The General-Law Right to Bear Arms
Article
The General-Law Right to Bear Arms
William Baude* & Robert Leider**
INTRODUCTION
New York State Rifle & Pistol Ass’n v. Bruen[1] marked an important methodological return to original legal principles. The legal issues in the case were whether the right to bear arms included the general right to carry handguns outside the home for self-defense, and if so, whether New York could restrict the carrying of handguns for self-defense to only those residents who had a special need for self-defense (“proper cause”). In answering these questions, however, the Court also made broad pronouncements about the correct way to decide the scope of the right to keep and bear arms, criticizing the methodological approach that had become common in the lower courts. Specifically, the Court emphasized the role of history and tradition, rather than what it called “interest balancing,” and then proceeded to analyze the history of the regulation of arms bearing for eighteen pages.[2]
This was an attempt at an overdue doctrinal course correction. The Supreme Court first recognized an individual right to bear arms for self-defense in District of Columbia v. Heller.[3] But since Heller, lower-court judges had been “narrowing [Heller] from below.”[4] For example, in the name of intermediate scrutiny, lower courts had upheld laws that, in essence, prevented most citizens in those jurisdictions from exercising the right to bear arms at all.[5]
Lower courts have since understood Bruen’s text, history, and tradition test to require them to survey historical gun laws to determine whether modern laws have analogues in early American practice.[6] And this presents a problem. The Framing era had few gun laws, and thus, few analogues from which to draw. Meanwhile, judges also complain that they are not historians, even turning to expert testimony to apply the Second Amendment after Bruen.
In this Article, we argue that Bruen’s intended methodological shift has been widely misunderstood by the bench and bar.[7] This has led to confusion and misapplication in the lower courts, as well as much scholarly criticism of the test that is, we think, misdirected. As we will explain, Bruen calls for a form of legal originalism, applying a classical view of fundamental rights as a form of unwritten customary law. This is consistent with the text and history of the Constitution and leads to results that are less mechanical and more sensible than many lower courts have thought. Understanding Bruen’s methodology requires three basic legal concepts: original-law originalism, constitutionalization of preexisting rights, and the general law.
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© 2024 William Baude & Robert Leider. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.
*Harry Kalven, Jr. Professor of Law, University of Chicago Law School.
**Assistant Professor of Law, Antonin Scalia Law School, George Mason University. The authors thank Eric Claeys, Adam Mossoff, Haley Proctor, and Richard Re for helpful comments on this draft, as well as the participants at a workshop at the George Washington University Law School. Will Horvath, James Marmaduke, and Georgios Sarris provided helpful research assistance.
[1]142 S. Ct. 2111 (2022).
[2]Id. at 2129, 2138–56.
[3]554 U.S. 570 (2008).
[4]Richard M. Re, Narrowing Supreme Court Precedent from Below, 104 Geo. L.J. 921, 962, 961–63 (2016).
[5]See Gould v. Morgan, 907 F.3d 659, 674 (1st Cir. 2018); Drake v. Filko, 724 F.3d 426, 440 (3d Cir. 2013) (alternative holding); Woollard v. Gallagher, 712 F.3d 865, 882 (4th Cir. 2013); Kachalsky v. County of Westchester, 701 F.3d 81, 101 (2d Cir. 2012). For historical approaches reaching the same result, see Drake, 724 F.3d at 432–33 (finding the regulation long-standing); and Young v. Hawaii, 992 F.3d 765, 813 (9th Cir. 2021) (conclusion after extensive historical analysis), vacated, 142 S. Ct. 2895 (2022) (mem.).
[6]See, e.g., Lara v. Comm’r Pa. State Police, 91 F.4th 122, 135 (3d Cir.) (examining analogues to laws that prohibited those under 21 years of age from carrying firearms), reh’g denied, 97 F.4th 156 (3d Cir. 2024); United States v. Daniels, 77 F.4th 337, 345–348 (5th Cir. 2023) (surveying drug and alcohol laws), petition for cert. filed, 92 U.S.L.W. 3085 (U.S. Oct. 10, 2023) (No. 23-376); Range v. Att’y Gen. U.S., 69 F.4th 96, 105 (3d Cir. 2023) (examining laws allegedly analogous to the felon-in-possession ban), petition for cert. filed sub nom. Garland v. Range, 92 U.S.L.W. 3084 (U.S. Oct. 5, 2023) (No. 23-374); Miller v. Bonta, No. 19-cv-01537, 2023 WL 6929336, at *19 (S.D. Cal. Oct. 19, 2023) (surveying laws allegedly analogous to modern assault weapons bans), appeal docketed, No. 23-2979 (9th Cir. argued Jan. 24, 2024); infra notes 193–95, 235.
[7]See Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment Adjudication, 133 Yale L.J. 99, 103 (2023); Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67, 78 (2023); see also Randy E. Barnett & Lawrence B. Solum, Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U. L. Rev. 433, 462–72 (2023) (correctly recognizing Bruen’s use of history as originalist, though understanding its methodology differently than we do here).