Charles and Gelbach on Bruen's Tenth Amendment Problem

Jacob D. Charles, Pepperdine University School of Law, and Jonah B. Gelbach, University of California, Berkeley, School of Law, have published Bruen's Tenth Amendment Problem. Here is the abstract.

In New York State Rifle & Pistol Association v. 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. In light of this conflict, the Article urges the Court to clarify that judges must implement any historical test in a way that respects the power of legislative choice. First, the Court should accord historical silence contextually appropriate weight. It can do so by recognizing and adopting a principle from the law of evidence, which deems silence in the face of an accusation probative only if the circumstances called for contradiction (what we label “the 3C test”); historical silence should be probative only if circumstances otherwise called for regulation. Second, at the same time it devalues silence, the Court should simultaneously expand the universe of historical evidence relevant to the inquiry. Both moves would better serve the end of respecting constitutionally-guaranteed State prerogatives while safeguarding individual rights.

Download the article from SSRN at the link.