Bruen and Constitutional Gnosticism

Guest Blogger

This post was prepared for a roundtable on the Second Amendment, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Darrell A. H. Miller 

Many years ago, before he lost his religion, Sandy Levinson wrote a wonderful little book, Constitutional Faith. The monograph ran with the basic idea that our nation, the United States, has a “civil religion” organized around the Constitution, and that this is a faith to which we must all choose to subscribe. It was a remarkable meditation on a central conceit: insightful, learned, stylistically charming—all hallmarks of Sandy’s work. For a young academic who grew up around evangelicals but had come to admire the intellectual depth of Catholics and High-Church protestants, the book was brilliant and intuitive. 

In Constitutional Faith, Sandy constructed a two-by-two matrix of different interpretive tendencies or “strains.” One strain had to do with the sources of constitutional authority; the other with the persons and communities authorized to do the interpretation. “Protestant” tendencies focus exclusively on the written Constitution as the interpretive source; and legitimate acts of interpretation by individuals and non-specialist communities rather than hierarchical institutions (read “courts”). “Catholic” tendencies expand the sources of constitutional interpretation to non-textual traditions alongside the written Constitution; and repose authority in hierarchical institutions to settle matters of constitutional dispute.

Within this two-by-two matrix some approaches can be characterized as “protestant-protestant” (the authoritative source is exclusively the written Constitution and the interpretive community is non-hierarchical); some “protestant-catholic” (the authoritative source is exclusively the written Constitution and the interpretive authority is hierarchical); some “catholic-catholic” (the authoritative source is not exclusively the written Constitution and the interpretive authority is hierarchical) and others “catholic-protestant” (the authoritative source not exclusively the written Constitution and the interpretive authority is non-hierarchical). 

Once the grid is constructed, one can slot any given constitutional figure or opinion somewhere in this matrix. Justice John Marshall Harlan II in Poe v. Ullman relied on evolving traditions and a belief in the Court’s supreme authority to expound on that tradition, making him a “catholic-catholic” interpreter. Frederick Douglass in his 1860 Glasgow Anti-Slavery Society Speech argued slavery was unconstitutional because the word wasn’t used in the Constitution, and rejected judicial opinions to the contrary, making him a “protestant-protestant” advocate. 

Given this taxonomy of interpretive styles, how would we characterize Justice Clarence Thomas’s opinion in New York State Rifle and Pistol Association v. Bruen? The narrow issue in Bruen was whether New York’s discretionary “may-issue” licensing law violated the right to keep and bear arms. But the broader, more consequential issue, was what kind of tools are legitimate to interpret the Second Amendment. Ever since the Court’s watershed decision in District of Columbia v. Heller, lower courts had overwhelmingly converged on a two-part framework that applied history and categorical limits at step one and applied a conventional tailoring and scrutiny analysis in step two. 

In Bruen, the 6-3 majority rejected the two-part framework for a “text, history, and tradition”-only approach—one that evaluates the constitutionality of gun regulation solely by text and historical tradition, without reference to government interests or the efficacy of regulation to pursue those interests. As the Bruen majority said, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Modern regulations need not be “twin[s]” of historical regulations, but they must be sufficiently analogous to fit within that tradition, or they fail Second Amendment scrutiny. 

So where on this two-by-two matrix do we place Bruen? In one sense it sits in the catholic-catholic quadrant of the matrix. It’s tapping into a tradition and that tradition is composed of historical regulations expounded by the Court. But the Bruen majority discounted many of those historical regulations as insufficiently traditional. Some were too old, some too new; some covered too small a population; some were insufficiently criminal in nature; some were enacted by Reconstruction governments; some were enacted by machine politicians. Further, the majority relied heavily on the plain text of the word “bear” in the Second Amendment and insinuated that the plain text could answer most constitutional questions, and that, moreover, this is the belief of most Americans. So, it could sit at the protestant-protestant quadrant of the matrix. But my strong sense is that very few Americans think the word “bear” in the Second Amendment really encompasses all places weapons can be carried (like into an airplane or into a toddler’s day care class), and the Court seemed ready to dispense with any textual interpretation that would conflict with its prior rulings. 

Perhaps Bruen falls completely off the grid. It adopts a textual approach but rejects that textual approach when it conflicts Supreme Court precedent. It argues for the centrality of tradition but then spends pages explaining away evidence of that tradition. It assures us that modern laws have historical analogs but obscures what makes any given analog legally relevant. Given that Justices Samuel Alito and Brett Kavanaugh write concurrences that seem to limit Bruen to the facts of New York’s permitting law, it’s not even clear what the scope of this new decision is. Bruen is a cypher. 

Bruen, like some of the other opinions this term, may herald what we could call constitutional Gnosticism—an interpretive mode that’s arcane, Manichean, unpredictable and unfalsifiable. A form of constitutional reasoning that’s hostile to empirical knowledge, consequence, or descriptive fact. One that relies on invocations of history and tradition rendered through analogical reasoning so abstruse that the actual justification for any given outcome may remain forever unknowable. A mysterious doctrine, alienating to the hundreds of millions of people whose lives these decisions affect and inscrutable to all but a few elect who can divine the Court’s cryptic utterances. 

I sincerely hope that’s not the case. For if that’s what Bruen portends, then I fear we may all lose our faith. 

Darrell A. H. Miller is the Melvin G. Shimm Professor of Law and Faculty Co-Director of the Center for Firearms Law at Duke University Law School. You can contact him at dmiller@law.duke.edu.