Abstract

In June 2022, the Supreme Court struck down New York’s concealed carry licensing law on Second Amendment grounds. In that decision, New York State Rifle & Pistol Association v. Bruen, the Court declared that future Second Amendment challenges should be evaluated solely with reference to text, history, and tradition. By requiring historical precedent for any modern regulation, that test is essentially sui generis in the Court’s individual-rights jurisprudence. Yet it represents both an extension of an increasingly historically focused Supreme Court case law and a harbinger of potential doctrinal transformations in other domains.

This Article critically assesses Bruen’s test and, in the process, raises concerns about other areas of rights jurisprudence trending in ever more historically inflected directions. In critiquing Bruen’s method, the Article foregrounds the unsatisfying justifications for the novel test and several unworkable features. Centrally, it underscores how Bruen’s emphasis on historical silence imbues an absent past with more explanatory power than it can bear—or than the Court attempts to justify. The Article then synthesizes and analyzes the results from more than three hundred lower federal court decisions applying Bruen, which collectively reveal the test’s fundamental unworkability.

On top of that descriptive and critical work, the Article makes several prescriptive arguments about possible judicial and legislative responses to the decision. For judges, the Article endorses and amplifies arguments about the use of neutral historical experts appointed by courts, identifies ways that lower courts can usefully underline Bruen’s gaps and mitigate its open texture, and suggests that courts are justified in reading Bruen narrowly. For lawmakers, it argues that when legislatures pass new gun laws, they ought to be explicit about four types of evidence for the law’s constitutionality that track Bruen’s new demands: the purpose for the law, the expected burden on armed self-defense, the precise nature of the problem to which the law is directed, and the historical tradition from which the law springs.

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