Volume 98 Symposium

Gun Rights and Regulation After Bruen

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

“Will the Meaning of the Second Amendment Change . . . ?”: Party Presentation and Stare Decisis in Text-and-History Cases

Haley N. Proctor

In the wake of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, more Second Amendment challenges will turn on courts’ answers to factual questions about history—answers courts may formulate based on the historical evidence compiled by the parties to the dispute. These answers will become precedents that tell us what types of regulations the Second Amendment does and does not permit. What happens to those precedents when new historical evidence comes to light? This Essay argues that the Court should be willing to revisit its precedents when historical evidence demonstrates error in an earlier decision. Revisiting erroneous precedents coheres with the Bruen Court’s theory of constitutional meaning, and it answers the dissent’s concern about the imperfect nature of the historical inquiry that occurs in litigation.

“A Map Is Not the Territory”: The Theory and Future of Sensitive Places Doctrine

Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

In the wake of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, courts are now confronted with new questions about where guns can be restricted and what justifications support those regulations. This Essay urges that the development of the doctrine governing location-based prohibitions should focus as much on the why as the where. Instead of simply isolating each location and considering the historical pedigree of gun restrictions in that place, judges should evaluate the reasons behind the sensitive places doctrine itself. We aim to recenter these first order questions to avoid haphazard doctrinal development that threatens to leave Second Amendment law incoherent and unpredictable.

Judges developing the doctrine will need to avoid several hazards. Among them: pitching historical analogies too narrowly, neglecting sensitive location mobility, and excessively focusing on locational features rather than regulatory justifications. Whatever values ultimately underpin the doctrine, they should direct the shape of location-based challenges. Whether the doctrine is grounded in safeguarding the exercise of other constitutional rights, protecting the vulnerability of specific populations, recognizing the inhibited judgment or discretion of those gathered, or other values altogether, this Essay shows why justificatory and constitutional foundations must be set before the doctrinal structure is completely built.

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