The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Thomas's majority opinion in New York State Rifle & Pistol Association v. Bruen may be the most important originalist opinion of all time. Its significance surpasses Heller, Crawford, and any other decision that came before it. Rather than trying to cram originalism into pre-existing standards–such as the tiers of scrutiny or a two-step test–Thomas starts from first principles. He employs originalist analogical reasoning. The Court instructs lower courts to determine the validity of a modern-day gun restriction by considering analogous restrictions in the past. But this mode of reasoning is weighted against the government, and follows a presumption of liberty. The state has the burden to justify that its restriction has historical analogues. And more importantly, the government cannot rely on sparse or attenuated historical analogues to meet its burden. Even if the evidence is at equipoise, the tie goes to freedom.
The majority opinion in Bruen methodically walks through this framework, illustrating how to apply it in different contexts.
First, the court must determine if a modern-day regulation is "relevantly similar" to some historical regulations.
Much like we use history to determine which modern "arms" are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are "relevantly similar." C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741 (1993).
Second, Thomas highlights two questions that can be used to perform this analogical reasoning:
While we do not now provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment, we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen's right to armed self-defense. As we stated in Heller and repeated in McDonald, "individual self-defense is 'the central component' of the Second Amendment right." Therefore, whether modern and historical regulations impose a comparable burden on the right of armed self-defense [i.e., the how] and whether that burden is comparably justified [i.e., the why] are "'central'" considerations when engaging in an analogical inquiry. McDonald.
Third, in Footnote 7, Justice Thomas clarifies that the originalist analogical inquiry is distinct from means-ends scrutiny:
This does not mean that courts may engage in independent means-end scrutiny under the guise of an analogical inquiry. Again, the Second Amendment is the "product of an interest balancing by the people," not the evolving product of federal judges. Analogical reasoning requires judges to apply faithfully the balance struck by the founding generation to modern circumstances, and contrary to the dissent's assertion, there is nothing "[i]roni[c]" about that undertaking. It is not an invitation to revise that balance through means-end scrutiny.
Fourth, the Court explains how similar the modern regulation must be to the historical analogues:
To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not "uphold every modern law that remotely resembles a historical analogue," because doing so "risk[s] endorsing outliers that our ancestors would never have accepted." Drummond v. Robinson (CA3 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.
Fifth, as an example, the Court justifies the "sensitive places" analysis from Heller:
Consider, for example, Heller's discussion of "longstanding" "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." Although the historical record yields relatively few 18th- and 19th-century "sensitive places" where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. See D. Kopel & J. Greenlee, The "Sensitive Places" Doctrine, 13 Charleston L. Rev. 205, 229–236 (2018); see also Brief for Independent Institute as Amicus Curiae. We therefore can assume it settled that these locations were "sensitive places" where arms carrying could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of "sensitive places" to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.
Sixth, the Court places the burden squarely on the government.
To support that claim, the burden falls on respondents to show that New York's proper-cause requirement is consistent with this Nation's historical tradition of firearm regulation. Only if respondents carry that burden can they show that the pre-existing right codified in the Second Amendment, and made applicable to the States through the Fourteenth, does not protect petitioners' proposed course of conduct.
And the Court will not do the government's homework:
Of course, we are not obliged to sift the historical materials for evidence to sustain New York's statute. That is respondents' burden. Nevertheless, we think a short review of the public discourse surrounding Reconstruction is useful in demonstrating how public carry for self-defense remained a central component of the protection that the Fourteenth Amendment secured for all citizens.
The individual seeking to vindicate his Second Amendment right does not have the burden. And in this case, New York failed to meet that burden.
We conclude that respondents have failed to meet their burden to identify an American tradition justifying New York's proper-cause requirement. Under Heller's text-and-history standard, the proper-cause requirement is therefore unconstitutional. . . .
At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State's proper-cause requirement.
In constitutional litigation, the assignment of the burden is perhaps the most important choice a court will make. I explored this theme in my article, The Burden of Judging in the NYU Journal of Law & Liberty: "Instead of chiseling out the so-called tiers of scrutiny, accounting for these burdens serves as a more accurate descriptor of the manner in which governments and individuals have their constitutional rights either vindicated or vitiated."
Seventh, the government needs to point to more than some isolated historical analogues to support a restriction. The evidence must be substantial. And if the record is at equipoise, the presumption of liberty breaks the tie.
For example, there is some doubt about how best to read the record in Sir John Knight's Case. In that case, the Court favors the reading that protects a right to keep and bear arms.
The dissent discounts Sir John Knight's Case, because it only "arguably" supports the view that an evil-intent requirement attached to the Statute of Northampton by the late 1600s and early 1700s. But again, because the Second Amendment's bare text covers petitioners' public carry, the respondents here shoulder the burden of demonstrating that New York's proper-cause requirement is consistent with the Second Amendment's text and historical scope. To the extent there are multiple plausible interpretations of Sir John Knight's Case, we will favor the one that is more consistent with the Second Amendment's command.
There was also some debate about how to understand the surety laws. Given that conflicting record, the tie goes to freedom.
The dissent speculates that the absence of recorded cases involving surety laws may simply "show that these laws were normally followed." Perhaps. But again, the burden rests with the government to establish the relevant tradition of regulation, and, given all of the other features of surety laws that make them poor analogues to New York's proper-cause standard, we consider the barren record of enforcement to be simply one additional reason to discount their relevance.
These seven principles effect a foundational shift in how courts should decide Second Amendment cases. To understand why this shift is so significant, it is helpful to review how the lower courts have decided cases in the exact opposite fashion. Consider United States v. Skoien, an en banc decision from the Seventh Circuit. Judge Easterbrook wrote the majority opinion in 2010. He expressly rejected the need to find a close analogue between a modern-day restriction on guns and framing-era restrictions of arms:
So although the Justices have not established that any particular statute is valid, we do take from Heller the message that exclusions need not mirror limits that were on the books in 1791.
And at every juncture, Easterbrook placed the burden on the defendant to justify the unreasonableness of the law. Indeed, the court supplied additional evidence that the government did not cite to defend the law. Judge Sykes dissented. She faulted the majority for giving the government a "decisive assist."
This approach fell far short of the legal heavy lifting normally required to justify criminally punishing the exercise of an enumerated constitutional right. . . . When it comes to applying this standard, they give the government a decisive assist; most of the empirical data cited to sustain § 922(g)(9) has been supplied by the court. This is an odd way to put the government to its burden of justifying a law that prohibits the exercise of a constitutional right. With respect, I cannot join the en banc opinion. The court declines to be explicit about its decision method, sends doctrinal signals that confuse rather than clarify, and develops its own record to support the government's application of § 922(g)(9) to this defendant.
Easterbrook's approach to judging has predominated across the circuits. Many judges have followed Easterbrook's lead. They used loose reasoning, and always gave the benefit of the doubt to the government. I wrote about Skoien way back in 2013, yet the precedent has survived. Indeed, I don't know if there is any Judge who more flagrantly dared the Supreme Court to reverse him on guns than Easterbrook. No more. Put a red flag on Skoien.
Under the approach in Bruen, courts are required to use tight analogical reasoning between a modern restriction and history, and if there is any doubt, the tie goes to freedom.
Still, there is a single paragraph in Justice Thomas's majority opinion that could undermine–even ruin–Bruen:
While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach. The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution—and a Second Amendment—"intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." McCulloch v. Maryland (1819). Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.
It will be very easy for the Ninth Circuit to deem mass shootings an "unprecedented societal concerns" or designate so-called assault weapons as the byproducts of "dramatic technological change." These two categories, buttressed by the original Heller discussion of "sensitive places" and "dangerous and unusual weapons," will provide judges with an escape hatch from analogical reasoning. Plus, combined with the limitations from Justice Kavanaugh's concurrence–much more on that concurrence later–the Ninth Circuit will have everything it needs to keep business as usual. If I had to guess, Justice Kavanaugh proposed this paragraph. If ever the price of the fifth vote, as the saying goes.