The Volokh Conspiracy
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Second Amendment Roundup: Bruen Was Right
Joel Alicea’s defense of originalism demonstrates broad applicability of the text-history method.
J. Joel Alicea, "Bruen Was Right," 174 U. Pa. L. Rev. (forthcoming 2025), sets forth a comprehensive defense of the text-history approach and rejection of means-scrutiny set forth in Justice Clarance Thomas' opinion in Bruen. A professor at the Columbus School of Law, Alicea is the director of the Center for the Constitution and the Catholic Intellectual Tradition.
Some scholars argue that Bruen was a mistake. An exception Alicea cites is William Baude & Robert Leider, "The General-Law Right to Bear Arms," 99 Notre Dame L. Rev. 1465 (2024). My own humble defense of Bruen is set forth in "Text and History, Means-Ends Scrutiny, and the Second Amendment," 24 Fed. Soc. Rev. 54 (2023). Alicea's article deserves a deep read about which I can only skim the surface here.
As Alicea explains, the larger significance of Bruen "is in its rejection of tests like strict or intermediate scrutiny that have loomed large in rights jurisprudence since the 1960s. In their place, Bruen substituted a text-and-history-based test for evaluating the constitutionality of arms regulations that, if successful in the Second Amendment domain, holds out the prospect of displacing the tiers of scrutiny and other judicial balancing tests elsewhere in constitutional law." But if this "most thoroughgoing attempt by the Court to do originalism in the area of constitutional rights" fails, "it calls into question originalism's capacity to transition from a critical posture to a governing one, at least in the rights space."
Before outlining the article, I'll mention two cases citing Alicea about which readers may already be familiar. In NRA v. Bondi (11th Cir. 2025) (en banc), Chief Judge William Pryor sought to justify Florida's law subjecting persons aged 18 to 20 to imprisonment for purchase of a firearm based on this supposed analogue: "Founding-era law precluded individuals under the age of 21 from purchasing arms because they lacked cash and the capacity to contract."
But Alicea added to the above quote: "That being said, … I have not come across evidence of a principle that was generally held to be part of the Second Amendment right but that failed to make its way into some form of positive law." In fact, neither the common law nor Founding-era statutory law made it a crime for a minor to buy a firearm, and indeed the Militia Act of 1792 required every male citizen 18 and over to "provide himself with a good musket or firelock." By relying on civil laws involving the capacity to contract, Chief Judge Pryor "view[ed] a tradition at too high a level of generality," as Alicea would say. Bruen's Footnote 11 cautions against this type of reasoning when it said "[t]o the extent there are multiple plausible interpretations of [the scope of our Second Amendment rights], we will favor the one that is more consistent with the Second Amendment's command."
Alicea was more appropriately cited by Judge Ryan Nelson, dissenting in Duncan v. Bonta (9th Cir. 2025). As I explained in a post, the majority upheld California's ban on possession of a magazine holding over ten rounds on the basis that a magazine is a mere "accessory," not an "arm" under the Second Amendment's text, and that plaintiffs had not shown that such magazines are in "common use" under Bruen's Step One, the textual analysis. But as Judge Nelson cites Alicea as clarifying, "Conducting the common-use inquiry at the first step 'would be at odds with the fact that the common-use test is not about the semantic meaning of the Second Amendment's plain text.'"
That's a good lead in to Alicea's analysis of Bruen's Step One, the textual analysis, which first asks whether the persons are part of "the people," whether handguns (or magazines, in Duncan) are "arms," and whether carrying handguns for self-defense in public constitutes "bearing arms." Second, Bruen assumes that Heller conducted all of the historical work at Step One. Third, Step One covers whether the Second Amendment is implicated (similar to asking whether "speech" is being regulated under the First Amendment). And fourth, if successful under Step One, the burden shifts to the government to prove the constitutionality of the restriction.
A consequence of the above is that, "if the common-use test applies at Step Two, the government would have the burden of proving that an arm is not in common use, rather than the burden being on the challenger to prove that an arm is in common use." This becomes clearer under Bruen's analysis of the operative clause. "At Step One, it does not matter whether the person in question is a law-abiding citizen or a felon, whether the object in question is a handgun or a machine gun, or whether the conduct in question involves bearing an arm for self-defense or bearing an arm to commit a crime." One must go to Step Two to determine if there is a historical tradition of banning violent persons from gun possession, of prohibiting dangerous and unusual weapons, and of carrying arms for criminal purposes.
That leads to Step Two, the historical analysis, in which courts reason analogically to compare a modern restriction with the historical tradition of firearm regulation. This inquiry is originalist, but does not require the same historical law to justify the modern law, as long as consistent with the same principles. A good example of a historically-justified sensitive place is on board a commercial aircraft.
"Bruen's key move is to relocate who determines the appropriate means and end, largely taking this task away from judges and giving it back to the ratifiers." By contrast, under tiers of scrutiny, judges decide whether the state's interest is compelling and, for narrow tailoring, whether the means are proportional to the ends.
Alicea categorizes three principal criticisms of Bruen at Step Two. First is the Fallacy from Absence. Where there is historical silence, why should the state bear the burden to justify a restriction? For one thing, "putting the burden on the rights-claimant at Step Two would be asking the rights-claimant to prove a negative: that there was no historical limit on the right the claimant asserts." Moreover, the Second Amendment codifies a preexisting right, creating the presumption that the covered conduct is protected. Additionally, this is how other constitutional rights like speech are treated. "The difference is that Bruen—true to its originalist premises—requires historical support to overcome the presumption of unconstitutionality, whereas the tiers of scrutiny allow judicial moral and policy judgments to overcome the presumption."
Second is the Level-of-Generality Problem. This is presented in the "why" and the "how" of a historical tradition. In Rahimi, the majority decided that the surety and affray laws sufficed as analogues, while Justice Thomas in dissent thought they were at too high a level of generality.
Alicea distinguishes "substantive" from "incidental" features of the history, the former being the contours of the right understood at the Founding and the latter being facts that were not germane to those contours (e.g., that the supposed analogue and the modern law were both passed on a Tuesday). Whether an arm is dangerous and unusual or in common use is informed by the historical purposes of the right, including to enable citizens to bring arms kept at home for militia duty. "Thus, just as it is an error to incorporate incidental features into our description of a historical tradition, it is a mistake to efface substantive features in our description. The former occurs by viewing a tradition at too low a level of generality, while the latter occurs by viewing a tradition at too high a level of generality."
Third is the Administrability Problem. Some complain that the text-history approach is too difficult to administer, despite that that's what judges and lawyers typically do – they analyze the words of the Constitution and the original understanding thereof. Alicea suggests that it's too soon after Bruen was decided to make sweeping judgments about the precedent's viability. Some issues don't have a clear answer, such as the number of laws that make a tradition, but that's the case with other tests as well. As the Court resolves more cases under Bruen, uncertainty will diminish. Not to mention that "ideologically-divergent judging in highly controversial cases is not a phenomenon unique to Bruen."
Finally, Alicea analyzes Bruen's rival, tiers of scrutiny. First, without Bruen's historical approach, courts decide for themselves whether an interest is compelling. "But where does the positive law grant judges the authority to answer such political questions in the realm of constitutional adjudication, and when did the people decide to allocate that authority to judges?" Judges are able to manipulate outcomes by how they frame the questions.
Second, the same problem arises when judges determine whether a regulation is sufficiently tailored to achieve a government interest. Recall Justice Breyer's quip in McDonald v. Chicago about how judges must resolve complex empirical issues. Once again, judges shouldn't determine public policy.
And third, use of tiers of scrutiny allows judges to do the balancing. By contrast, Step One invokes the presumption of protection for conduct within the Second Amendment's original semantic meaning, and Step Two allows only restrictions with proper historical analogues. "It adds insult to injury for judges to first create a new legal standard without basis in democratically enacted positive law and craft a standard that grants broad authority to themselves to 'usurp[] the people's right to make major policy choices.'" (Quoting Justice Kavanaugh's Rahimi concurrence.)
Alicea concludes that if critics are right that Bruen is incoherent and manipulable, its failure will reinforce tiers of scrutiny in other areas of constitutional adjudication, reverting to the kind of judge-empowering interest-balancing inquiry that originated with the Warren Court. "The alternative future is one in which Bruen marks the end of one era of constitutional law and the advent of another, one in which history-based methodologies increasingly displace those created before the rise of modern originalism."
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The Court has now relisted two Second Amendment cases fifteen times, in this instance for its conference on Friday May 29. They include Ocean State Tactical v. Rhode Island, which concerns Rhode Island's magazine ban, and Snope v. Brown, which concerns Maryland's ban on semiautomatic rifles.
