The Volokh Conspiracy

Justice Thomas's majority opinion in Bruen provides a roadmap of how to use originalism based on analogical reasoning--that is, how to look at practices from prior to ratification of the Second Amendment. The Court also discusses, at some length, how to consider post-enactment practice. This issue has been subject to debate in originalist circles for some time. In Heller, for example, Justice Scalia considered gun restrictions that were enforced following the ratification of the Second Amendment. Justice Stevens criticized Scalia with a charge of hypocrisy: why would an originalist look at history that came after the Second Amendment's adoption? Scalia replied that originalists can rely on post-ratification history that confirms pre-ratification history. That confirmation suggests a continuity, in which the meaning of the text did not change over time. By contrast, post-ratification history is less useful if there was no continuity--that is, there was some later-in-time break in practice that suggested a shift in meaning.

In Noel Canning, Justices Breyer and Scalia disagreed about this point. Breyer suggested that post-ratification practice could potentially trump original meaning--at least where the text was ambiguous. Scalia, by contrast, rejected this "adverse possession" approach to constitutional law, in which the executive branch can aggrandize its power by violating the Constitution for long periods of time.

This debate has continued to simmer. Thankfully, Justice Thomas brought some clarity to the issue in Bruen.

Thomas explains that for originalists, "not all history is created equal."

We categorize these historical sources because, when it comes to interpreting the Constitution, not all history is created equal. "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them." Heller. The Second Amendment was adopted in 1791; the Fourteenth in 1868.

History that is too old may not be useful.

Historical evidence that long predates either date may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years. It is one thing for courts to "reac[h] back to the 14th century" for English practices that "prevailed up to the 'period immediately before and after the framing of the Constitution.' " Sprint Communications Co. v. APCC Services, Inc. (2008) (Roberts, C. J., dissenting). It is quite another to rely on an "ancient" practice that had become "obsolete in England at the time of the adoption of the Constitution" and never "was acted upon or accepted in the colonies." Dimick v. Schiedt (1935). . . . Sometimes, in interpreting our own Constitution, "it [is] better not to go too far back into antiquity for the best securities of our liberties," Funk v. United States (1933), unless evidence shows that medieval law survived to become our Founders' law. A long, unbroken line of common-law precedent stretching from Bracton to Blackstone is far more likely to be part of our law than a short-lived, 14th-century English practice.

Likewise, history that is too recent may also not be useful.

Similarly, we must also guard against giving postenactment history more weight than it can rightly bear. It is true that in Heller we reiterated that evidence of "how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century" represented a "critical tool of constitutional interpretation." We therefore examined "a variety of legal and other sources to determine the public understanding of [the Second Amendment] after its . . . ratification."

Next, Justice Thomas turns to a concept known as "liquidation." In some cases, post-enactment practice can settle the meaning of ambiguous texts. Here, the Court favorably cites Caleb Nelson and Will Baude, who have written on this topic.

And, in other contexts, we have explained that " 'a regular course of practice' can 'liquidate & settle the meaning of ' disputed or indeterminate 'terms & phrases' " in the Constitution. Chiafalo v. Washington (2020); see generally C. Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001); W. Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019). In other words, we recognize that "where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision." NLRB v. Noel Canning  (2014) (Scalia, J., concurring in judgment); see also Myers v. United States (1926); Printz v. United States (1997).

Still, Justice Thomas pour some cold water on liquidation. He relies on then-Circuit Judge Kavanaugh's opinion in Heller II:

But to the extent later history contradicts what the text says, the text controls. "'[L]iquidating' indeterminacies in written laws is far removed from expanding or altering them." Gamble v. United States, (2019) (Thomas, J., concurring); see also Letter from J. Madison to N. Trist (Dec. 1831), in 9 Writings of James Madison 477 (G. Hunt ed. 1910). Thus, "post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text."  Heller (Kavanaugh, J., dissenting); see also Espinoza v. Montana Dept. of Revenue (2020).

Thomas and Kavanaugh are emphatically correct. And here, the Court rejects Justice Breyer's approach to liquidation, in which later-in-time practice can overcome clear text. Once again, the new conservative Court is clearing the brush of non-originalist doctrine.

Justice Barrett wrote a concurrence in Bruen. She has some concerns about liquidation:

I join the Court's opinion in full. I write separately to highlight two methodological points that the Court does not resolve. First, the Court does not conclusively determine the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution. Scholars have proposed competing and potentially conflicting frameworks for this analysis, including liquidation, tradition, and precedent. See, e.g., Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519 (2003); McConnell, Time, Institutions, and Interpretation, 95 B. U. L. Rev. 1745 (2015). The limits on the permissible use of history may vary between these frameworks (and between different articulations of each one).

Like in Fulton, the former Professor pens a concurrence to raise some questions:

To name just a few unsettled questions: How long after ratification may subsequent practice illuminate original public meaning? Cf. McCulloch v. Maryland (1819) (citing practice "introduced at a very early period of our history"). What form must practice take to carry weight in constitutional analysis? See Myers v. United States (1926) (citing a "legislative exposition of the Constitution . . . acquiesced in for a long term of years"). And may practice settle the meaning of individual rights as well as structural provisions? See Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019) (canvassing arguments). The historical inquiry presented in this case does not require us to answer such questions, which might make a difference in another case.

In the Emoluments Clauses litigation, Seth Barrett Tillman and I discussed the  methodology to consider post-ratification history. I wrote about our approach in an essay for the South Texas Law Review, titled Defiance and Surrender. Here is an excerpt:

President Washington and other Founders who were his successors during the Early Republic openly received, accepted, and kept diplomatic gifts and other gifts from foreign governments and their officials without seeking or receiving congressional consent. These early presidents acted as if they were not bound by the Foreign Emoluments Clause.5 However, Presidents Jackson, Tyler, Van Buren, and Lincoln declined to personally accept foreign gifts. These later presidents, other scholars contend, acted as if they were bound the Foreign Emoluments Clause. Courts might take the intuitive position that because all presidents have equal authority, the latter presidents ought to be preferred. The Supreme Court has taught a different lesson: modern practice does not automatically overcome earlier precedents. There is an additional principle that informs this inquiry. When considering competing streams of historical practice by the three branches, courts favor purported defiance over voluntary surrender. Disputed assertions of power by Washington and his successors in the Early Republic are more probative about the scope of the Foreign Emoluments Clause than voluntary acquiescence by Jackson and post-Jackson presidencies.

Seth and I will discuss this issue at some length in Part III of our ten-part series. And we will address some of Barrett's questions, at least indirectly.

Bruen was a resounding triumph for originalism. But unlike Dobbs, Bruen will not lead to sweeping changes in gun laws nationwide. For starters, more than 40 states already employed some form of shall-issue carry. Depending on how you count, only 6 or 7 states will have to modify their regimes in the wake of Bruen. Much of the sturm und drang about Bruen is hyperbole.

And, no doubt, these states will try to push the boundaries of Bruen. Eugene already blogged about one such attempt from the California Attorney General. Here, I would like to flag the limits that Bruen identifies, as well as those recognized in the concurring opinions.

First, Footnote 9 of Justice Thomas's opinion blesses the 43-odd states that employ a "shall-issue regime."

To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States' "shall-issue" licensing regimes, under which "a general desire for self-defense is sufficient to obtain a [permit]." Drake v. Filko (CA3 2013) (Hardiman, J., dissenting). Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent "law-abiding, responsible citizens" from exercising their Second Amendment right to public carry. District of Columbia v. Heller (2008).

And Thomas endorses the regimes in states that require applicants to pass a "background check" or "a firearms safety course."

Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, "law-abiding, responsible citizens." And they likewise appear to contain only "narrow, objective, and definite standards" guiding licensing officials, Shuttlesworth v. Birmingham (1969), rather than requiring the "appraisal of facts, the exercise of judgment, and the formation of an opinion," Cantwell v. Connecticut (1940)—features that typify proper-cause standards like New York's.

Of course, some of these states go far, far beyond requiring "background check" or "firearms safety course." Presumably, these burdens on the right to bear arms would be permissible under the majority's understanding, because there is no "subjective" standard about a person's need for the firearm.

Still, the Court flagged some limits on shall-issue regimes:

That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.

How long is a "lengthy wait time"? Weeks? Months? Years? And how high is "exorbitant"? The District of Columbia, for example, imposes onerous requirements, high fees, excessively-long training classes, and many bureaucratic hoops. Litigation will no doubt test these issues. Randy Barnett wrote about his experiences in D.C. on SCOTUSBlog. (A petition is pending before the Court about D.C.'s carry law.)

Second, Justice Alito wrote a concurrence. He stressed that the Court only decided the narrow issue about carry permits. Other issues were not decided:

Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or McDonald v. Chicago (2010), about restrictions that may be imposed on the possession or carrying of guns.

Alito wrote this section in response to Breyer's litany of gun statistics. But in the process, he made clear that his opinion in McDonald stands, including the analysis about "longstanding prohibitions" and  "dangerous and unusual weapons." Do not expect Alito to be a lock on 922(g) cases, or challenges to assault weapon bans.

Third, we have Justice Kavanaugh's concurrence, which was joined by Chief Justice Roberts. Kavanaugh did not simply endorse"background checks" and "firearms safety course." He listed another criteria that "shall-issue" regimes can require:

By contrast, 43 States employ objective shall-issue licensing regimes. Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.

The requirement of a "mental health records check" was not at issue in this case. Yet, Kavanaugh reached out to decide that this requirement was constitutionally permissible. (More on Kavanaugh's reach in another post on Dobbs.)  I fear that this exception will be exploited by states to probe into a person's confidential medical history to deny carry licenses. Indeed, the California Attorney General's guidance specifically cited the Kavanaugh concurrence on this point:

Bruen recognizes that States may ensure that those carrying firearms in their jurisdiction are "'law-abiding, responsible citizens.'" See also id. (Kavanaugh, J., concurring) (States may "require a license applicant to undergo a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements"). Accordingly, in assessing whether an applicant has established "good moral character," issuing authorities should recognize that Bruen does not eliminate the duty or authority of local officials to protect the communities that they know best by ensuring that licenses are only issued to individuals who—by virtue of their character and temperament—can be trusted to abide by the law and otherwise ensure the safety of themselves and others. The investigation into whether an applicant satisfies the "good moral character" requirement should go beyond the determination of whether any "firearms prohibiting categories" apply, such as a mental health prohibition or prior felony conviction. 

Later, Kavanaugh refers to the "mental health records check" as an "objective licensing requirement." Far from it.

Likewise, the 6 States including New York potentially affected by today's decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue States.

Now, government bureaucrats who are hostile to guns will have vast discretion to abridge a person's constitutional right based on nebulous judgments about mental health. I have to think that Kavanaugh's dicta here was affected by the assassination attempt, in which a person with apparent mental health problems tried to kill the Justice.

Finally, Kavanaugh block-quotes the two paragraphs from Heller that the lower courts have treated as the only relevant portions of the case.

"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

"We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons." Heller; see also McDonald.

Kavanaugh, Roberts, and Alito went out of their way to reiterate these limitations.

I fear Bruen may prove to be more of a symbolic victory for many people in these six states. I hope it takes less than a decade for the Court to take up another Second Amendment case regarding the issues Alito expressly declined to decide: the types of weapons that are permissible and who may possess arms.

We are in the midst of Red Flag June. On three consecutive session days, the Court has reversed old doctrine--and in the process, placed red precedential flags on many decisions. On Thursday, Bruen red-flagged dozens circuit decisions that followed the two-step approach for Second Amendment cases. On Friday, Dobbs red-flagged Roe, Casey, and countless other abortion cases. And today, Monday, Kennedy v. Beremerton School District red-flagged Lemon v. Kurtzman, and decades of precedents that relied on the infamous test.

Justice Gorsuch's majority opinion does not overrule Lemon in so many words, but the import of the ruling is clear--follow Town of Greece, not Lemon.

What the District and the Ninth Circuit overlooked, however, is that the "shortcomings" associated with this "ambitiou[s]," abstract, and ahistorical approach to the Establishment Clause became so "apparent" that this Court long ago abandoned Lemon and its endorsement test offshoot. American Legion; see also Town of Greece v. Galloway (2014) . . . 

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by "'reference to historical practices and understandings.'" Town of Greece.

Justice Sotomayor's dissent states the issue directly:

Today's decision goes beyond merely misreading the record. The Court overrules Lemon v. Kurtzman, 403 U. S. 602 (1971), and calls into question decades of subsequent precedents that it deems "offshoot[s]" of that decision.

Finally, at long last, Lemon has been interred. It is fitting to quote from Justice Scalia's Lamb's Chapel concurrence:

As to the Court's invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision in Lee v. Weisman, conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e.g., Lynch v. Donnelly (1984). When we wish to strike down a practice it forbids, we invoke it, see, e. g., Aguilar v. Felton, (1985); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers (1983). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

Justice Gorsuch has stabbed the final pencil into the Lemon Test.

I have to imagine Justice Scalia is smiling from up high.

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.

If you have paid attention to Second Amendment litigation over the past decade, you have become familiar with the two-step framework. Under this framework, those challenging gun control laws usually prevail at step one, and lose at step two. The specifics are largely unimportant for the reasons that Judge VanDyke explained. And, over the past decade, there has been a mountain of scholarship that have endorsed the two-step test. During this time, the Supreme Court was asked over and over again to clarify the proper standard under Heller. And time and again, the answer was "cert denied."

Now, New York State Rifle & Pistol v. Bruen has bid farewell to the two-step test. And it did so very, very briskly:

In the years since, the Courts of Appeals have coalesced around a "two-step" framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach. . . .  Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment's text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

I haven't checked Westlaw, but this paragraph probably placed red flags on dozens of circuit court cases. And almost all Second Amendment scholarship that was premised on the two-factor test has now been vitiated.

The lower courts are going to scramble, and try to find language in the majority, and in Justice Kavanaugh's concurrence, to stick to their old ways. But it will be much tougher.

I would like to share an edited version of Dobbs v. Jackson Women's Health Organization, which I prepared for the 2022 Barnett/Blackman supplement. I distilled the 213-page decision down to about 50 pages. For the casebook, I'll probably whittle away another 10-15 pages. I need some time to digest the case some more, and decide what to keep and what to remove.

I found this case easier to edit than Bruen. For starters, both the majority and dissent had lengthy appendices, which padded the page count. Moreover, Bruen established an entire new framework for originalist decision-making. I erred on the side of over-inclusion. Dobbs, by contrast, mostly sparred over Casey. And the dissent played the same notes over and over and over and over again: what about Griswold, Lawrence, Obergefell? After a while, I started deleting those repetitive arguments.

Now that I've finished reading both opinions--nearly 350 pages in two days!--I can start to write about them. Stay tuned.