession by persons subject to a domestic violence restraining order is constitutional under Bruen.

Where some imagine the past as a land of all guns and no laws, this Article shows how weapons regulation of the past can guide public safety regulation of the present. Governments traditionally have protected activities against weapons threats in sites of governance and education: places where bonds of democratic community are formed and reproduced. We argue that Bruen’s historical-analogical method allows government to protect against weapons threats in new settings—including those of commerce and transportation—so long as these locational restrictions respect historical tradition both in terms of “why” and “how” they burden the right to keep and bear arms.

At the heart of this Article is a simple claim: That Bruen’s analogical method enables public safety laws to evolve in step with the gun-related harms they address. Bruen does not require the asymmetrical and selective approach to constitutional change practiced by some in its name. Just as Bruen extends the right of self-defense to weaponry of the twenty-first century, it also recognizes democracy’s competence to protect against weapons threats of the twenty-first century.

We apply these principles to demonstrate the constitutionality of the federal law prohibiting gun possession by people subject to a domestic violence restraining order, which the Supreme Court is currently considering in United States v. Rahimi.

Policing in the Age of the Gun

Brandon del Pozo, Barry Friedman

This Article examines how the rapid deregulation and rampant possession of firearms is likely going to impact policing, and the constitutional law that governs it. For the longest time, lawful gun carry, concealed or open, was exceedingly rare. For a police officer to see a gun was both to see danger, and a crime in progress. This link among guns, danger, and unlawful possession has shaped much of the law of policing. But now, this understanding of the world is in its last stages of unraveling.

In nearly all states, guns are no longer unlawful to own and carry by default. In many, they are barely regulated. Recent Supreme Court Second Amendment decisions like New York State Rifle & Pistol Association v. Bruen serve only to hasten where state laws already were headed. For police, however, the harm guns can do exists irrespective of what the law has to say about the legality of carrying them. As a result, the nation’s gun laws are on a collision course with the practice and law of policing. This Article explores how the constitutional law governing policing is changing and will change in the face of gun legalization.

Part I of this Article explains the ubiquitous role guns play in the life of a police officer, and what actions guns lead police to take. Part II is about the legal doctrine of policing, both before and after firearm legalization. It details how the law shaped what police could do in order to protect themselves and others, and how that law is changing to accommodate legalization. Police now must operate in a terrain that increasingly is uncertain as to their lawful authority, and that in many instances may put them or others in jeopardy. Part III examines how the shifting laws of guns and policing might impact police behavior, likely resulting in ad hoc carve-outs for police authority that—if history is any guide—overwhelmingly will be imposed on Black and Brown communities.

The Supreme Court as Death Panel: The Necropolitics of Bruen and Dobbs

Mary Anne Franks

Two decisions in 2022, issued only a day apart, represent a dramatic and deadly escalation of the Supreme Court’s politicized jurisprudence. In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court declared that the Constitution has always protected a right to armed self-defense in public as well as in the home. In Dobbs v. Jackson Women’s Health Organization, it decreed that the Constitution has never protected a right against forced childbirth. What unites the two cases, beyond the radical political extremism displayed by the conservative Supreme Court majority, the indefensibly selective and incoherent use of history, and the broad rejection of longstanding precedent, is the full transformation of American constitutional law into what Achille Mbembe calls “necropolitics.” At the heart of the Bruen and Dobbs decisions is nothing less than life and death, and specifically the question of who gets to decide who lives and who dies. Expanding the right to guns means expanding white men’s use of deadly force against women and racial minorities. Eliminating the right to abortion means leaving women at the mercy of the death, injury, and other suffering inflicted by forced childbirth. Taken together, the two cases demonstrate that the Supreme Court has embraced the use of the Constitution as a tool of racial patriarchy.

Strengthening the Law of Self-Defense After Bruen

Cynthia Lee

On June 22, 2022, the Supreme Court issued its opinion in New York State Rifle & Pistol Association v. Bruen, striking down New York’s over 100-year-old law requiring individuals seeking to carry a firearm concealed in public to show a special need for self-protection. Holding that New York’s law violated the Second Amendment, the Court rejected the means-end scrutiny that lower courts had previously used to determine whether firearms restrictions comported with the Second Amendment, explaining that the appropriate test for evaluating the constitutionality of a firearms restriction is whether it is consistent with the Second Amendment’s text and historical understanding. The plain text of the Second Amendment, however, does not explicitly say private citizens have a right to carry firearms in public. Instead of acknowledging this, the Court focused on the fact that the text of the Second Amendment draws no distinction between the possession of firearms in the home and the possession of firearms in public. The Court then proceeded to cherry pick which historical sources it found relevant, rejecting sources that supported upholding the New York law and finding persuasive only those that supported its conclusion that individuals have a Second Amendment right to carry firearms outside the home. One result of Bruen is that states now have fewer tools to limit the number of individuals who can lawfully carry a firearm in public.

To reduce gun violence in public, legislators can try to regulate firearms on the front end by limiting those who can carry firearms in public. Alternatively, legislators can try to regulate firearms on the back end by discouraging those who choose to carry in public from unjustifiably using their firearms to injure or kill others. Since Bruen limits “front-end” regulation, it is a particularly opportune time to explore the effectiveness of “back-end” regulation.

This Article argues that lawmakers should add reform of back-end laws to their arsenal of tools to deal with the epidemic of gun violence that afflicts our country. While a variety of laws can be amended to discourage the unjustifiable use of firearms, this Article focuses on just one body of law that is uniquely situated to discourage the unjustifiable use of firearms: the law of self-defense. Self-defense law is uniquely positioned to inform whether and when an individual chooses to use their firearm to threaten, injure, or kill another person in light of the Supreme Court’s declaration in Heller that self-defense is at the core of the Second Amendment. The Article examines a few ways the law of self-defense can be strengthened to discourage the unjustifiable use of firearms in public.

Is Bruen Constitutional? On the Methodology that Saved Most Gun Licensing

Adam M. Samaha

Last Term, the U.S. Supreme Court decided a significant Second Amendment case after more than a decade of waiting. The Court’s majority coalition attempted to prevent judges from using deferential means-ends scrutiny and redirect their attention to enacted text, old examples, and analogies thereto. Yet the Court condemned outlier “may-issue” firearm licensing and, at the same time, preserved popular “shall-issue” licensing. That split result seems incompatible with some of the majority’s surface-level methodological commitments. Actually, to craft its holding, the majority deployed a wider range of considerations than text, history, and analogy, even apart from any extra-legal policy preferences that might have mattered. Such methodological inclusiveness is typical in modern constitutional adjudication, of course. But this case raises hard questions about which of the apparently legal considerations used to decide constitutional cases are themselves “constitutional” and which are not, along with how to understand the relationship between them. Perhaps “constitutional considerations” are so inclusive as to not be so special, or else “non-constitutional considerations” are no less supreme than their companions. Dilemmas appear either way, and for us all.

Implementing the Right to Keep and Bear Arms After Bruen

Eugene Volokh

For a wide range of individual rights, the government can justify certain restrictions on the right in at least four kinds of ways: (1) by showing that the restriction is outside the scope of the right, as defined by text, original meaning, and other factors; (2) by showing that it only modestly burdens the exercise of the right; (3) by showing that it serves sufficiently strong countervailing government interests; or (4) by showing that the government has special power as proprietor when it comes to behavior that uses its property.

Bruen rejected countervailing-government-interests arguments for the Second Amendment, and focused on scope arguments. But it also seemed to endorse some kinds of modest burden arguments, and didn’t foreclose the possibility of government-as-proprietor arguments. This Article discusses these matters broadly, and also applies the analysis to various particular kinds of gun restrictions


Admitting Evidence of Climate Change Under Daubert: Climate Experts as Reliable, Hyper-Qualified Technicians

Edmund H.S. Brose

Climate change is here. Anthropogenic warming is currently increasing temperatures, the devastation of storms, and the incidence of droughts. If humanity continues on its current path, the next fifty years will see millions die due to extreme weather events, along with a drastic increase in the number of climate refugees seeking haven. In the face of this crisis, government inaction at all levels has fueled the flames. Private actors and state and municipal governments have stepped into the breach, bringing suits against polluters for the harms to their localities and citizens. The challenge that this Note seeks to address is how to take these dire predictions of the future, and damages of the present, and translate them into workable, reliable legal evidence that can be used in a court of law. While most courts have declined to allow suits to proceed on threshold questions, they will soon have to deal with scientific evidence of climate change as these suits grow more numerous and the plaintiffs more resourceful.

This Note serves as a plea to judges to approach climate modeling methods in the same way they approach comparable types of evidence. Under Federal Rule of Evidence 702, climate science should be admissible as sufficiently reliable, by a preponderance of the evidence. Climate science exists somewhere between pure science and specialized expert knowledge, due to the subjective nature of the discipline. While climate science may not be seen as sufficiently “scientific,” if climate scientists are considered a group of experts, the discipline should easily pass muster under lower court interpretations of the Supreme Court’s Kumho Tire decision. By comparing climate science to criminal forensic methods, the case for admissibility becomes obvious. Thus, if judges take their roles seriously as neutral, consistent referees of justice, the admissibility of climate science should not be a serious hurdle for plaintiffs.

Originalism and the Problem of General Law

Giancarlo F. Carozza

In the early days of our Republic, federal judges explicitly relied on general law—an unwritten set of gap-filling principles—to drive their decisions. This practice ceased after Erie Railroad Co. v. Tompkins, in which the Supreme Court formally abandoned the concept of general law. But the current Supreme Court, with its emphasis on originalism, has revived general law by interpreting several constitutional provisions as codifying the general law of the Founders. To determine the content of the Founders’ general law, it conducts an inchoate version of the general law analyses of the past: It surveys a large corpus of legal and historical sources from multiple jurisdictions, none of which are authoritative, and from them distills a general principle which provides the rule of decision in the case at hand. The Court’s sub-silentio adoption of the general law analytic method is troubling for originalists and non-originalists alike.

This Note has three basic aims, all of which are novel contributions. First, it delineates the precise methodology used by seventeenth- and eighteenth-century judges to determine the content of the general law. Second, through careful study of Second Amendment and Confrontation Clause jurisprudence, it recognizes the deep similarities between the historical and modern originalist general law analytic processes. And third, it outlines the practical difficulties and internal tensions that arise from the Court’s originalist revival of general law.

The Public Plastic Nuisance: Life in Plastic, Not So Fantastic

Connor J. Fraser

Plastic pollution is a pervasive and growing problem. Plastic products pose significant risks to public health and the environment throughout their lifecycle—from production and consumption to disposal or recycling. In response, the Earth Island Institute, a California-based non-profit environmental group, filed a novel lawsuit in 2020. Earth Island alleges that several major plastic product producers created a public nuisance with their products in California. While Earth Island’s case is still pending, it represents the frontier of using public nuisance law to address mass harms.

Drawing on lessons from public nuisance cases against the opioids industry and fossil fuel producers, this Note comprehensively considers how public nuisance liability for plastic pollution would work in theory and in practice. Two possible framings of today’s “public plastic nuisance” are the negative effects of plastic pollution on (1) public waterways and lands and (2) the public’s access to clean air and water. Both framings are consistent with historical and traditional conceptions of public nuisance law. This Note explains how public nuisance claims based on these framings would be viable in another state facing the widespread effects of plastic pollution: New York.

In the absence of comprehensive regulation of plastic products throughout their lifecycle, public and private litigants both can and should use the “public plastic nuisance” theory. Litigation offers an avenue for holding the plastic industry accountable for pollution related to their products. Moreover, the prospect of public nuisance liability could pressure the plastic industry to change its business practices for the benefit of public health and the environment. Earth Island’s case should therefore provide a roadmap and foundation for future plastics litigation.

A Turn to Process: Partisan Gerrymandering Post-Rucho

Deven Kirschenbaum

For nearly sixty years, litigants have challenged congressional and state redistricting maps, raising claims of partisan gerrymandering. Each time, the Supreme Court would hear and reject the challenge but continued to entertain the possibility that a claim of partisan gerrymandering could succeed. Then, in 2019, the Court in Rucho v. Common Cause took the dramatic step of holding that claims of partisan gerrymandering were nonjusticiable political questions. This both walked federal courts out of the picture and signaled the Court’s tacit approval of gerrymandering. The decision came down at a time when gerrymandering was at an all-time high—in 2020, only 7.5% of the seats in the House of Representatives were “competitive.” Now, despite clear attempts by lawmakers to subvert democracy through partisan gerrymandering, federal courts can no longer police district maps for partisan imbalance. Though some states have created independent redistricting commissions to draw district maps, these commissions are neither common enough nor strong enough to withstand political tendencies to gerrymander.

Time and time again, litigants and scholars have searched for (and failed to find) a substantive standard by which partisan gerrymandering claims might succeed. This Note offers a new approach, grounded in classic legal principles: process instead of substance. Identifying both normative reasons for why process can better protect against partisan gerrymandering and highlighting instances in certain states where bolstering and, crucially, enforcing the processes by which district maps are drawn has helped mitigate gerrymandering, this Note argues that states (and litigants) should turn to process-based arguments to counter gerrymandered maps. Through process, states can strengthen their redistricting procedures and commissions, allowing for the creation of more balanced, competitive maps. Democracy hinges on competitive elections, and we need solutions to the problem of partisan gerrymandering; this Note offers a new framing of the problem and a path forward.

How the Courts Can Improve State and Local Elections with the Single Transferable Vote

Aidan F.T. Langston

Unlike in most other industrialized democracies, in the United States, most elections—at the federal, state, and local levels—are conducted using the plurality voting system, also known as first-past-the-post (FPTP) voting. As a number of scholars and advocates have argued, there is an alternative voting system, well suited to American democratic traditions, that would provide for proportional representation: the single transferable vote (STV). This Note focuses primarily on state and local elections, arguing that the courts should both endorse the use of STV in these elections as constitutional and adopt STV in state and local elections as a remedy for a variety of legal harms.

The Jurisdiction-Stripping Consent Decree: A Practical Tool Towards Police Abolition

Devin J. McCowan

A person is killed by law enforcement. There’s outrage. Hurt communities cry for reform. Things change on the margin. People move on. And the story repeats.

Every year, hundreds of individuals die at the hands of police officers despite repeated attempts at reform. This senseless cycle has caused many to question the efficacy of reform in favor of a more revolutionary proposal—police abolition.

Police abolition is a worthy and necessary ambition, but one that needs practical steps to achieve it. To that end, this Note excavates the history of failed attempts at police reform and finds a nugget of hope among the wreckage—The Jurisdiction-Stripping Consent Decree.

The Jurisdiction Stripping Consent Decree reimagines police litigation through the lens of abolitionism by using existing tools at the disposal of the Department of Justice to force police departments to reduce their domain of power in society through court-enforced consent decrees.

By engaging in radical civil rights litigation through non-reformist reforms of police departments’ most invidious abuses, the Jurisdiction-Stripping Consent Decree can put America on a viable path towards police abolition.

If Wheels Could Talk: Fourth Amendment Protections Against Police Access to Automobile Data

Nicole Mo

The relationship between policing and automobiles is long and complicated. Law enforcement’s ability to stop and search a vehicle comprises a distinct line of Fourth Amendment jurisprudence. But searching a vehicle no longer means what it did even twenty years ago. Today, automobiles collect data on us from when we open the car door to the moment we turn off the engine. Much of this information is retained in an automobile’s hardware and funneled to third party companies, who can share at their discretion. Law enforcement agencies have made use of auto data, obtaining it without a warrant both by extracting auto data from the vehicle itself and by contacting the companies collecting the data firsthand to ask that they share the information. The constitutionality of such a practice may seem up for debate, given the disagreements among lower courts over how auto data fits into a larger web of Fourth Amendment jurisprudence. This Note brings together two strands of Fourth Amendment case law—the automobile exception and the third-party doctrine—and argues that an animating principle motivating the Supreme Court’s recent digital search cases provides a clear answer to the auto data confusion: Police need a warrant before they can access auto data, because auto data, much like cellphones and cell site location information, reveals automatically collected diaristic information.

Administrative Feasibility Redux: A Reexamination of the Heightened Ascertainability Requirement for Class Certification

Zachary L. Sanders

Under Rule 23(a) of the Federal Rules of Civil Procedure, a class action must meet four requirements before it can be certified: numerosity, commonality, typicality, and adequacy of representation. But courts infer an antecedent requirement to these four—that of ascertainability, the idea that the court must be able to define the class as an entity that exists prior to allowing it to litigate on behalf of absent parties. While the idea behind this requirement is uncontroversial (surely, a court should ensure that a class exists prior to certifying one), the Third Circuit has staked out an unusually stringent, atextual position, requiring that a putative class present an “administratively feasible” method for identifying its members prior to certification. That requirement, nowhere present in the text or purpose of Rule 23, presents a near-insurmountable barrier to small-dollar consumer class actions, thus undermining the intent of Rule 23 to ensure that such claims can be pursued. Despite predictions that the Third Circuit would back down from its position, and despite at least five circuits’ explicit rejection of the heightened ascertainability requirement, the Supreme Court has yet to weigh in on this glaring rift in class action jurisprudence. After the Eleventh Circuit’s 2021 rejection of the heightened requirement, the time is ripe to once again ask whether this outlier position is defensible.

By examining dozens of cases that apply the ascertainability standard, both within and without circuits that endorse the heightened requirement, this Note affirms that ascertainability in its current form is a scattershot cudgel that undermines small-dollar consumer class actions. Across several factors newly identified by this Note that figure prominently in ascertainability analyses, the requirement adds nothing but inconsistency to the class certification analysis. This Note endorses the position that, absent Supreme Court intervention, an amendment to Rule 23 clarifying that the class must merely be defined objectively would both rectify the circuit split and restore the Rule 23 inquiry to its textual and policy roots: to ensure that small-dollar claims, too little in value to pursue independently but no less meritorious, can be maintained.