In New York State Pistol & Rifle Ass’n v. Bruen, decided last June, the Supreme Court issued one of the most unusual and dangerous opinions in American history. Clarence Thomas’ majority opinion instructed lower court judges to rely exclusively on history and tradition to resolve Second Amendment cases and to completely ignore the government’s asserted safety interests in passing gun control laws. Assuming that a person’s conduct is arguably covered by the Second Amendment’s text, the Justices said, the government can only prevail if it demonstrates that similar laws were enacted in the past.
According to Second Amendment scholar Jake Charles in an excellent new article, since Bruen was decided last June, there have been over 100 state and federal cases challenging gun reform laws. These courts “have received Bruen’s message to supercharge the Second Amendment…. Their collective decisions in the months since the ruling have been scattered, unpredictable, and often internally inconsistent.”
The Court’s exclusive focus on history and tradition in Bruen is a radical departure from how the Court has traditionally decided constitutional law cases. Prior to Bruen, the Justices examined the strength and importance of a constitutional right and compared that to the interests put forward by the government to justify the restriction of that right.
Justice Thomas argued in Bruen that the tradition-and-history-only method has been employed by the justices in First Amendment speech cases, but that assertion is false. The Court consults history and tradition to determine at the outset whether a plaintiff’s conduct is speech or expression protected at all by the First Amendment. If so, however, the Court then balances the importance of the right against the public interest in the law using various levels of review depending on the type of restriction at issue. What the Court has not done in speech cases — or in almost any other constitutional challenge — is completely ignore the asserted rationale for the law at issue.
The Bruen majority’s exclusive reliance on history and tradition should not be confused with originalism in any of its many forms. Rather, Justice Thomas’ analysis is best seen as what Harvard Law Professor Noah Feldman calls “historicism.” According to Feldman, Bruen is “not genuine originalism. Drawing analogies between historical materials produced over hundreds of years and a contemporary case does not limit or constrain judges.” The lower courts are proving Feldman right.
A Mississippi federal judge facing a challenge to a longstanding federal ban on felons possessing guns was so frustrated that he asked the parties whether he should hire a professional historian to help him decide the case, candidly admitting that neither he nor the lawyers in the case were trained historians.
In a clear example of judicial abuse using the Bruen historical approach, the fifth circuit court of appeals recently struck down a federal law banning people who have been the subject of domestic violence restraining orders from owning guns. The defendant had a long history of violence and had threatened his girlfriend. The fifth circuit claimed it could not find historical analogs to the law because domestic violence was not deemed problematic by people living during the ratification period when wives had no separate legal existence from their husbands.
Another glaring example of lower court confusion is evident from the court decision invalidating major parts of a law New York passed after the Bruen majority struck down the state’s concealed carry regime. Part of that law prohibited guns in “sensitive places” such as Times Square, the subway, and summer camps. The judge struck down those sections of the law (among others) holding that there were no similar enough historical analogs under the Bruen approach though he did uphold bans on guns in schools, places of worship, and courthouses. The case is currently on appeal. The notion that the Second Amendment allows states to ban guns in schools but not summer camps, or in churches but not Broadway theaters, is absurd and dangerous.
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