Volume 98, Number 6

December 2023

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