New York State Rifle & Pistol Association, Inc. v. Bruen

Written by Joseph Blocher and Darrell A.H. Miller (two professors at Duke Law School), July 2022:

[T]he larger problem with the decision is the reasoning that underpins it, which will have far-reaching consequences for Second Amendment doctrine. The majority rejected the Second Amendment analysis adopted throughout the federal appellate courts — which evaluated both history and contemporary evidence — and instead endorsed a purely historical approach that diminishes, if not eliminates, the relevance of the real-life costs and benefits of gun regulation.

From now on, the constitutionality of firearm regulations, like prohibitions on guns on airplanes or in the hands of domestic abusers, will depend solely on whether they are, in some ill-defined sense, “analogous” to a historical regulation, not whether they are effective in preventing serious harms.

Written by Saul Cornell (the chair in American history at Fordham University), June 2022:

It is particularly noteworthy that Justice Stephen Breyer called out his colleagues for engaging in the most rank form of law-office history in his dissent. Although it has become common, almost routine, for scholars to catalog the embarrassing quality of the current Supreme Court’s uses of history, it is unusual to see a sitting justice level this charge against others on the court in a published opinion. It is hard to dispute Breyer’s negative characterization of his colleagues’ tendentious, error-filled, and highly selective culling of evidence to vindicate their gun-rights agenda. Bruen does mark a new low for the court.

... Perhaps the most egregious distortion of the historical record occurs in the majority’s false claims about regulation during Reconstruction. Evidence of robust regulation of guns in public featured prominently in the briefs filed in the case, but the majority either dismisses contrary evidence as unrepresentative or simply ignores evidence it finds inconvenient. Here is what Thomas says about Texas, a state whose robust gun laws, he reluctantly concedes, undeniably support New York’s approach to public safety. “We acknowledge,” Thomas wrote, “that the Texas cases support New York’s proper-cause requirement, which one can analogize to Texas’ ‘reasonable grounds’ standard. But the Texas statute, and the rationales set forth in English and Duke, are outliers.”

The originalist methodology applied by Thomas has one set of rules that apply to interpreting legal texts that support gun rights, and another more demanding set of standards that apply to those that undermine them. The Thomas version of originalism might be summarized as follows: No amount of evidence is enough to support gun control, but no iota of evidence is too little to legitimate gun-rights claims. If one of the goals of originalism was to limit judicial discretion (a value few originalists continue to espouse now that they have a supermajority on the court), then the Thomas rule does the opposite. It provides a license to cherry-pick evidence with reckless abandon if the materials support the ideological agenda of the Federalist Society.

"Facts Still Matter, Even Before This Supreme Court", written by Rosanna Smart (RAND Corporation), Darrell A.H. Miller (professor at Duke), and Andrew R. Morral (RAND Corporation), October 2022:

This would, at first blush, seem to leave no room for scientific evidence on policy effectiveness—no opportunity to weight benefits and costs to society while showing, with data, whether regulations succeed or fail at achieving a specific government interest, such as public safety.

And yet, consigning all modern gun regulation to a game of "What would James Madison have thought of AR-15s" is not the inevitable result of the Bruen decision. There is still room for research to inform court decisions about firearm regulations. It's just that such scientific information will have to be framed in a different way than before. Call it historical translation.

There is, for example, a long history of preventing dangerous persons from possessing firearms. Granted, during the founding era, African-Americans, Indigenous Americans, and Catholics were all categorized as "dangerous." But the fact that the framing generation used bigoted stereotypes does not diminish the broader, less odious principle: That dangerous people shouldn't have guns. If we understand the principle at the founding era as prohibitions on dangerousness, then this seems like an area with a clear role for empirical evidence under the historical translation framework.

TODO — read these other articles, and see if I can understand them:

"Bruen, Analogies, and the Quest for Goldilocks History", Jake Charles (associate professor at Pepperdine Caruso Law), Jun 28, 2022
(list of more things to read)