The Insanity and Incoherence of the Bruen Test for Second Amendment Cases
Reasonable people can disagree over whether the Constitution as a whole protects an individual right to own guns apart from militia service. Although the Supreme Court has misread text and distorted history to locate that right in the Second Amendment, which only applies to militia service, such a right could be created by reasonable judicial interpretations of the Ninth and Fourteenth Amendments. After all, the Court has recognized an array of fundamental unenumerated rights, such as the right of competent adults to refuse medical treatment, and Americans have prized their guns for centuries in ways that might suggest judicial protection for such a right.
Reasonable
people can also disagree in many cases involving gun laws over whether the
right is burdened in ways that are not justified by the reasons supporting the
law. The virtually complete ban on handguns in District of Columbia v. Heller,
for example, might be such a law.
But the
Supreme Court’s decision in New
York State Rifle & Pistol Association, Inc. v. Bruen, which sets
forth the current framework for evaluating laws that burden the right to own
and carry guns, is so incompetent, wrong, and frankly stupid, that this entire
area of the law is now an incoherent mess. Yesterday’s decision in Wolford v. Lopez, which Mike wrote
about on Thursday, demonstrates this insanity.
For
centuries, Hawaii had some of the strongest gun laws in the country. These laws
survived the Heller decision but could not outlast Bruen, which
created a new two-part test for judges to use to evaluate the constitutionality
of laws designed to protect the public from gun violence. The law at issue in Wolford
prohibited the carrying of guns on private commercial properties such as
restaurants, theaters, and shopping malls without the owner’s express consent. All
parties agreed, as did the Court, that no one has the right to carry a gun on private
property against the wishes of the owner of the property. The issue in Wolford
was whether a state could create a presumption that owners have not
consented to guns on their property.
Part one of
the Bruen test asks whether the statute at issue implicates the right to
own and carry guns under the Second Amendment. Wolford makes it clear
that, despite the Roberts Court’s typical virtue signaling that originalism is
its preferred method of constitutional interpretation, history is irrelevant
to that question. As Justice Jackson argued in dissent, any law that in any way
limits the right to own and carry guns, no matter how trivial, now passes the
first part of the test. In essence, there is no real step one anymore, though judges
in future cases will have to pay lip service to this non-step-step.
Justices
Jackson and Sotomayor argued that the Hawaii law did not trigger the right to
own guns at all because people have no right to carry guns onto private
property they do not own. I find this argument persuasive but will concede that
reasonable people can disagree about that point, as Mike argued in his post.
At step
two, the law can only be affirmed by a court if the government can show historical
analogues to the law either in 1791 or 1868. It does not matter what modern
considerations are at stake or whether the weapon at issue did not exist in any
form during those time periods. The test is solely historical and is terrible
as a matter of policy and inconsistent with any reasonable originalist approach
to constitutional interpretation. As to the latter point, I previously have written
the following about Bruen:
Justice Thomas said that the only legitimate methods of constitutional interpretation for judges to use are text and history and that courts should not balance public policy concerns against the weight of asserted rights. The founding fathers, however, simply did not treat rights that way. Constitutional rights were subject to restrictions if policy concerns were substantial enough. As Professor Jud Campbell has written, almost everyone at the Founding (and before) thought “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.”
At the very least, the Framers understood that judges always had to balance the reason for the law at issue with the strength of the asserted claim. Yet, Justice Thomas, writing for all the originalists, specifically rejected this mode of analysis universally accepted when the people ratified our Constitution .... Bruen may well be the most anti-originalist opinion in history.
In Wolford,
the majority and dissents disagreed over whether the government had provided
sufficient analogues. I think the dissent was far more persuasive, but that is not
the point I want to make. Rather, the history-and-tradition-only approach in
step two is unconscionably dumb and dangerous for any civilized society, and no
other country in the world resolves legal disputes in this manner.
First,
today’s weapons are nothing like the muskets and pistols available in 1791 and also substantially different from publicly available arms in1868. It is utterly ridiculous to compare the potential
harm caused by the weapons available long ago and the potential harms caused by
AK-47’s, much less handguns one can hide in a pocket. Right off the bat the
historical test makes no sense. It is like saying regulations over the use of
cars such as the requirement to wear seat belts can only be upheld by judges if
there are analogues in a world where horses and ferries were the primary methods of ground transportation.
Second, Bruen
does not allow the government to present policy reasons supporting a gun
regulation, no matter how important those interests are or how trivial the burden
on gun ownership happens to be. Could Hawaii pass a much narrower law making it
illegal to hide an AK-47 in a guitar case when entering a music club without
the express consent of the owner? Under Bruen step two, there is no
balancing of the purposes of the law against the burden it imposes. Instead, Bruen
requires a judge to go on a wild goose chase through centuries of history
to find a similar law with virtually no guidance on how similar those analogues
need to be or how many analogues are required.
We know
that in both Bruen and Wolford the government relied on similar
laws that were dismissed by the Court either as outliers or not sufficiently similar.
There are no usable standards that the Court has articulated to help judges
determine what makes prior laws outliers or not sufficiently similar to the
challenged law.
Third, the transformation of the constitutional inquiry from the usual balancing test that courts almost always employ to resolve cases into a purely historical test requires judges to try to parse history in ways that they, and the lawyers who appear before them, are simply unqualified to perform. Moreover, we do not know even after three cases employing the Bruen framework whether the relevant time period is 1791 when the Second Amendment was ratified, 1868 when the Fourteenth Amendment was ratified (incorporating most of the Bill of Rights to the states) or both. This uncertainty could obviously matter in future cases.
The inevitable result of
this framework is that judges will decide these cases based on their own
personal values concerning the balancing of gun rights and public safety before
they manipulate historical sources to justify results that they reached on
other grounds. This lack of transparency is a serious threat to the rule of
law.
No one alive
in either 1791 or 1868 had any experience with small deadly guns that can be
hidden in one’s pocket or with the terror and harm unleashed by a bad guy with
an AK-47. This reality means that in most gun cases history will provide little
or no guidance. If you do not believe me, here is Justice
Scalia on whether it is reasonable under the Fourth Amendment for police
officers to routinely search the pockets of people they stop for routine traffic
violations just in case they are hiding a gun: “even if a ‘frisk’ prior to
arrest would have been considered impermissible in 1791 . . . perhaps it is
only since that time that concealed weapons capable of harming the interrogator
quickly . . . have become common—which might alter the judgment of what is
‘reasonable’ under the original standard.”
In other
words, even if the Founding generation had specifically considered the legality
of protective frisks prior to arrest, and even if they had decided that such
frisks were illegal, the same issue may be decided differently by future judges
because of societal and technological changes occurring after the Constitution
was ratified.
Scalia’s
approach here is obviously right. But in the context of the Second Amendment
post-Bruen, it is not allowed.
The Bruen
test is anti-originalist, anti-common sense, and unusable in a consistent
manner. Someday it will be discarded by the Court, and that day cannot come
soon enough.