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:
This brings us to the Supreme Court’s currently pending case in United States v. Rahimi, a case reviewing the Fifth Circuit’s holding that 18 U.S.C. § 922(g)(8) – which forbids gun possession by those subject to domestic violence restraining orders – is facially unconstitutional. There is much to be said on the merits of the case but our central point here is one of methodology. The Fifth Circuit erred by analyzing the case at the level of overly specific analogies – too close to demanding the kind of “historical twin” or “dead ringer” that Bruen rejects.
Instead, the case should be approached at the level of general law principle – by asking not just who historically has been denied the right to arms, but why and to what extent. Section 922(g)(8), like many federal prohibitions, amounts to a total denial of the right for certain people. In evaluating the constitutionality of this ban, the most important questions are the public interests the state seeks to pursue and whether pursuing those interests with a complete ban on possession has a basis in general law principles.
For instance, then-Seventh-Circuit-Judge Barrett has derived from the historical sources a basic principle that “legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous.” As Barrett argued, this dangerousness principle can perhaps be gleaned from discussions at the state conventions to ratifying the original Constitution, and is certainly more plausible as a matter of Founding-era law than a broader principle of disarming all lawbreakers, or even all criminal felons. At the level of method, this is exactly the right kind of principle for adjudicating the right to keep and bear arms. It would be a defensible approach for the Court to take in analyzing 922(g) in Rahimi and future cases.
Applying a hypothetical general-law dangerousness principle would provide a reason to reject the Fifth Circuit’s approach in Rahimi. The Fifth Circuit found section 922(g)(8) facially unconstitutional. But section 922(g)(8)(C)(i) applies only to those restraining orders that “include a finding that” the defendant “represents a credible threat to the physical safety” of their partner or child – that is, a specific finding of dangerousness. If a general-law dangerousness principle exists, this provision certainly satisfies it. So (g)(8) as a whole would not be facially unconstitutional by depriving dangerous individuals of arms.
Assuming the dangerous principle is correct, the other half of section 922(g)(8) – (C)(ii) – presents a serious problem. That provision does not require any finding of dangerousness, applying to any restraining order that explicitly prohibits the use of physical force. To uphold (C)(ii) would require judges to give Congress a fair measure of freedom to regulate dangerousness prophylactically, even in cases involving a permanent and total denial of the right. That may be asking too much of the general law.
These questions, and this framework, will have application beyond Rahimi. The Court is already confronting multiple cases about the constitutionality of other federal prohibitions, including the prohibition on possession of guns by any felon. Again, something like the dangerousness principle would give the Court a tractable way to adjudicate the lawful scope of this statute. If the dangerousness principle is the lodestar, a complete lifetime ban on possession of a weapon by any felon is plainly too broad. Rather, the dangerousness principle would require more proportionality and tailoring between the government’s interests and the burden on the right. For one thing, it would support a distinction between some felonies and others. At the extremes, a murder conviction has long been thought obvious evidence of future dangerousness; but it seems impossible to imagine that a conviction for making false statements about stock transactions would be. Exactly where in between to draw the line is something the courts are currently debating and would eventually resolve in common law fashion.
For another thing, the constitutionality of Section 922(g) might be bolstered by – and might even require – an additional form of tailoring. A potentially important but moribund provision of federal law, 18 U.S.C. § 925(c), allows those who are prohibiting from possessing firearms to “make application to the Attorney General for relief from the disabilities imposed by Federal laws.” The “Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.” Section 925(c) also provides for judicial review of a denial of this application.
Taken seriously, this provision could do a great deal to render the various federal firearms provisions consistent with a hypothetical general-law dangerousness principle. Part of the standard for relief is basically a dangerousness principle (“likely to act in a manner dangerous to public safety”) and so this might be the appropriate legal channel for anybody who would otherwise have an as-applied constitutional challenge to the federal prohibitions.
However, for over thirty years, Congress has blocked the implementation of Section 925(c). As the Bureau of Alcohol, Tobacco, Firearms, and Explosives reports: “Although federal law provides a means for the relief of firearms disabilities, ATF’s annual appropriation since October 1992 has prohibited the expending of any funds to investigate or act upon applications for relief from federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, ATF cannot act upon applications for relief from federal firearms disabilities submitted by individuals.” And because ATF cannot review the petitions at all, the Supreme Court has held, judicial review is unavailable too. Implementing a general law approach through a dangerousness principle might force Congress to reconsider this intransigence and restore Section 925 to its original role, or else face the legal consequences. . . .
Whether and how the Court will implement these general law principles is something that will have to be left to future cases. Indeed, as in any common-law field, and so many other areas of law, it is difficult to fully assess a decision like Bruen until its meaning has been “liquidated and ascertained by a series of particular discussions and adjudications.” But our fundamental point is that this kind of general common law exposition is what Bruen calls for – not blanket deference to the legislature or the mindless parsing of historical analogies.