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Bruen is a Victory for the Second Amendment

Bruen, Carson v. Makin, and Dobbs are good not only in themselves, but for the courageous decision to roll back judicial overreach.

Justice Thomas Attends Forum On His 30 Year Supreme Court Legacy
Supreme Court Justice Clarence Thomas speaks at the Heritage Foundation on October 21, 2021 in Washington, D.C. (Photo by Drew Angerer/Getty Images)

The United States Supreme Court has issued another victory for liberty and the Constitution in its decision in New York State Rifle & Pistol Association, Inc. v. Bruen. The facts and holding of the case are important in themselves. The opinion also offers hope that the current Supreme Court is willing to take on hard issues, reestablish the original meaning of the law, and dismantle the activist precedent that has plagued our republic for nearly a century.

The Bruen case itself is straightforward. New York state law makes it a crime to carry a firearm without a license. To be approved for a license, the applicant must prove “proper cause,” which means he must “demonstrate a special need for self-protection distinguishable from that of the general community.” The petitioners in the case were denied licenses to carry firearms because they failed to show sufficient proper cause. As the Court points out, the primary purpose of the Second Amendment is to preserve the right of the people to keep and bear arms for self-defense. The New York law actually requires the applicant to prove a special need for self-protection in order to exercise the constitutional right to self-protection. The Court voted 6-3 that the New York law is unconstitutional because it prevents “law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.”

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Some particular aspects of the Court’s reasoning deserve further discussion. The Bruen Court grapples with the difficulty of deciding how to analyze gun restriction laws in light of the Second Amendment. The basic question is “whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding” (emphasis added). The Second Amendment protects the rights of law-abiding, adult citizens (“the People”) to keep and bear arms, particularly weapons in common use. Therefore, any law restricting that right needs to be consistent with the Nation’s “historical tradition of firearm regulation.”

First, it is heartening to see the Court will not give deference to state laws that stretch the tradition of law beyond recognition. The Court has traditionally accepted regulations on carrying firearms in sensitive places, such as courthouses. But the Court flatly rejects New York’s attempt to broaden “sensitive places” to include “all places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.” Justice Thomas responds that there is no precedent to effectively declare the entire island of Manhattan a “sensitive place” simply because it is highly populated and protected by the New York Police Department. This is an important example of a check on one branch of government by another, a reminder that the law must be respected and not stretched absurdly to achieve a desired goal.

The requirement laid out by the Court to survey the historical tradition of gun laws is a great opportunity to understand a pillar of originalist legal thought. The job of the Supreme Court in a case like this is to determine the original meaning of the legal text at the time it was passed. When interpreting the Second Amendment, the question is what the words of the amendment meant when the Bill of Rights was ratified in 1791. Justice Scalia’s opinion in District of Columbia v. Heller gives us an excellent example of the historical rigor required in such cases. But the reference to “text and historical understanding” raises an interesting point: If originalism requires analysis of the original meaning of the text, what relevant role does the analysis of contemporary state laws have? Why does the Court in Bruen suggest the need to examine state gun laws in the late 18th century rather than simply reading the text of the Second Amendment and consulting old dictionaries and law books to ensure they are reading the words faithfully?

The Constitution is the supreme law of the land and binds the States. The States cannot pass statutes that violate or contradict the Constitution. Therefore, an examination of the gun laws in existence at the time the Bill of Rights was ratified is incredibly important. For example, if in 1791 many states had laws allowing the open carrying of pistols in the city but expressly banning the carrying of long guns publicly in the city, it would be reasonable to assume that the “right to keep and bear arms” protects the right to bear pistols but not long guns publicly in cities. It is reasonably assumed that a constitutional provision does not contradict laws that were in place at the time the provision was ratified. If there was a contradiction, it is likely that the people either would not have passed the constitutional provision, or that the state statutes would have been struck down as inconsistent with the newly enacted provision. This creates a helpful framework: If a certain type of gun restriction was prevalent among the States at the time the Second Amendment was ratified, the Court will assume that type of restriction does not violate the Second Amendment. If a certain type of gun restriction was rare or non-existent at the time the Second Amendment was ratified, the Court will assume that type of restriction is unconstitutional.

One complication in the discussion of historical tradition is raised but not answered in the Bruen case: When the Second Amendment (ratified in 1791) was applied to the States via the Fourteenth Amendment (ratified in 1868), which historical period ought the Court to look at? Justice Thomas’s opinion for the Court states that the question need not be answered in this case, because there was no historical tradition of laws similar to New York’s constrictive carry law in 1791 or in 1868. The proponents of the New York law mostly pointed to gun restrictions passed in the late nineteenth century. The Court responds that “late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.”

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While the Court does not answer for sure whether we ought to look to the time of the Second Amendment or the Fourteenth Amendment, there are hints that 1791 is the correct time period. Justice Barrett’s concurring opinion particularly points out that the Court is not endorsing appeals to history from the Fourteenth Amendment era and warns that this opinion “should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights.” This is logical: The fundamental protection of the right to bear arms is enshrined in the Second Amendment, not the Fourteenth Amendment. This is likely the period we should look at to see what gun restrictions were prevalent. Either way, it is encouraging to receive such strong signals that in constitutional cases the Court will only consider a tradition of laws in existence at the time the Constitution was ratified, not later.

The Court’s ruling in Bruen is a victory for that particular case. Striking down overly restrictive gun licensing laws as unconstitutional is a good step in restoring a robust Second Amendment. But looking beyond Bruen, the Court has laid the groundwork for important further challenges to gun restrictions. In particular, there are several states that have banned the sale of guns such as AR-15s, as well as “high-capacity” magazines that hold more than 10 rounds. The Court’s ruling in Heller and here in Bruen reveal an increasingly clear set of rules to determine whether a gun law is restrictive enough to be struck down under the Second Amendment. The Second Amendment protects the right of law-abiding citizens to both possess and carry weapons for self-defense, particularly weapons that are in common use among the populace. Any law that restricts that right must be shown to be consistent with traditional gun restrictions at the time the right was enacted as law.

From this rule, it is reasonable to believe that a challenge to a state law banning AR-15s and 30 round magazines may be successful if brought before the current Supreme Court. As I wrote recently, the AR-15 is the most popular rifle in the nation, which clearly qualifies it as a weapon in common use. Likewise, 20 and 30-round magazines are standard; they are routinely packaged with AR-15 rifles. It is thus accurate to state that 30-round magazines for AR-15s are actually standard capacity, not “high capacity.” Since these types of weapons are in common use for self-defense in America, any ban on their sale or possession should be unconstitutional unless a state can show a tradition of similar laws at the time the Second Amendment was ratified. A survey of gun laws around 1791 will show no such tradition of an outright ban on the sale of a commonly used rifle. Therefore, it is reasonable to believe that a successful challenge to an AR-15 ban in the next couple years is quite plausible.

Conservatives should be grateful for the decisions being released by the Supreme Court this month. The opinions in Bruen, in Carson v. Makin, and in Dobbs are good not only for the traditional restoration of gun rights, religious liberty, and abortion laws, but for the courageous decision to roll back tremendous judicial overreach. This is not just about policy outcomes. States may not make laws that abridge the constitutional rights to free exercise of religion or the right to bear arms. The Court may not use the due process clause to create “rights” foreign to the traditions of the nation. These are important principles if we are to keep a republic built on laws rather than the whims of men.

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