Dangerous, but not Unusual: Mistakes Commonly Made by Courts in Post-Bruen Litigation
When the U.S. Supreme Court decided New York State Rifle & Pistol Association v. Bruen, it provided the lower courts with a detailed roadmap to ensure proper application of the text-first and history-second methodology employed by the Court in the Second Amendment context since District of Columbia v. Heller. Yet notwithstanding the Court’s explicit directions, many lower courts fail to follow Bruen and either take a wrong turn or implement their own shortcuts when deciding constitutional challenges to modern-day firearm restrictions. Some of these cases arose as challenges to gun control laws enacted pre-Bruen; other cases are challenges to laws enacted after Bruen and in seeming defiance of that decision. This article seeks to clarify some of the confusion that has arisen post-Bruen, and to explain how the Supreme Court’s clear reasoning and instructions in Bruen—and Heller before it—provide direct and simple guidance that lower courts are bound to follow in cases implicating the constitutional right to bear arms.
At the outset, the Bruen decision marks a dramatic move by the Supreme Court to put Second Amendment jurisprudence back on the right track. Following the Heller decision in 2008, which embraced an originalist text-first, history-second interpretive approach, many lower courts declined to follow Heller’s originalist methodology. Instead, those courts imported interest balancing tests, such as intermediate scrutiny, from the context of the First Amendment. By balancing the government’s asserted interest in “public safety” against the degree that a law infringes on the right to keep and bear arms, it was possible to guarantee that in virtually every case the government would win, and fundamental constitutional rights would be eroded. That happened even though Heller expressly rejected interest-balancing.
Fourteen years later, Bruen made it clear beyond any doubt that interest balancing cannot be used to decide Second Amendment cases. It instructed that the plain text of the Second Amendment must be faithfully followed, and that the government bears the burden to justify any modern regulations, if it can, using historical analogue laws. In applying Bruen, the Court in United States v. Rahimi again rejected interest-balancing as an acceptable Second Amendment framework for the lower courts to apply.