This past June, the Supreme Court held that the Second Amendment protects the right to carry firearms in public, striking down a New York statute that left that right at the mercy of government bureaucrats. The decision was obviously important, but its practical significance will depend on what restrictions governments are permitted to place on the exercise of the right. The Court issued new guidance on this question, which unfortunately will be extremely difficult for lower courts to apply in a principled manner. We offer a more workable approach.
The Constitution’s Second Amendment, which was adopted in 1791, provides: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Until 2008, the Supreme Court said almost nothing about the meaning of this provision. That year, the Court decided for the first time that the Amendment protects an individual right rather than a right of the state governments to maintain militia organizations. This 5-4 decision, known as Heller, was also the first Supreme Court case to invalidate an infringement of the right, in this case, a federal regulation banning civilians from keeping a handgun at home in the District of Columbia. Two years later, the Court invalidated a similar ban enacted under state law in Illinois.
The majority opinion in Heller had its weaknesses. The Court, for example, approved several popular gun control measures without explaining why; and it refrained from offering any clear guidance about how to analyze the constitutionality of other regulations. Over the next fourteen years, the lower federal courts exploited ambiguities in Heller to adopt a legal test that allowed them to rubberstamp legislatures’ choices. Almost every challenged regulation was upheld.
In its 6-3 Bruen decision this past June, the Court invalidated a New York law that forbade Americans to carry a firearm in public unless they could persuade a government official that they had been subjected to some extraordinary threat to their personal safety. This was an easy case on originalist grounds. At the time, as now, “to bear” meant “to carry.” The New York law infringed the right by making its exercise entirely dependent on whether a bureaucrat thought the citizen had a good enough reason to be armed. A constitutional right subject to a bureaucrat’s veto is no right at all.
Had the Court stopped there, this vindication of the right to bear arms would have been significant. But the justices went further. They expressly repudiated more than a decade of decisions by the lower courts that the Court regarded as excessively deferential to legislatures’ judgments. Bruen announced a new legal test:
When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
The Court specified that a restriction of gun rights may be upheld only if the government affirmatively proves it is part of a historical tradition consistent with the Second Amendment’s original meaning. Requiring courts to rely solely on history in this way is meant to prevent judges who dislike the right to keep and bear arms from overriding the original meaning of the Constitution.
We sympathize with the majority. In Bruen, the Court was responding to a very real problem in the lower courts. But Bruen’s new legal test is ill-suited to the task. Except for disarmament laws aimed at politically suspect minorities such as Indians, blacks, Catholics, and suspected British loyalists who refused to sign loyalty oaths, there were almost no legal restrictions during the founding era on keeping or bearing weapons, as distinct from misusing them. And such regulations were uncommon before the mid-nineteenth century. To evaluate modern gun control laws, lower court judges have now been given the unenviable task of looking for analogous regulations in a historical record that consists largely of empty pages.
We are confident that lower courts will uphold some modern gun laws that lack a legitimate historical analogy. Heller already approved some of them, and Bruen left those approvals undisturbed. Indeed, Bruen itself approved of laws in 43 states that grant concealed-carry licenses to any adult who can meet objective criteria such as passing a background check and taking a handgun safety class. Yet the justices provided no evidence of a historical tradition or historical analogues of such regulations, the first of which was apparently adopted in 1961. Not only was this long after the Second Amendment was ratified, but it was also long after New York and other states adopted regulations like the one struck down in Bruen. As in Heller, the Court did little more than declare its approval without any historical analysis.
Because of the felt imperative to uphold gun laws, we expect to see lower courts engaging in result-oriented manipulation of history. Bruen itself did so when it reaffirmed Heller’s approval of bans on guns in “sensitive places.” But there was no tradition of such bans in America during the Founding Era. Bruen defended Heller’s pronouncement by alluding to a couple of narrow laws, one from a seventeenth-century colony and one from a 1776 state constitution. If that’s all it takes to construct a historical tradition, we can expect to see some very creative analogizing from judges who don’t value the right to bear arms or the original meaning of the Constitution.
A panel of the US Court of Appeals for the Third Circuit has already shown how manipulable the new test is. Before Bruen, that court had found that the federal ban on possession of firearms by felons could not constitutionally be applied to two individuals who had been convicted of nonviolent crimes. Now, in an ironic twist, the same court has invoked Bruen to uphold a law disarming someone convicted of welfare fraud. Why? Because of an inapt analogy to early American laws disarming free blacks, American Indians, Catholics, and British loyalists. So much for the use of history and tradition to constrain judges who don’t care to be constrained.
This decision will be reviewed by the full Third Circuit and may be overturned. But historical analogies will frequently provide insufficient guidance, particularly for novel gun control laws that address modern problems. Looking at whether individuals could have knives and guns on eighteenth-century ships, for instance, does not provide a persuasive reason either to uphold or invalidate a modern regulation prohibiting weapons on commercial aircraft. That law is designed to prevent aircraft hijackings, a danger quite unlike the threat of mutinies in previous centuries.
What’s the alternative? Rather than relying on specious historical traditions, courts could evaluate gun laws against the purpose of protecting the right to keep and bear arms: facilitating the exercise of the fundamental right of personal and collective self-defense. In particular, judges could require the government to prove that a challenged restriction of the right to keep or bear arms does not vitiate the ability of Americans to use firearms to defend themselves against violent threats that the government cannot or will not prevent. In this way, judges can distinguish regulations that reasonably regulate this fundamental right from those that unreasonably obstruct it.
Thus, for example, Justice Samuel Alito suggested at the oral argument in Bruen that banning guns in sensitive buildings protected by magnetometers and armed guards might be justified because the burden on the right of self-defense is more than offset by the protective measures that have been put in place. The same goes for the strict regulations that apply to modern air travel, given the special vulnerability of passengers and crew to the demonstrated threat of armed hijacking or worse. In both cases, the government has created conditions that greatly lessen, if not eliminate, the need for personal self-defense. But such assurances are rarely within the power of government to provide absent the sort of Herculean effort associated with the tightly controlled environments such as airports, prisons, and courthouses.
Defining “sensitive places” to include extensive public areas, as New York did after Bruen was decided, would not be justifiable. Even if the government believes public safety would be enhanced by effectively nullifying the right to bear arms, the power to appropriately regulate the exercise of a constitutional right is not the power to destroy it.
Requiring the government to establish that the fundamental right of self-defense is not vitiated by a proposed regulation would not mechanically answer every legal issue. But by looking to the purpose of the Second Amendment, it asks the right question. Such a test appropriately puts a heavy burden on the government to justify regulations of the constitutional right to arms—a burden that must be met by evidence, not speculation. We doubt that a majority of justices would overturn a lower court decision that held a gun restriction unconstitutional on this basis rather than by a failure to find a historical analogue.
In the end, the only truly reliable way to prevent judges from undermining any constitutional right is to develop a judicial consensus that the right is worth robust protection. A strong consensus about the value of free speech is reflected in our First Amendment case law, and it is long past time to nurture a similar attitude toward the Second Amendment. That would require the Court to do a lot more than reach the correct result in easy cases like Bruen.
This essay draws on Nelson Lund, Bruen’s Preliminary Preservation of the Second Amendment, 23 Federalist Society Review 279 (2022).