Charles on Bruen

Patrick J. Charles (Government of the United States of America - Air Force) has posted The Fugazi Second Amendment: Bruen's Text, History, and Tradition Problem and How to Fix It (Cleveland State Law Review, Vol. 71, No. 3, 2022) on SSRN.  Here is the abstract:

In New York State Rifle & Pistol Association v. Bruen, by a vote of 6-3, the Supreme Court held that the “Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home,” and any state or local laws that condition the “issuance of a license to carry on a citizen’s showing of…special need” are thereby unconstitutional. The decision is remarkable in several respects. For one, Bruen upended a regulatory regime that has existed since the mid-to-late nineteenth century—a regime that was instituted and sustained by lawmakers to preserve the Second Amendment, not violate it. What is also remarkable about Bruen is the manner historical evidence was marshalled, selected, and analyzed. Rather than examine all the historical evidence objectively and at face value, Bruen made it quite clear that “not all history is created equal,” and therefore conveniently cherry-picked whatever historical evidence supported broad carry rights and rejected or explained away any evidence that did not.

This criticism of Bruen should not be construed to mean that the Supreme Court was jurisprudentially wrong to strike down New York’s “may issue” concealed carry regime. Far from it. As this author pointed out following oral argument, the Court could legitimately come out in favor of either party. It all boiled down to how the Court framed the case—whether it be narrowly as a concealed carry case or broadly as a public carry case —and which historical periods or pieces of historical evidence the Court perceived as being outcome determinative. And given that the Court ultimately decided to frame the issue in Bruen broadly, the outcome is not all that surprising. The reality is New York’s “may issue” concealed carry regime was a tough pill to constitutionally swallow. As the Bruen majority noted, outside the Second Amendment context, it is virtually unheard of today for government officials to have such wide discretion in doling out who may and may not exercise a constitutional right.

Where Bruen severely falters, however, is in its use and application of history. It is difficult to say what history-based jurisprudential methodology Bruen employs. On its face, Bruen appears to be grounded in public meaning originalism. Yet at several points the Bruen majority picks and chooses historical evidence on little more than a whim. Yet no matter how Bruen is methodologically classified—whether it be originalist or some other history-based form of constitutional interpretation—the fact of the matter is that the 6-3 majority’s historical approach is neither objective nor holistic. To be blunt, Bruen fails to adhere to even basic academic standards. The length in which the Court margin walks history and then claim that virtually all the relevant evidence points in one direction is particularly worrisome. In this author’s opinion, it proves once and for all that history is not so much a constitutional guardrail as it is a jurisprudential pawn in the wider debate over the Constitution’s meaning. Equally concerning are the interpretative historical rules laid down in Bruen, for they appear to stack the constitutional deck against firearms regulations moving forward. Even worse, these interpretative rules blatantly set aside even the appearance of historical accuracy, objectivity, and transparency, and therefore, if adopted by the lower courts wholesale, will assuredly undermine the legitimacy of Second Amendment jurisprudence moving forward. The way this author sees it, Bruen has created a new, fugazi Second Amendment. And by fugazi, what is meant is that the Second Amendment, at least as articulated by Bruen, is historically ruined and fake.

This article will expound on how the Supreme Court’s opinion in Bruen has created a fugazi historiographical crisis of its own making. To highlight Bruen’s historical flaws, this article will first examine and unpack several of the majority’s history-based arguments and justifications. This article will then expound on why the majority’s text, history, and tradition guidance create several problems for the lower courts moving forward, including the soon to be highly contested “sensitive places” doctrine. This article is broken into three parts. Part I critically examines how and why the Supreme Court’s opinion in Bruen is historical fugazi. Part II then critically examines Bruen’s hypocritical approach to text, history, and tradition, and how said approach ultimately facilitates analytical double standards. Lastly, Part III offers the lower courts (and hopefully the Supreme Court) some guidance on objectively resolving the many unanswered text, history, and tradition questions left in the wake of Bruen, and then applies that guidance to the “sensitive places” doctrine.