The Roberts Court's Dangerous and Anti-Historical Bruen Test For Gun Safety Legislation Must Be Changed

In 2022, the Supreme Court of the United States handed down the most anti-originalist and irrational decision interpreting the Second Amendment in American history. In New York State Pistol & Rifle Association v. Bruen, Justice Thomas, writing for the conservative Justices, struck down a 1911 New York law that gave government officials discretion to approve or deny permits for the open carry of firearms. The Court held that judges can no longer uphold gun reform laws unless the government affirmatively points to similar laws from 1791 or 1868. The Court said that judges are not allowed to balance gun rights against the public policy concerns (no matter how important) that states use to justify gun restrictions.

This "text and tradition" only test will be used  by the justices this term to decide two major Second Amendment cases. One case that was argued late last month (Mike wrote a helpful summary here), involves an Hawaii law banning the carrying of guns on private property open to the public unless the owner gives express permission. The second case, which will be argued in March, involves a federal law criminalizing the possession of guns by habitual drug users.

The Bruen test is a constitutional outlier that reverses the traditional presumption that state and federal laws are constitutional unless the plaintiff affirmatively demonstrates the invalidity of such laws. The test also has no basis in the Constitution's original meaning. The people who ratified and voted for our Constitution did not expect judges to evaluate legally protected rights this way. Instead, they believed that constitutional rights were subject to regulation if policy concerns were weighty enough to override the right. As Professor Jud Campbell has written, the people at the Founding (and before) believed “rights were not a set of determinate legal privileges or immunities that the government could not abridge . . . Rights . . . could be restricted by law to promote the good of the society.” Justice Thomas, however, rejected this universally accepted balancing analysis in favor of an approach that places the government's policy concerns out-of-bounds for judges when they evaluate the validity of gun laws.

Some defenders of Bruen (there aren't many) may argue that the Court has begun to apply its history-and-tradition approach to a few other contexts such as abortion rights and religion cases. But in those areas of the law, such as the Dobbs decision that overruled Roe, the conservative justices placed the burden on the plaintiff to show that history and tradition justified the judicial invalidation of state and federal laws. There is a huge difference between holding that laws enacted by the democratic process are presumed constitutional unless the plaintiff meets her burden of showing the laws violate long-established traditions, and the Bruen test which forbids voters and legislatures from acting unless they affirmatively demonstrate that new gun legislation is sufficiently similar to very old laws regulating firearms. The fact that legislatures did not act centuries ago to solve a particular problem simply should not disqualify them from addressing today's pressing needs. In no other area of the law has the Court applied that kind of framework other than the Second Amendment.

The Bruen test is not only inconsistent with centuries of judicial practice but it is also incoherent, unworkable, and absurd. Nowhere was this more on display than during oral argument in the Hawaii case (four other states have passed similar laws).

All the parties to the case agreed that property owners have an absolute right to deny entry to their property to people carrying firearms. As the owner of a restaurant or theater, I have the right to refuse service to anyone I want for any reason absent a valid public accommodation law that restricts that right (such as laws forbidding discrimination on the basis of race or religion). The only issue in the case was whether a state, city, or town, can legislate a presumption that certain behaviors are not allowed on private property without the owners’ express consent.

Imagine a town of 10,000 people where there has been a spate of armed robberies at restaurants and gas stations. Obviously, every property owner in the town could put up a sign saying, “no guns allowed.” Everyone at the argument assumed such behavior to be constitutional.

Now assume that the town for the sake of clarity and to protect the public passed a law outlawing the carrying of guns in privately owned places of public accommodation without the permissiion of the owner because that was the best way to deal with the felonies and violence. Since there is no right to carry a gun in such places in the first place if the property owner says no, why can’t the town council establish that rule by legislation? Because there is no good answer to that question, the oral argument was littered by absurdly silly and dangerous logical fallacies demonstrating the utter foolishness of the Bruen test.

The Chief Justice and a couple of the other conservative justices continued on their quest to show that the right of free speech and the right to carry dangerous killing machines should be treated exactly the same way. Chief Justice Roberts argued that people have the right to go onto private property to hand out political leaflets or to ask for the owner’s vote in the absence of a sign by the owner forbidding such activities. He suggested, as did several other justices, that the state could not enact a law forbidding all such free speech activities without the owner’s express permission. For the purpose of this post, I will assume the justices are correct about that interpretation of the First Amendment.

This analogy is both inaccurate and inconsistent with the Bruen test itself (showing the justices implicitly know that the test is unworkable). As to the latter point, Bruen directs judges to only ask whether similar gun laws were enacted in or around 1788 or 1868, and that is the only question judges may ask if an alleged gun right is being infringed. Speech rights are completely irrelevant to that question. So, why are the justices asking questions about them? The answer is that the history-and-tradition-only framework cannot and will not be applied by judges without normative judgments.

Moreover, the analogy is dumb because the dangers of people abusing the privilege of handing out leaflets in places of public accommodations or seeking votes in such places are completely different from the risks of allowing armed people in such places. States should be allowed to recognize those differences and present reasons why risks from guns require legislation that risks from speech do not (and the other way around). But under the Bruen test, all such arguments are forbidden. No discussions or evaluations of relevant policies are allowed. That limitation is beyond all reason and has no justification in our constitutional tradition.

Justice Barrett also departed from the Bruen framework by comparing the Hawaii law to a hypothetical state statute prohibiting Black people from entering privately owned places of public accommodations without the express permission of the owner (assuming the absence of laws prohibiting such discrimination). Her point, I think, was that absent state or federal laws, hotels and restaurants have the right to exclude people on the basis of any characteristic but that does not mean states can enact laws with a presumption that Black people cannot enter without express permission.

This line of questioning reflects so much that has gone wrong in Second Amendment law. The reason states could not pass the hypothetical statute suggested by Justice Barrett is that it is almost impossible to think of a legitimate, much less compelling, reason (which is what strict scrutiny would demand) for such a racial classification. Hawaii has at a minimum rational if not compelling reasons to worry about armed people in privately owned public places. But states are not allowed to press such concerns in Second Amendment cases, even though they are allowed to do so across the rest of our constitutional law landscape.

The Bruen test tells the fifty states and the federal government that they cannot address substantial, modern problems when it comes to gun violence unless they can show similar laws were passed long ago when guns were much less powerful and our country was not full of places where large groups of people gathered in specific closed locations. For example, there were no stadiums in 1788 that could hold 70,000 people or shopping malls where thousands of people visited at the same time. The risks of guns in such places were simply not considered by the founding generation or the people living in 1868. 

Would such stadiums and malls be covered under that part of Heller’s dicta that allowed for gun regulation in “sensitive places?” Who knows? The Court hasn’t yet disclosed whether that question should only be answered by reference to history, but it appears from the argument that would be the conservative justices’ position. If so, the question of what kind of ancient laws would be sufficiently analogous to a law banning guns in stadiums and malls without the owner’s consent is unanswerable and illogical. The question should instead center around the purposes of such a law balanced against how serious an infringement on gun rights is imposed by the statute. Disenfranchising current legislatures unless they are attacking a problem in a way similar to how legislatures dealt with what judges deem to be similar problems centuries ago is irrational, illogical, and dangerous. It is also a serious violation of states' rights.

It is one thing for judges in a constitutional republic to overturn laws on the basis that judicially enforceable rights must at times trump policy goals government officials want to further. The very point of a written Constitution is to limit what future governments can do. But that analysis must be informed by contemporary facts and values (in turn informed by history and tradition). Requiring judges to focus exclusively on laws enacted or not centuries ago when the relevant facts have changed so dramatically is too much for a modern democracy to bear.

In no other area of constitutional law do we hamstring lawmakers that way nor should we, because the test leads to judicial overreaching of the worst kind and because the test cannot be performed in good faith without normative policy judgments informing what is alleged to be an exclusively historical test.

The Court needs to substantially modify or discard completelly the Bruen test because it is unsound, unworkable, and completely inconsistent with how judges decide other constitutional law cases.

Eric Segall