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.

Heniford and Still on Panic! At the Ballroom: The 1804 New Orleans Ballroom Weapons Ban in a Post-Bruen Context

Kellen Heniford, Everytown for Gun Safety, and Kari Still, Johns Hopkins Center for Gun Violence Solutions, are publishing Panic! At the Ballroom: The 1804 New Orleans Ballroom Weapons Ban in a Post-Bruen Context in the Buffalo Law Review. Here is the abstract.

In the aftermath of the Supreme Court’s decisions in New York State Rifle & Pistol Ass’n, Inc. v. Bruen in 2022 and United States v. Rahimi in 2024, history has taken a central role in the adjudication of Second Amendment cases. Researchers, courts, and litigators across the country have taken on the arduous task of sifting through archives of our nation’s history in order to compile a record of early American arms regulations. Litigation moves quickly, and too often, historical context is missing or selectively marshaled in these cases. This article builds upon efforts to provide that crucial context, specifically in relation to the history of the United States’ earliest enactments that banned weapons in ballrooms. Within, we (1) identify an as-of-yet uncited ballroom weapons ban in 1804 New Orleans, which is the earliest known regulation of its kind; (2) explicate the historical context surrounding that regulation, as well as the even stricter 1808 and 1817 bans that followed it; and (3) suggest general principles that may be distilled from these restrictions when they are considered within a larger historical tradition. We explain that these early nineteenth-century regulations can be understood as part of a historical tradition of weapons bans under either of two different types of sensitive places: places where there is a high probability of conflict and places where the presence of weapons is incompatible with the actual functioning of the place itself.

Download the article from SSRN at the link.

Siegel on The Levels-of-Generality Game: "History and Tradition" in the Roberts Court @HarvardJLPP @YaleLawSch

Reva Siegel, Yale Law School, is publishing The Levels-of-Generality Game: "History and Tradition" in the Roberts Court in volume 47 of the Harvard Journal of Law and Public Policy (2024). Here is the abstract.

Scholars have not agreed upon a method of interpretation that explains the Court’s reasoning in Dobbs v. Jackson Women’s Health Organization or New York State Rifle & Pistol Association v. Bruen. As this Article shows, what explains the history-and-tradition decisions of the Roberts Court is not a method of interpretation, but instead a justification for the Court’s turn to the past. The conservative Justices claim that interpreting the Constitution through history and tradition—when described in granular factual detail—best constrains judicial discretion by tethering law to objective criteria separate from the interpreter’s policy preferences. Justice Scalia long ago advanced this claim, and began a decades-long debate over “levels of generality” when he urged judges “to adopt the most specific tradition as the point of reference.” The Article contrasts this belief—that tying constitutional interpretation to history can constrain the expression of judicial values—with an alternative account. An interpreter’s appeal to facts about the nation’s past in constitutional argument often expresses values—forms of argument I have called “constitutional memory” claims. What appear in constitutional argument as positive, descriptive claims about the past are often normative claims about the Constitution’s meaning. In this Article, I show how my account of constitutional memory identifies the expressive role of conservative historicism, counters the judicial-constraint justification, and offers new perspectives on the levels-of-generality claims associated with it. The Article opens by examining puzzles of method and justification presented by Dobbs and Bruen during the 2021 Term. It concludes with a late-added section that samples the Justices debating the Article’s judicial-constraint and levels-of-generality themes in cases of the 2023 Term—in particular, in the Second Amendment case of United States v. Rahimi. The Article’s account of Dobbs, Bruen, and Rahimi demonstrates that we are all living constitutionalists now—but, crucially, not all living constitutionalism is the same. A conclusion identifies reasons why the Justices who present appeal to the past as claims of judicial constraint may engage in anti-democratic forms of living constitutionalism.

Download the article from SSRN at the link.

Willinger on Missing Pieces: Gaps in the Record of Early American Decisional Law @AndrewWillinger @DukeFirearmsLaw @DukeLawJournal

Andrew Willinger, Duke University School of Law; Center for Firearms Law, is publishing Missing Pieces: Gaps in the Record of Early American Decisional Law in the Duke Law Journal Online. Here is the abstract.

In its most recent major Second Amendment decision, NYSRPA v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were subject to judicial scrutiny during crucial eras of American history because many court decisions—especially from the Founding Era—were simply never recorded for posterity. Those omissions were not random and they do not represent merely what we today would consider insignificant holdings. Rather, omissions from the surviving record of decisional law are the product of curation by early court reporters, newspaper editors, and other actors often motivated by profit or partisan bias. Therefore, it is often perilous to extrapolate “the general law” from the extant, unrepresentative caselaw that happens to be preserved today. This Essay examines how the non-legal choices and preferences of those who recorded early American decisional law prior to the gradual emergence of more consistent reporting of judicial decisions in the late 19th century shaped the historical record of early decisional law that exists today. Part I chronicles the largely inconsistent and at times chaotic practice of court reporting at and after the Founding and explores how judicial decisions were preserved and published during that time. Part II addresses how modern originalist theories should approach and appreciate the “curated” nature of legal history from that time. I argue that the record of early American decisional law has been profoundly influenced by various actors (legal and non-legal) according to considerations other than preserving an accurate, comprehensive snapshot of “general law” at the time—namely, based on motives including profit and partisanship. This reality, I suggest, means that it is crucial to expand the universe of historical sources when possible to capture what may be missing from the universe of preserved decisional law.

Download the Essay from SSRN at the link.

Brown, Epstein, and Gulati on The Constraining Efect of "History and Tradition": A Test

Rebecca L. Brown, USC School of Law, Lee Epstein, University of Southern California, and Mitu Gulati, University of Virginia School of Law, have published The Constraining Effect of "History and Tradition": A Test as Virginia Public Law and Legal Theory Research Paper No. 2024-63, Virginia Law and Economics Research Paper No. 2024-28, and USC Law Legal Studies Paper No. 24-33. Here is the abstract.

The U.S. Supreme Court’s embrace of originalism, and particularly the “history and tradition” method of interpreting constitutional text, is often justified by its defenders as constraining judges from making up the law to match their preferences. Two Second Amendment cases (Heller in 2008 and Bruen in 2022), where the Court switched methodologies, provide a vehicle to test the debated question. Analyzing data from federal court decisions on gun rights spanning 2000 to 2023, we find that the switch from a means-ends to a history-tradition methodology corresponds with an increase in judicial discretion. Personal factors like partisan identity, gender, race and careerist considerations shape judicial behavior in the post-Bruen era in ways they did not under the prior regime. The results challenge the notion that a historical approach provides a neutral constraint on judicial discretion.

Download the article from SSRN at the link.

Charles on Time and Tradition in Second Amendment Law @JacobDCharles @PeppLaw @FordhamULJ

Jacob D. Charles, Pepperdine University School of Law, has published Time and Tradition in Second Amendment Law at 51 Fordham Urban Law Journal 259 (2023). Here is the abstract.

The Supreme Court’s Second Amendment is a chronological chameleon. For one purpose, its meaning is fixed in the firmament of the Founding era. For another purpose, its language is anchored to the understanding of living Americans. One clause gets projected backwards, traced to antecedents in the 17th century. An adjacent clause gets projected forward, evolving alongside dynamic consumer preferences. Still other words or phrases are cloaked in meaning from different temporal epochs — the Long 18th Century, the Antebellum South, the Reconstruction Era, and even the Reagan Revolution. This oscillation remains unexplained in the Justices’ opinions. Why so many incompatible timelines? Only Χρόνος knows. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a new past-bound Second Amendment test. There, the Court said that no gun regulation can be upheld unless it has an analogue in the distant past — unless, that is, “the government can demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” That historical test masks the ways that the Supreme Court’s own pronouncements refer different questions to different time periods. Lower court judges have drawn attention to how the Court’s new guidance creates a “logical inconsistency” in the time that matters and fuels “anachronism” in the Court’s doctrine. They have recognized, that is, that time takes on supreme importance, but that the relevant temporal frame is not uniform across the questions pervading Second Amendment law. Neither the Court nor commentators give any reason to refer some questions to the Founding generation and others to Gen X. This brief Essay explores the inconsistency in the current doctrine. Part I charts the different questions that the Supreme Court has divided up among different temporal epochs. Part II begins to think through how the Court could redirect or justify its practice, either by referring all questions to the same time period or explaining why the existing diversity makes sense. Whatever the pathway, the Court should justify its doctrinal treatment of time.

Download the essay from SSRN at the link.

Frassetto on The Historical Regulation of Intoxicated Firearms Possession and Carry: A Response to F. Lee Francis's "Armed and Under the Influence: The Second Amendment and the Intoxicant Rule after Bruen" @MarkFrassetto

Mark Frassetto, Everytown for Gun Safety, is publishing The Historical Regulation of Intoxicated Firearms Possession and Carry: A Response to F. Lee Francis's 'Armed and Under the Influence: The Second Amendment and the Intoxicant Rule after Bruen' in volume 108 of the Marquette Law Review. Here is the abstract.

Recently, the Marquette Law Review published "Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen" by Prof. F. Lee Francis. In that article, Professor Francis provocatively argues that the Second Amendment protects the right of intoxicated people to carry guns in public. Francis argues that, under the history-focused framework for deciding Second Amendment cases laid out by the Supreme Court in Bruen, there is an insufficient historical tradition to support prohibiting intoxicated people from carrying arms in public. Francis is wrong about the historical tradition. The historical tradition of regulating the intersection of guns and alcohol, the tradition of regulating intoxication and substance abuse generally, and the broader tradition of prohibiting dangerous people from possessing firearms all provide historical support for the constitutionality of modern prohibitions on intoxicated people carrying and using firearms. This article will critique Francis’s article in three ways. First, Francis fails to acknowledge the full scope of the historical regulation of intoxicated people carrying firearms, which was extensive, especially during the mid-to-late-nineteenth century, the period which is most relevant to the Second Amendment analysis of state laws. Second, Francis’s piece fails to grapple with the ubiquitous general prohibition on public intoxication, which existed during the Founding Era and for much of American history. Third, Francis’s piece fails to address the historical tradition of prohibiting firearms possession by those who, like intoxicated people, posed a danger to themselves or others. All three of these traditions provide strong support for the constitutionality of prohibiting firearms possession by intoxicated individuals.

Download the article from SSRN at the link.

Spitzer on Understanding Gun Law History After Bruen: Moving Forward by Looking Back @spitzerb @WMLawSchool

Robert J. Spitzer, SUNY Cortland; College of William & Mary School of Law, is publishing Understanding Gun Law History After Bruen: Moving Forward by Looking Back in volume 51 of the Fordham Urban Law Journal. Here is the abstract.

The Supreme Court’s 2022 Bruen Second Amendment decision has remade the criteria for judging the constitutionality of contemporary gun laws. As a consequence, every manner of modern gun law has been subject to new court challenges. Courts and lawyers are now struggling to determine whether modern challenged gun laws are “consistent with this Nation's historical tradition of firearm regulation.” My article takes Bruen at its word that American weapons law history matters as the primary basis for determining the constitutionality of modern gun laws. Therefore, this article does two things. First, I argue that a specific and sequential set of steps explains the relationship between the invention and development of various weapons and weapons technologies, their circulation in society, and subsequent governmental efforts to regulate, restrict, or prohibit those weapons in order to protect public safety and thwart crime. This relationship exists consistently throughout American history and is found to apply to three types of dangerous weapons—guns, fighting knives, and certain types of clubs and other blunt objects—that were subject to widespread, extensive, and varied regulation in the colonies, states, and localities across 300 years of American history. Second, this framework is applied through a detailed examination of weapons and weapons laws, including state restrictions on fully automatic and semiautomatic firearms in the early twentieth century; surprisingly extensive regulation of ammunition feeding devices during the same period; pre-20th century firearms technologies, incorporating an array of experimental multi-shot weapons dating back several hundred years; and historical restrictions on fighting knives (most notably the Bowie knife), blunt weapons and clubs, pistols, and trap guns. This article demonstrates that firearms and other dangerous weapons were subject to remarkably strict, consistent, and wide-ranging regulation throughout our history when they entered society, proliferated, and resulted in violence, harm, criminality, or threats to public safety and good order. This is even more remarkable given that the United States was an evolving and developing nation-state that could not claim to have reached maturity until the twentieth century. Gun ownership is as old as the country. But so are laws restricting guns and other dangerous weapons. If this history teaches anything, it is that the state has no less an abiding interest in preserving public safety today by restricting the tools that magnify violence than it did in prior centuries. Contemporary firearms restrictions are merely the latest iteration of a centuries-long tradition of weapons regulation and restriction.

Download the article from SSRN at the link.

Charles on Time and Tradition in Second Amendment Law @JacobDCharles @PeppLaw @FordhamULJ

Jacob D. Charles, Pepperdine University School of Law, is publishing Time and Tradition in Second Amendment Law in volume 51 of the Fordham Urban Law Journal. Here is the abstract.

The Supreme Court’s Second Amendment is a chronological chameleon. For one purpose, its meaning is fixed in the firmament of the Founding era. For another purpose, its language is anchored to the understanding of living Americans. One clause gets projected backwards, traced to antecedents in the 17th century. An adjacent clause gets projected forward, evolving alongside dynamic consumer preferences. Still other words or phrases are cloaked in meaning from different temporal epochs — the Long 18th Century, the Antebellum South, the Reconstruction Era, and even the Reagan Revolution. This oscillation remains unexplained in the Justices’ opinions. Why so many incompatible timelines? Only Χρόνος knows. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a new past-bound Second Amendment test. There, the Court said that no gun regulation can be upheld unless it has an analogue in the distant past — unless, that is, “the government can demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” That historical test masks the ways that the Supreme Court’s own pronouncements refer different questions to different time periods. Lower court judges have drawn attention to how the Court’s new guidance creates a “logical inconsistency” in the time that matters and fuels “anachronism” in the Court’s doctrine. They have recognized, that is, that time takes on supreme importance, but that the relevant temporal frame is not uniform across the questions pervading Second Amendment law. Neither the Court nor commentators give any reason to refer some questions to the Founding generation and others to Gen X. This brief Essay explores the inconsistency in the current doctrine. Part I charts the different questions that the Supreme Court has divided up among different temporal epochs. Part II begins to think through how the Court could redirect or justify its practice, either by referring all questions to the same time period or explaining why the existing diversity makes sense. Whatever the pathway, the Court should justify its doctrinal treatment of time.

Download the essay from SSRN at the link.

DeLay on The Myth of Continuity in American Gun Culture @BrianDeLay @UCBerkeley

Brian DeLay, University of California, Berkeley, has published The Myth of Continuity in American Gun Culture. Here is the abstract.

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen elevated history, text, and tradition as the sole criteria for assessing the constitutionality of firearms restrictions. Gun-rights advocates have responded with a wave of Second Amendment challenges, most employing a three-part argument: 1) X firearms-related issue has been around since the founding; 2) the Founders did little or nothing about it; 3) therefore we cannot do anything about it, either. Legal scholars are engaged in critical work on parts 2 and 3 of that argument. As a professional historian involved in several Second Amendment cases over the past year, I have the disciplinary expertise to offer a critique of part 1. This Article explains why the argument for continuity in American gun culture is largely a myth, and offers a case study in the role that historical research can play in Second Amendment cases in the Bruen era. It begins by arguing that whereas today’s gun culture is consumerist, state-phobic, and individualist, early America’s gun culture was utilitarian, state-led, and collective. The Article then presents detailed critiques of the iterations of the myth of continuity being deployed to overturn laws regulating assault weapons, large-capacity magazines, and ghost guns. It demonstrates that these were nonexistent or impractical technologies in the Founding era, no more likely to attract regulatory attention than jetpacks do in our own times. Once these products finally became reliable enough consumer items to cause societal problems in the twentieth and twenty-first centuries, regulation quickly followed. Put into proper historical context, then, assault weapons, large-capacity magazines, and ghost guns represented “dramatic technological changes” that provoked “unprecedented societal concerns.” Regulations addressing those concerns should be found constitutional under Bruen’s history-centric framework. Good history should help preserve some firearms laws in the Bruen era. More importantly, by forcing states to research Founding-era history in order to defend firearms regulation, the decision will inevitably bring renewed scrutiny to Heller’s ahistorical claim that the Second Amendment was crafted to protect an individual right to armed self-defense. The Article therefore concludes by predicting that Bruen will ultimately destabilize the very foundation of modern Second Amendment jurisprudence.

Download the article from SSRN at the link.