Professor Robert Leider and I have a new article on the right to keep and bear arms available on SSRN. It is called The General Law Right to Bear Arms and it is part of a symposium in the Notre Dame Law Review. In brief, we argue that the Supreme Court's decision in NYSRPA v. Bruen has been misunderstood and therefore unfairly maligned. From the introduction:
New York State Rifle and Pistol Association v. Bruen marked an important methodological return to original legal principles. The legal issues in the case were whether the right to bear arms included the general right to carry handguns outside the home for self-defense, and if so, whether New York could restrict the carrying of handguns for self-defense to only those residents who had a special need for self-defense ("proper cause"). In answering these questions, however, the Court also made broad pronouncements about the correct way to decide the scope of the right to keep and bear arms, criticizing the methodological approach that had become common in the lower courts. Specifically, the Court emphasized the role of history and tradition, rather than what it called "interest balancing," and then proceeded to analyze the history of the regulation of arms-bearing for eighteen pages.
This was an attempt at an overdue doctrinal course correction. The Supreme Court first recognized an individual right to bear arms for self-defense in District of Columbia v. Heller. But since Heller, lower court judges had been "narrowing [Heller] from below." For example, in the name of intermediate scrutiny, lower courts had upheld laws that, in essence, prevented most citizens in those jurisdictions from exercising the right to bear arms at all.
Lower courts have since understood Bruen's text, history, and tradition test to require them to survey historical gun laws to determine whether modern laws have analogues in early American practice. And this presents a problem. The Framing era had few gun laws, and thus, few analogues from which to draw. Meanwhile, judges also complain that they are not historians, even turning to expert testimony to apply the Second Amendment post-Bruen.
In this Article, we argue that Bruen's intended methodological shift has been widely misunderstood by the bench and bar. This has led to confusion and misapplication in the lower courts, as well as much scholarly criticism of the test that is, we think, misdirected. As we will explain, Bruen calls for a form of legal originalism, applying a classical view of fundamental rights as a form of unwritten customary law. This is consistent with the text and history of the Constitution and leads to results that are less mechanical and more sensible than many lower courts have thought. Understanding Bruen's methodology requires three basic legal concepts: original-law originalism, constitutionalization of pre-existing rights, and the general law.
Original-law originalism maintains that our law today is a form of originalism. Like all forms of originalism, this looks to the past for evidence of today's constitutional law. Original-law originalism focuses more specifically on the law of the past. It holds that our law today is "the Founders' law, as it's been lawfully changed." This means that our law must trace a legal pedigree to the law of the founding and its own rules of legal change.
The constitutionalization of a pre-existing right means that sometimes, perhaps often, the Constitution's reference to a legal right must be understood by learning the historical customary law that defined and governed the right before its codification. Because the Constitution was not creating or defining these terms for the first time, but rather using the legal terminology and legal infrastructure of the day, one cannot entirely understand these rights just by parsing their semantic meaning. The "privilege of the writ of habeas corpus," to take a simple example, should be understood in light of centuries of law about the writ, not only by using a Latin-English dictionary to learn that "habeas" means "you have" and "corpus" means "the body." But the same may be true for many less simple examples, ranging from the right to due process, to the right to freedom of speech, to (indeed) the right to keep and bear arms.
The general-law approach to rights means that the scope of these pre-existing rights was sometimes defined by unwritten law that was neither state common law nor federal common law. Rather the general law – made famous by Justice Story's opinion about commercial law in Swift v. Tyson, and then made infamous by Justice Brandeis's opinion in Erie Railroad v. Tompkins – was a form of common law shared among Anglo-American jurisdictions, which could be expounded by any of them, but controlled by none of them. The general law approach applied not just to the law merchant or the law of torts, but to the fundamental rights of citizenship, and was an important part of the law of the Founding, as well as (one of us has argued) the original meaning of Section One of the Fourteenth Amendment.
These three legal concepts overlap and reinforce one another in important ways. The constitutionalization of pre-existing rights means that to understand the Constitution itself, we must understand the Constitution's legal background. Original law originalism tells us that we are bound by that original meaning of the Constitution, including the surrounding law, not just the semantic meanings of the words. And the general law approach tells us what kind of surrounding law that was, and how it might be applied over time to those bound by the Founders' law today.
While much of this apparatus was operating "under the hood" in Bruen, it shows what the Court was trying to say, and how the right to keep and bear arms should work today.
We also discuss the implications for 18 U.S.C. 922(g), which the Supreme Court will consider in United States v. Rahimi being argued next week:
