Wednesday, July 06, 2022

Text, History and Tradition: Discussion Questions on New York State Rifle And Pistol Association, Inc. v. Bruen


Here are the discussion questions for New York State Rifle And Pistol Association, Inc. v. Bruen that will appear in this year’s Levinson Balkin Con Law supplement. These questions arose out of conversations with my colleague Reva Siegel. 

I want to point out that one of the most important methodological developments is a sea change in originalism practiced at the Supreme Court. The old formula for originalists was “text, history, and structure.” The new formula that appears to be emerging is “text, history and tradition.” 

As noted below, there are important differences between originalism and traditionalism, and sometimes the two are actually at cross-purposes. However, the Justices are blurring these distinctions, and it will be interesting to see how conservative originalists in the academy respond to the Court’s focus on traditionalism. 

 In my 2013 article, The New Originalism and the Uses of History, I argued that regardless of the theories that academic originalists offer, originalist arguments by courts are hybrids, which include, whether explicitly or implicitly, appeals to national ethos, tradition, and honored authority. This Supreme Court Term confirms this tendency. 

 Another very interesting feature of Bruen is that Justice Thomas doubles down on the notion that originalist judges and Justices don’t have to be historians to practice originalism well, because they can just rely on the briefs submitted by the parties and amici. (See n.6 of Thomas’s opinion: “[i]n our adversarial system of adjudication, we follow the principle of party presentation.” United States v. Sineneng-Smith, 590 U.S. ––––, ––––, 140 S.Ct. 1575, 1579, 206 L.Ed.2d 866 (2020). Courts are thus entitled to decide a case based on the historical record compiled by the parties.”.) This passage in Bruen is likely to spark a great deal of academic writing, as it should! 

* * * * *

 1. Text, history and tradition. Bruen exemplifies how the Court’s conservative Justices have tended to merge originalist arguments with arguments from tradition. 

Original meaning and tradition are not the same thing. Originalists generally look to the meaning or understanding of texts at the time of adoption. A focus on tradition is a bit different: instead of looking at meanings or understandings, it looks at the continuity of practices over long periods of time. Traditions do not have to begin at any particular point in time and they may change over time. For example, if a right was not recognized at the Founding but there is a long tradition of protecting it that developed in the 1880s, there would not be an originalist argument for the right but it there would be an argument from tradition. 

Thomas’s text and history test tends to merge considerations of original meaning and tradition. He argues that people have a presumptive right to engage in conduct covered by the amendment’s text. Government may only regulate this conduct if there is a historical tradition of regulating it. By “this Nation’s historical tradition of firearm regulation,” he means a tradition of firearm regulation existing at the time of the adoption of the Second Amendment—or possibly at the time of adoption of the Fourteenth Amendment, which applies the Amendment to the States. Thomas’s opinion does not decide whether we look to the tradition of regulation as of 1791 or 1868. Instead, his opinion runs these two periods together, assuming that they constitute a single unbroken tradition. What should the Court do if the tradition of regulation is different in the two eras? 

2. The problem with tradition. Tests based on tradition tend to have three problems. The first is that arguments about tradition are told from the perspective of the present, and necessarily involve stories we tell ourselves about what the past must have been like. But because human behavior over a wide range of places and times may not actually fit neatly into a simple cohesive narrative, courts must tell a story that overlooks or excludes certain features of the past as not counting or as exceptions. (Thomas does this, for example, with Texas’s 19th century regulations). 

Second, arguments for following tradition assume that the tradition is wise or morally worthy from today’s perspective. But if the tradition is outmoded, premised on facts that no longer hold true today, or reflects immoral or unjust practices, it is not clear why we should follow the tradition today. So, for example, the practices of gun regulation in the late eighteenth century assumed weapons that were far less powerful, agile, and effective than today’s guns, operating in much less densely populated areas. They may also have reflected different moral assumptions about violence. 

Third, if we are using tradition only as evidence of original meaning, it is not enough to show that a practice existed. One must also show that people self-consciously understood the practice—which might be quite different in diverse contexts and places—to be part of the meaning of the text that they adopted. In the case of firearm regulation, this may be very difficult to do.

3. A theory of constitutional rights. Thomas argues that his text and history approach to Second Amendment rights “accords with how we protect other constitutional rights.” But it is very hard to credit this, especially in areas like the First Amendment’s Free Speech Clause or the Equal Protection Clause. These clauses are governed for the most party by various tests of scrutiny. 

Thomas argues that the substantive content of a constitutional right is determined by its scope at the time of adoption. Under this approach, for example, the substantive content of the Equal Protection Clause (for example) would be determined by the kinds of laws and practices in place in 1868. Given what you have learned so far in this course, do you agree that this is how the Court interprets the Constitution generally? 

4. One step, not two. As Justice Thomas notes, the courts of appeals had converged on a two-step test which the Court rejects. The first step asked whether the regulated activity was even within the scope of the Second Amendment at the time of adoption. If not, then the regulation is upheld. If the activity is within the scope of the right, or the question is uncertain, the second step applies intermediate scrutiny (or strict scrutiny if the regulation strikes at the core right to possess guns for self-defense in the home.)  Note that the two-step test gives the government two ways to win. The government can show that the activity in question was not protected (or was regulated) at the time of adoption, or the government can show that its regulation passes judicial scrutiny. 

Thomas rejects this test, presumably because it allows too much regulation. His new “one-step” test presumes that government may not regulate activity described by the text (i.e., keeping and bearing arms) unless there is an adoption-era tradition of regulating it. This places the burden of proof on the government, making it easier for the government to lose. 

5. The Heller caveat. Justice Kavanaugh’s concurrence recites two paragraphs and a footnote from Heller and McDonald that list a set of “longstanding” firearm regulations that are deemed constitutional. These include restrictions on felons, the mentally ill, on carrying guns in “sensitive places,” and “laws imposing conditions and qualifications on the commercial sale of arms.” As Justice Breyer points out in dissent, several of these regulations did not exist at the time of adoption. They make sense from the standpoint of following tradition, but not necessarily from the standpoint of following the original meaning. Once again, the Court’s opinion tends to run the two together. 

6. History, not scrutiny rules. Justice Thomas argues that his historical approach is superior to using levels of scrutiny—as courts do, for example, in equal protection doctrine. Scrutiny rules empower judges to uphold regulations based on their case-by-case assessment of the utility of a particular regulation and the benefits and dangers to the public. Thomas argues that this approach makes it too easy for judges to defer to legislatures, and it gives them too much power to read their personal judgments into the law. Instead, “reliance on history to inform the meaning of constitutional text … is, in our view, more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field.” 

One might respond that judges are no better at being professional historians, and that they are likely to view history selectively to read their personal judgments into law. (Compare Justice Thomas’s and Justice Breyer’s dueling accounts of history in this case.) 

Why are judicial inquiries into the details of early historical practice better able to resolve questions of contemporary liberty and public safety than debates about the real-world effects of guns and gun regulations in the present? Thomas responds that the Framers already struck a balance between liberty and safety. But if their command is ambiguous or unclear, why should contemporary judges reject contemporary factual evidence? Put another way, why doesn’t the Constitution’s own language—which announces an abstract right—delegate to current generations the task of figuring out how best to secure the right to keep and bear arms in contemporary circumstances? 

Thomas’s response is that the balance between liberty and safety “struck by the traditions of the American people … demands our unqualified deference.” That is, the meaning of the Amendment incorporates the balancing done by Founding-era (or Reconstruction-era) legislatures. But as cities have gotten larger and more densely populated, more powerful and accurate kinds of weapons have been invented, and social contexts have changed, legislatures have continued to try to balance liberty and safety. Why should the early legislative attempts at balancing liberty and safety in very different social and technological contexts be baked into the meaning of the Amendment today? 

7. Judges as historians. Thomas concedes that judges cannot do comprehensive historical research themselves. This may be especially problematic for lower court judges, who, unlike the Supreme Court, cannot control the size of their own docket and have fewer clerks.  Justice Thomas argues that this is not a problem, because judges will rely on the briefs of counsel and amici. Do we have reason to believe that counsel and amici will not read history selectively? After all, lawyers make arguments to win cases for their clients and for the causes they represent. 

Can we rely on competition between the two sides of a lawsuit to give judges a sufficiently comprehensive and objective view of the historical materials? What features of history are likely to be left out of briefs by competing litigants? Will judges be tempted to pay more attention to evidence from counsel and amici they trust (because of ideological sympathies, for example), while discounting contrary evidence from the other side? 

8. Analogy, not scrutiny rules. Justice Thomas acknowledges that contemporary legislatures responding to contemporary problems may pass laws that may not be identical to those existing at the time of adoption. For this reason, he explains that judges will sometimes have to reason by analogy to decide whether today’s regulations are sufficiently similar to regulations in the past. He suggests that the central question is “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified” But what is “comparable” and “comparably justified” may look different to a person generally skeptical of gun regulation and a person who believes guns pose a significant threat to public safety. One might also want to take into account differences in the destructive power and reloading speed of modern weapons, as well as the far more densely packed environment of contemporary American cities. How successful do you think Thomas’s embrace of analogical reasoning will be in cabining judicial discretion or preventing judges from reading their ideological priors into the law? 

9. Precedent and bad history. Suppose that the Supreme Court (or a circuit court) reaches a historical conclusion that is later discovered to be incorrect in the view of professional historians and historical linguists. May a later court reject the earlier historical conclusion, it or is it “baked-in” as precedent that lower courts must accept as historically correct? (Note, for example, that although Justice Breyer believes that Heller’s historical analysis is dubious, he accepts Heller as precedent.) Why should courts’ historical conclusions be subject to stare decisis? On the other hand, if earlier courts’ historical conclusions can be revisited, won’t that make precedents insecure? 

10. May issue and shall issue. As Justice Breyer points out, there is a spectrum of different positions between “may issue” and “shall issue” jurisdictions. For Justice Thomas, what matters constitutionally is that legislation employ “‘narrow, objective, and definite standards’ guiding licensing officials, rather than requiring the ‘appraisal of facts, the exercise of judgment, and the formation of an opinion.’” Why should objective standards not require appraisal of facts? 

Suppose a jurisdiction has objective standards but they are burdensome. For example, suppose instead of requiring a short (say 15 hour) course on gun safety as some jurisdictions do before granting a license, they require a 50 hour course, as well as ten signed character references and proof of a certain level of target accuracy? How should courts assess these questions? 

11. Sensitive places. Justice Thomas follows the Heller caveat when he notes that legislatures may regulate the presence of guns in “sensitive places,” but he rejects New York’s claim that the entire island of Manhattan is such a place. What is a “sensitive place” in 21st century America? What kind of showing must a government make? 

In response to Bruen, New York state quickly passed a new gun control law. See Reuters, Factbox: What's in New York's new gun laws after Supreme Court ruling?, Reuters, July 1, 2022, The new law defines as sensitive places government buildings, medical facilities, places of worship, libraries, playgrounds, parks, zoos, schools, summer camps, addiction-support centers, homeless shelters, nursing homes, public transit including the New York City subway, places where alcohol or marijuana is consumed, museums, theaters, stadiums, polling places and New York City's Times Square. It also provides, as a default rule, that guns are not allowed in private businesses unless the owner allows it. Are any or all of these restrictions constitutional under Bruen? 

12. Weapons in common use. Justice Thomas also follows Heller in noting that the Amendment protects only weapons in “common use” today. How do we tell if a weapon is in common use? Consider the AR-15 semiautomatic rifle used in several recent mass shootings. The 1994 Federal Assault Weapon Ban signed into law by President Clinton banned certain models of the AR-15, but it did not ban all semi-automatic weapons and had many loopholes. The law expired in 2004, and since then the AR-15 has become one of the country’s most popular weapons. See Jon Schuppe, America's Rifle: Why So Many People Love the AR-15, NBC News, December 27, 2017, 

If a weapon is owned by many people, is it irrelevant how powerful it is? Conversely, if a weapon can allow a person to cause a great deal of damage, is it irrelevant how many people own one? Or do we balance these considerations (and possibly others as well)? For discussions of regulations of semi-automatic rifles in the lower courts, see Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017); Heller v. District of Columbia (Heller II) 670 F.3d 1244 (D.C. Cir. 2011); id. at 1288-1291 (Kanvanaugh, J., dissenting). 

13. New regulations. How will Bruen’s test apply to new kinds of regulations that have no obvious analogue in the Founding era? For example, “red flag” laws permit police to petition a state or local court to order the temporary removal of firearms from a person who they believe may present a danger to others or themselves. Some states may impose limits on persons who have engaged in domestic abuse (but who are not convicted felons). Others may impose age limits on certain types of guns but not others. 

Some of these laws may fall within the Heller caveat. But if not, then one must search for historical analogies at the Founding (or Reconstruction). If none exist, then legislatures cannot use these devices to protect public safety. Justice Kavanaugh’s concurrence, joined by Chief Justice Roberts, is written to assuage concerns on this score and to suggest that the Justices will not strike down sensible regulations. But it is not clear how the Court’s new historical test interacts with these assurances. Moreover, most constitutional challenges will not be decided by the Supreme Court. They will be decided by lower courts, who must analyze the new test of Bruen and apply it to a range of novel regulations. 

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