A concurring opinion from Judge Brett Kavanaugh, accompanied by Chief Justice John Roberts, emphasized that “the Second Amendment, when properly interpreted, allows for a variety of gun regulations,” citing a previous Supreme Court opinion stating that a large number of regulations “presumably remain lawful.” ,” including bans on weapons in the hands of criminals and in schools and rules against “dangerous and unusual” weapons.
But even if it turns out that way, the reputation of the court, whose sole power is reason, will almost certainly suffer, because Bruen’s new approach absolutely fails to provide a transparent way of connecting those historical laws to today’s circumstances. Whether an ordinance survives this historic test depends almost entirely on whether an individual judge thinks an ordinance written to address a modern problem “looks” like a historic problem. It’s an “I’ll know when I see it” approach to historical analogy.
It doesn’t have to be, and in most areas of constitutional law it doesn’t. Typically, courts conduct some sort of investigation to examine whether restrictions on constitutionally protected activity promote a legitimate government interest — such as the prevention of gun violence — without unduly burdening the protected right. Until last Thursday, the Second Amendment also worked this way.
Now, the Second Amendment — far from being a “second-class right,” as many gun-rights advocates complain — appears to be more isolated from modern legal requirements than almost any other constitutional provision.
Indeed, the court’s own application of the historic test threatens to create a one-way street in favor of increasingly comprehensive gun rights. For example, modern weapons are much more powerful than colonial-era muskets, but Judge Thomas indicated that these modern-day weapons probably fall within a category of constitutionally protected “weapons.” At the same time, current regulations that respond to the increased danger of modern firearms could lapse because they are not “analogous” enough to historical regulations.
Hours after the judges announced their decision in Bruen, the Senate passed the Bipartisan Safer Communities Act, the first federal gun law in about 30 years. Under Bruen’s purely historical test, whether the law actually makes communities safer does not seem constitutionally relevant. The new law was the result of a difficult but transparent debate on how best to achieve public safety while respecting constitutional rights. It is precisely this kind of open and accessible conversations about weapons that the court should strive for, rather than the opaque and judge-mighty it has decided to impose.
Joseph Blocher and Darrell AH Miller are professors at Duke Law School, co-directors of the Duke Center for Firearms Law, and authors of “The Positive Second Amendment: Rights, Regulation, and the Future of Heller.” They filed an amicus brief in Bruen in favor of neither side; it argued for the test used by the federal appeals courts but was rejected by the Supreme Court.