At Law & Liberty, Randy Barnett & Nelson Lund: Implementing Bruen. From the introduction:
In its 6-3 Bruen decision this past June, the Court invalidated a New York law that forbade Americans to carry a firearm in public unless they could persuade a government official that they had been subjected to some extraordinary threat to their personal safety. This was an easy case on originalist grounds. At the time, as now, “to bear” meant “to carry.” The New York law infringed the right by making its exercise entirely dependent on whether a bureaucrat thought the citizen had a good enough reason to be armed. A constitutional right subject to a bureaucrat’s veto is no right at all.
Had the Court stopped there, this vindication of the right to bear arms would have been significant. But the justices went further. They expressly repudiated more than a decade of decisions by the lower courts that the Court regarded as excessively deferential to legislatures’ judgments. Bruen announced a new legal test:
When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
The Court specified that a restriction of gun rights may be upheld only if the government affirmatively proves it is part of a historical tradition consistent with the Second Amendment’s original meaning. Requiring courts to rely solely on history in this way is meant to prevent judges who dislike the right to keep and bear arms from overriding the original meaning of the Constitution.
We sympathize with the majority. In Bruen, the Court was responding to a very real problem in the lower courts. But Bruen’s new legal test is ill-suited to the task. Except for disarmament laws aimed at politically suspect minorities such as Indians, blacks, Catholics, and suspected British loyalists who refused to sign loyalty oaths, there were almost no legal restrictions during the founding era on keeping or bearing weapons, as distinct from misusing them. And such regulations were uncommon before the mid-nineteenth century. To evaluate modern gun control laws, lower court judges have now been given the unenviable task of looking for analogous regulations in a historical record that consists largely of empty pages.
And from later on:
What’s the alternative? Rather than relying on specious historical traditions, courts could evaluate gun laws against the purpose of protecting the right to keep and bear arms: facilitating the exercise of the fundamental right of personal and collective self-defense. In particular, judges could require the government to prove that a challenged restriction of the right to keep or bear arms does not vitiate the ability of Americans to use firearms to defend themselves against violent threats that the government cannot or will not prevent. In this way, judges can distinguish regulations that reasonably regulate this fundamental right from those that unreasonably obstruct it.
Thus, for example, Justice Samuel Alito suggested at the oral argument in Bruen that banning guns in sensitive buildings protected by magnetometers and armed guards might be justified because the burden on the right of self-defense is more than offset by the protective measures that have been put in place. The same goes for the strict regulations that apply to modern air travel, given the special vulnerability of passengers and crew to the demonstrated threat of armed hijacking or worse. In both cases, the government has created conditions that greatly lessen, if not eliminate, the need for personal self-defense. But such assurances are rarely within the power of government to provide absent the sort of Herculean effort associated with the tightly controlled environments such as airports, prisons, and courthouses.
Defining “sensitive places” to include extensive public areas, as New York did after Bruen was decided, would not be justifiable. Even if the government believes public safety would be enhanced by effectively nullifying the right to bear arms, the power to appropriately regulate the exercise of a constitutional right is not the power to destroy it.
Requiring the government to establish that the fundamental right of self-defense is not vitiated by a proposed regulation would not mechanically answer every legal issue. But by looking to the purpose of the Second Amendment, it asks the right question. Such a test appropriately puts a heavy burden on the government to justify regulations of the constitutional right to arms—a burden that must be met by evidence, not speculation. We doubt that a majority of justices would overturn a lower court decision that held a gun restriction unconstitutional on this basis rather than by a failure to find a historical analogue.
Posted at 6:39 AM