At Dorf on Law, Eric Segall: The Roberts Court’s Dangerous and Anti-Historical Bruen Test For Gun Safety Legislation Must Be Changed. From the introduction:
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 … 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 …
UPDATE: At the Originalism Works-in-Progress conference in San Diego last weekend, Reva Siegel and Joseph Blocher presented this paper, which is critical of the Bruen test in somewhat similar terms. Unsurprisingly, Professor Segall’s name came up in the discussion.
Posted at 6:01 AM