Originalism-by-Analogy and Second Amendment Adjudication
abstract. In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decision-making purported to constrain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts’ faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court’s recent grant of certiorari in United States v. Rahimi provides a much-needed opportunity for clarification and course correction. Without a more disciplined approach, the future of Second Amendment doctrine is dire, as is that of other areas of constitutional law where such tests take root.
This Article begins by explaining Bruen’s approach, which we call originalism-by-analogy. It shares some features with standard forms of originalism and traditionalism but also differs in the degree to which it requires judges to reason analogically directly from the historical record rather than, for example, using historical sources to identify the original public meaning of a constitutional provision. The Article then explains and addresses several challenges of originalism-by-analogy by bringing together two bodies of scholarship that have thus far had little overlap: the voluminous literature on originalism and the generations-old literature on analogical reasoning in law.
We distill three broad challenges for post-Bruen Second Amendment law and scholarship and suggest some partial solutions. First, courts applying Bruen must discern workable principles of relevant similarity—the sine qua non of analogical reasoning—to compare historical and modern laws. Second, doctrine must account for the fundamental differences between past and present, in part through careful attention to the level of generality at which the historical inquiry is conducted. Third, the approach must account for courts’ institutional limitations in conducting a difficult historical inquiry. This includes not overreading silences in the record and also recognizing that—precisely because it requires comparison of past and present—Bruen not only licenses regulatory change but preserves an important role for contemporary empirics and legislative deference.
authors. Joesph Blocher is Lanty L. Smith ’67 Professor of Law, Duke University School of Law. Eric Ruben is Associate Professor of Law, SMU Dedman School of Law. We are grateful to Albert W. Alschuler, Jennifer L. Behrens, Jacob D. Charles, Brannon P. Denning, Mark A. Frassetto, Pratheepan Gulasekaram, Darrell A.H. Miller, Michael Ramsey, Kelly Roskam, Reva B. Siegel, and Andrew M. Willinger for superb comments and critiques on early drafts of this Article. Khoa Nguyen and Maggie Gianvecchio provided invaluable research assistance.
The Supreme Court’s increasingly historical approach to constitutional-rights adjudication faces waves of criticism. Legal scholars and historians alike have highlighted the Court’s selective use of historical sources,1 the disconnect between those sources and modern challenges,2 the silence of most voices within the historical record,3 and even basic errors of historical fact.4 Many of these critiques track longstanding criticisms of originalism as an interpretive practice—perhaps the central battlefield in constitutional scholarship over the past few decades.5
One especially notable aspect of the Court’s recent turn to history is that it appears to depart from—or at least extend beyond—standard public meaning originalism, which has become the dominant version of originalist methodology.6 Rather than identifying the original public meaning of constitutional text7 (which might then be implemented through doctrinal tests8), judges applying this new method are supposed to analogizemodern laws directly to historical sources, unmediated by a legal rule or standard like the tiers of scrutiny. Though some scholars in the originalist literature have noted the difficulties of analogizing across time,9 the important differences between public-meaning originalism, traditionalism, and the historical-analogical approach—which we call originalism-by-analogy—have yet to be fully extrapolated or addressed.
An exchange between Justices Alito and Scalia in United States v. Jones10 helps illuminate the distinctions between standard public meaning originalism (championed by Scalia) and the historical-analogical approach (critiqued by Alito). In response to Scalia’s reliance on eighteenth-century legal tradition to assess whether using a GPS device to track a suspect’s car comports with the Fourth Amendment, Alito wrote that “it is almost impossible to think of late eighteenth-century situations that are analogous to” the use of GPS devices.11 Alito asked drily, “[i]s it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?”12 He observed the absurdity of that analogy: “This would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.”13 Scalia gamely responded that such a situation “is not far afield—a constable’s concealing himself in the target’s coach in order to track its movements.”14 But perhaps recognizing the strained nature of the historical analogy, he ultimately disclaimed the need to rely on analogical reasoning at all: “In any case, it is quite irrelevant whether there was an 18th-century analog. Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a search within the original meaning of the Fourth Amendment.”15
Justice Scalia’s sidestep to public meaning originalism,
however, seems unavailable under the historical-analogical approach in New
York State Rifle & Pistol Ass’n v.
Bruen.16 Rejecting the Second Amendment framework adopted throughout the federal courts of appeals—a test that relied on both history and scrutiny17—the Court held that contemporary gun laws must instead be evaluated solely by comparison to historical tradition.18 The Court emphasized that application of this new test would require not only historical citations, but historical analogy akin to the sort critiqued by Justice Alito and disclaimed by Justice Scalia in Jones. In fact, the Bruen majority used versions of the word “analogy” nearly thirty times.
From tiny constables to GPS devices, or from muskets to AR-15s,19 historical-analogical reasoning raises serious challenges, which are evident in lower courts’ faltering efforts to apply Bruen to modern gun laws. Although there is still time for courts to develop workable standards (as they did after District of Columbia v. Heller20), post-Bruen cases reveal an erratic, unprincipled jurisprudence, leading courts to strike down gun laws on the basis of thin historical discussion and no meaningful explanation of historical analogy.21 Some decisions upholding gun laws likewise seem adrift, with courts upholding the federal prohibition on gun possession by felons without addressing the well-recognized lack of early historical predecessors22 or concluding that firearm manufacturing receives no Second Amendment protection at all because “making” is neither “keeping” nor “bearing.”23
Whether one celebrates or condemns the outcomes in any given case, the new approach has generated wildly manipulable and unpredictable case outcomes.24 In the year after Bruen, courts reached divergent results regarding the constitutionality of laws banning people under felony indictment from acquiring new guns;25 prohibiting assault weapons,26 firearms with obliterated serial numbers,27 and large-capacity magazines;28 restricting self-manufactured “ghost guns”;29 disarming unlawful users of controlled substances;30 banning gun possession by people convicted of nonviolent felonies;31 barring guns in “sensitive places” such as places of worship, summer camps, urban mass transit, and Times Square;32 and prohibiting the purchase or carry of guns by eighteen- to twenty-year-olds.33 Perhaps most prominently, in United States v. Rahimi,the Fifth Circuit disagreed with other post-Bruen case law and struck down the federal law prohibiting those subject to a domestic-violence restraining order from possessing a gun, declaring it an “outlier that our ancestors would never have accepted”34—though every court prior to Bruen had done exactly that.
As this Article was in its final stages of editing, the Supreme Court granted certiorari in Rahimi,35 which will be briefed and argued as the Article goes to print. The case presents a tremendous opportunity for the Justices to correct some of the most significant developing trends in post-Bruen doctrine. Indeed, Rahimi exemplifies perfectly the three major challenges we have identified and addressed here: the essential task of articulating principles of relevant similarity, the importance and difficulty of managing anachronism through levels of generality, and a proper recognition of the judiciary’s institutional limitations. We do not expect the Court to explicitly revise Bruen. But Rahimi is an ideal chance to fix some attendant doctrinal problems before they spread further.
As a matter of legal scholarship, Bruen’s historical-analogical approach raises novel challenges for the relationship between law and history and implicates two rich scholarly literatures that, until now, have had relatively little interaction. For generations, scholars—some drawing on psychology and cognitive science—have attempted to both describe and evaluate analogical reasoning in law.36 But scholarship on analogical reasoning has tended to focus on similarity as “seen between cases”37 and not between laws and practices across time.38 In his enormously influential work on analogical reasoning, Cass Sunstein makes this distinction explicit: “In the United States, most constitutional cases are decided not by reference to constitutional text or history, but through analogies and thus through casuistical reasoning.”39
Meanwhile, the originalism literature has primarily focused on questions like why history should be binding,40 whether historical analysis is constraining,41 whether judges are well-positioned to perform it,42 and which historical materials matter.43 Some of that debate is implicitly about analogical reasoning; to critique an originalist opinion as anachronistic is to argue that there are insufficient principles of relevant similarity connecting historical sources to a contemporary legal challenge.44 But originalist scholarship has not thoroughly engaged with the literature on analogical reasoning, nor vice versa. Given the Court’s turn to originalism-by-analogy, such engagement has never been more essential.
In Part I, we explain Bruen’s method, which instructs that courts must evaluate the constitutionality of modern weapons laws by analogizing to historical predecessors. The majority opinion highlighted two nonexhaustive “metrics” to guide that comparison—“how” and “why” historical and modern laws burden armed self-defense—but also introduced a variety of additional and alternative principles.45 Whether Bruen’s approachcan be classified as originalist, traditionalist, or something else entirely depends on how one defines those interpretive methods—a deeply contested set of questions we do not purport to resolve. But whatever label one applies, originalism-by-analogy differs in important ways from standard approaches to historical reasoning, raising distinctive and unaddressed challenges.46
In Part II, we explore three of these challenges and offer some doctrinal solutions. First, as the Bruen majority recognized, “because ‘[e]verything is similar in infinite ways to everything else,’ one needs ‘some metric enabling the analogizer to assess which similarities are important and which are not.’”47 Indeed, the very essence of analogical reasoning is comparing two or more things by reference to principles of relevant similarity.48 While others have criticized Bruen’s impact on public safety49 and its reading of the historical record,50 our concern is that the opinion failed to provide, let alone apply, sufficient principles to guide the novel historical-comparative doctrine it created. It is thus unsurprising that many post-Bruen opinions look like conclusions accompanied by historical citations, with little connecting the two.51 We turn to the literature on analogical reasoning to help explain this shortcoming and why courts need to derive principles to mediate the analogical process.52
Second, by requiring direct comparison between modern and historical practices, the historical-analogical approach raises acute problems of anachronism.53 It is one thing to ask whether a historically derived right to armed self-defense can be legitimately burdened by a modern prohibition on gun possession in subways or airplanes; it is quite another to ask whether such prohibitions have analogues at a time before subways and airplanes existed. How can courts use historical comparators to evaluate the constitutionality of contemporary gun laws involving firearms or places that did not exist at the Founding, or which reflect recognition of problems (and, for that matter, people) the Framers failed to address? What historical analogues should guide evaluation of modern domestic-violence restrictions that were adopted specifically to break from a legal tradition that undervalued women’s lives?54
Originalism-by-analogy must be able to accommodate the immense differences between historical and modern weapons and violence, as the Court itself recognized in defining the class of “Arms” to include modern weapons.55 Adjusting the level of generality at which the historical inquiry is conducted can mitigate the risk of anachronism. For example, a court evaluating the modern domestic-violence prohibition might recognize a historical tradition of disarming dangerous persons generally,56 rather than domestic abusers particularly. There are good reasons to operate at a high level of generality to mitigate the risk of anachronism. But whatever level of generality a court selects, it should be evenly applied—not, for example, describing the right at a broad level of generality and then narrowly defining the set of relevant historical regulations.57
Third, and finally, originalism-by-analogy should be applied with attention to at least two matters of institutional competence.58 First, courts should be careful about basing broad decisions on a supposed lack of historical evidence, given that they simply do not have the time or ability to identify all the relevant historical comparators. Neither do professional historians, whose research programs do not conform to a court’s briefing schedule.59 A relative dearth of historical evidence might simply reflect institutional limitations, not constitutional analysis. Second, and to a degree that has been underappreciated by both those who criticize and those who celebrate it, the historical-analogical method actually relies on contemporary empirical evidence. Bruen specifically requires that modern and historical laws be compared with regard to “why” and “how” they burden armed self-defense, and conducting that comparison without evidence regarding the justification and operation of the modern laws—matters on which legislative deference may be appropriate—is impossible.
In the wake of Bruen, courts face a Second Amendment “terra incognita” akin to that following District of Columbia v. Heller.60 Addressing the challenges we identify is the first step toward articulating coherent and meaningful legal rules, and Rahimi presents an incredibly valuable opportunity to do so. To the degree that Bruen and other cases from the 2021-2022 Term are a harbinger of a broader change in the Supreme Court’s approach to history and constitutional law,61 grappling with originalism-by-analogy will be a central challenge for many years to come.