Does Bruen Insanity Violate the Tenth Amendment?
Since the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen in 2022, I have written numerous blog posts and essays criticizing the opinion’s “insanity.” In Bruen, the Supreme Court invalidated a 1911 New York gun law on history and tradition grounds. More important than the specific result in the case, however, was the Court’s announcement of a brand new test to establish the validity of modern gun laws.
In an opinion written by
Justice Clarence Thomas, the Court decided that contemporary gun legislation
can only be upheld by judges if the government points to similar laws passed
either in 1791 or 1868. The Court rejected the traditional and historically justified
balancing approach the Court uses to decide most constitutional law cases, whereby the justices weigh the importance of the asserted right against the government’s
justifications for the law. I have described
this new framework as follows:
The Court’s decision in Bruen is not steeped in text, history, or precedent. At the founding and in 1868 when the Reconstruction Amendments were ratified, judges in constitutional litigation routinely used a balancing test to determine the validity of state and federal laws. It is likely that one motivating factor for the Bruen text-and-history-only method was the Justices’ fear that the public safety impacts of gun laws will always be relatively easy to see and will often outweigh the asserted gun right in the case. But that is exactly how the interpretation of the Second Amendment should proceed.
We should not be seeking answers from a society hundreds of years removed from today when weapons were much weaker than they are today, urban areas far less populated, and society in general so different. Even assuming that District of Columbia v. Heller correctly found an individual right to own guns separate from militia service, that right, like all constitutional rights, is not absolute and can be limited in the name of an important public good. A bad actor cannot legally yell “fire” in a crowded theater (unless there really is one), and similarly a bad actor should not be allowed to bring a lethal killing tool inside a crowded theater if a town, city, or state so desires. The Bruen decision, however, likely takes that decision out of the hands of elected leaders and places it in the hands of unelected, life-tenured judges. And that method of keeping our country safe is, quite simply, constitutional insanity.
In a
provocative new article forthcoming in the University of Chicago Law Review titled
“Bruen’s Tenth Amendment Problem,” Professors Jake Charles and Jonah Gelbach
put forth a new critique of Bruen that has not been previously articulated
by the many scholars who have strongly lamented the Court’s rationale. In their
article, the authors suggest that Bruen violates the Tenth Amendment to
the United States Constitution because it divests the states of a power that
was reserved to them by that Amendment. The authors argue that legislative choice (whether or not to enact a law) is a power reserved to the
states and not given to the federal government. Bruen’s holding that
contemporary gun laws that do not have analogues either in 1791 or 1868 are invalid violates the states’ reserved power to not address problems in a legislative
manner. The authors summarize their arguments as follows:
In Bruen, the Supreme Court applied a novel history-and-tradition framework to Second Amendment claims. That test keys the validity of modern gun laws to their similarity with historical analogues. Although scores of commentators have critiqued that approach, this Article identifies a critical constitutional flaw that has escaped focused attention: if Bruen’s test is not recalibrated, it violates the Tenth Amendment. The Tenth Amendment preserves to States all powers the U.S. Constitution did not divest from them. This Article argues that a crucial reserved power is the power of legislative choice—the States’ second-order power to choose whether to act or not, including whether to change course. Bruen’s requirement that each modern law match a historical precursor infringes on this reserved power, because it impermissibly removes from today’s legislatures a whole vista of choices available to their Founding-era predecessors. It withdraws a reserved State power that was woven into the Constitution when the Second Amendment was ratified: the power to do things differently today than before.
Although I am not completely persuaded by the authors' ultimate Tenth Amendment argument for reasons discussed below, I highly recommend this article for its blistering criticisms of the Bruen test. Whether or not Bruen actually violates the Tenth Amendment as currently applied (the authors put forth helpful suggestions to reduce the current insanity of the test), the authors' federalism concerns are persuasive and should be used by legal scholars to further criticize the history and tradition only test the Court invented in Bruen.
The Tenth Amendment provides the following: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The essential idea is that states retain all powers that are either not given to the federal government by the Constitution or prohibited by the Constitution to the states. The states have no authority to enact laws that violate the Second Amendment, however, so it is a bit difficult to see how the Tenth Amendment is violated if states act in ways that the Court deems to be inconsistent with the Constitution. If the authors are correct, it may be that every time the Supreme Court interprets the Constitution to limit state power in ways that critics think are wrong, the Tenth Amendment is violated. If so, the authors' analysis is just another way of saying that the Court should interpret the Constitution correctly; otherwise the Court is acting improperly.
For example, in Janus v , AFSCME, the Court held that states violate the First Amendment when they require their employees to pay partial union dues whether or not they belong to the union. Many scholars believe this decision erroneously interprets the free speech clause and limits state authority in a manner inconsistent with federalism principles. Does that mean Janus also violates the Tenth Amendment? And, even if it does, what does that conclusion add to the analysis?
But it is also possible that Bruen's history and tradition only approach is unique in how the Court's constitutional interpretations raise Tenth Amendment concerns. The conservative justices are essentially taking away a power the states should have for all time, the authority to enact legislation or not, and converting that power into a "use it or lose it" power that is forfeited unless it was exercised long ago. I do not think the authors believe that every Court decision that erroneously limits state power violates the Tenth Amendment, but I would have liked a bit more discussion of that issue. The states whose powers were wrongfully limited by the Court in Janus, and the states that for decades argued that Roe and Casey were wrongly decided, also likely thought that those decisions were at least inconsistent with, if not violative of, the Tenth Amendment.
Nevertheless, Bruen is an intolerable decision creating mass chaos in the lower courts. It also erroneously interprets the Second Amendment in ways that violate traditional federalism principles. Critics of the opinion should use every reasonable weapon at their disposal to undercut Bruen and end the insanity it has caused. To that end, I highly recommend reading “Bruen’s Tenth Amendment Problem,” by Professors Jake Charles and Jonah Gelbach.
-- Eric Segall