Bruen and the Founding-Era Conception of Rights

J. Joel Alicea*

New York State Rifle & Pistol Ass’n v. Bruen heralded a potential revolution in the Supreme Court’s approach to adjudicating constitutional rights, rejecting judicial interest-balancing tests like the tiers of scrutiny in favor of a text-and-history methodology. Bruen staked the legitimacy of its methodology on its ability to faithfully capture the original meaning of the Second Amendment, yet Bruen never defended the historical accuracy of the conception of constitutional rights on which it rests.

Bruen’s conception of rights cannot be taken for granted in light of recent scholarship by Jud Campbell, Jonathan Gienapp, and Jamal Greene challenging many of the assumptions about rights undergirding Bruen’s methodology. These three scholars, whom I will refer to as the “rights revisionists,” argue—to varying degrees—that the Founders placed much less importance on the text of the Bill of Rights than modern rights jurisprudence tends to do and viewed many constitutional rights as subject to extensive regulation by the political process, rather than serving as trumps on government action. Campbell and Gienapp have criticized Bruen for being premised on an ahistorical conception of rights, taking direct aim at Bruen’s claim to legitimacy.

Thus far, no scholar has answered the rights-revisionist critique of the conception of rights Bruen assumes. But the critics of Bruen’s methodology are mistaken. By describing the text as a “mere placeholder,” they overlook Campbell’s own descriptions of how the Founders understood the role of the text. By accusing Bruen of undercutting democratic governance, they misunderstand Bruen’s methodology. And by disparaging Bruen’s historical analysis because it assumes that rights generally operated as trumps on government action, they overstate the extent to which constitutional rights were seen as regulable by legislatures. On each of these points, Bruen’s methodology is not only grounded in the Founding-era conception of rights; it is potentially consistent with the rights revisionists’ own account of rights at the Founding.

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© 2026 J. Joel Alicea. 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 author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*St. Robert Bellarmine Professor of Law, The Catholic University of America, Columbus School of Law. This Article is adapted from the Herbert W. Vaughan Lecture on America’s Founding Principles that I delivered at Princeton University on May 1, 2025. I thank Randy Barnett, Charles Capps, Jud Campbell, Donald Drakeman, Sherif Girgis, Philip Hamburger, William Kamin, Gary Lawson, Steven Lindsay, Vincent Phillip Muñoz, John Ohlendorf, Pete Patterson, Haley Proctor, Chief Judge William H. Pryor, Jr., Kevin Walsh, and Derek Webb for comments on earlier drafts. I also thank William Kamin, Steven Lindsay, and Haley Proctor for helpful conversations. I am grateful to the Yale Federalist Society for hosting a discussion on this paper featuring me and Jud Campbell. Finally, I thank Alex Kagan, Zach Novak, and Gerald Sharpe for very helpful research assistance.