J. Joel Alicea, “Bruen Was Right,” 174 U. Pa. L. Rev. (forthcoming 2025), units forth a complete protection of the text-history strategy and rejection of means-scrutiny set forth in Justice Clarance Thomas’ opinion in Bruen. A professor on the Columbus College of Legislation, Alicea is the director of the Middle for the Structure and the Catholic Mental Custom.
Some students argue that Bruen was a mistake. An exception Alicea cites is William Baude & Robert Leider, “The Basic-Legislation Proper to Bear Arms,” 99 Notre Dame L. Rev. 1465 (2024). My very own humble defense of Bruen is about forth in “Textual content and Historical past, Means-Ends Scrutiny, and the Second Modification,” 24 Fed. Soc. Rev. 54 (2023). Alicea’s article deserves a deep examine which I can solely skim the floor right here.
As Alicea explains, the bigger significance of Bruen “is in its rejection of exams like strict or intermediate scrutiny which have loomed giant in rights jurisprudence because the Sixties. Of their place, Bruen substituted a text-and-history-based check for evaluating the constitutionality of arms laws that, if profitable within the Second Modification area, holds out the prospect of displacing the tiers of scrutiny and different judicial balancing exams elsewhere in constitutional legislation.” But when this “most thoroughgoing try by the Court docket to do originalism within the space of constitutional rights” fails, “it calls into query originalism’s capability to transition from a important posture to a governing one, not less than within the rights area.”
Earlier than outlining the article, I am going to point out two circumstances citing Alicea about which readers could already be acquainted. In NRA v. Bondi (eleventh Cir. 2025) (en banc), Chief Decide William Pryor sought to justify Florida’s legislation subjecting individuals aged 18 to twenty to imprisonment for buy of a firearm primarily based on this supposed analogue: “Founding-era legislation precluded people beneath the age of 21 from buying arms as a result of they lacked money and the capability to contract.”
However Alicea added to the above quote: “That being stated, … I’ve not come throughout proof of a precept that was usually held to be a part of the Second Modification proper however that didn’t make its approach into some type of optimistic legislation.” In truth, neither the frequent legislation nor Founding-era statutory legislation made it a criminal offense for a minor to purchase a firearm, and certainly the Militia Act of 1792 required each male citizen 18 and over to “present himself with a very good musket or firelock.” By counting on civil legal guidelines involving the capability to contract, Chief Decide Pryor “view[ed] a practice at too excessive a stage of generality,” as Alicea would say. Bruen’s Footnote 11 cautions in opposition to any such reasoning when it stated “[t]o the extent there are a number of believable interpretations of [the scope of our Second Amendment rights], we are going to favor the one that’s extra in line with the Second Modification’s command.”
Alicea was extra appropriately cited by Decide Ryan Nelson, dissenting in Duncan v. Bonta (ninth Cir. 2025). As I defined in a post, the bulk upheld California’s ban on possession of {a magazine} holding over ten rounds on the idea {that a} journal is a mere “accent,” not an “arm” beneath the Second Modification’s textual content, and that plaintiffs had not proven that such magazines are in “frequent use” beneath Bruen‘s Step One, the textual evaluation. However as Decide Nelson cites Alicea as clarifying, “Conducting the common-use inquiry at step one ‘could be at odds with the truth that the common-use check isn’t concerning the semantic which means of the Second Modification’s plain textual content.'”
That is a very good lead in to Alicea’s evaluation of Bruen‘s Step One, the textual evaluation, which first asks whether or not the individuals are a part of “the individuals,” whether or not handguns (or magazines, in Duncan) are “arms,” and whether or not carrying handguns for self-defense in public constitutes “bearing arms.” Second, Bruen assumes that Heller carried out the entire historic work at Step One. Third, Step One covers whether or not the Second Modification is implicated (much like asking whether or not “speech” is being regulated beneath the First Modification). And fourth, if profitable beneath Step One, the burden shifts to the federal government to show the constitutionality of the restriction.
A consequence of the above is that, “if the common-use check applies at Step Two, the federal government would have the burden of proving that an arm isn’t in frequent use, reasonably than the burden being on the challenger to show that an arm is in frequent use.” This turns into clearer beneath Bruen‘s evaluation of the operative clause. “At Step One, it doesn’t matter whether or not the particular person in query is a law-abiding citizen or a felon, whether or not the thing in query is a handgun or a machine gun, or whether or not the conduct in query includes bearing an arm for self-defense or bearing an arm to commit a criminal offense.” One should go to Step Two to find out if there’s a historic custom of banning violent individuals from gun possession, of prohibiting harmful and strange weapons, and of carrying arms for felony functions.
That results in Step Two, the historic evaluation, by which courts purpose analogically to match a contemporary restriction with the historic custom of firearm regulation. This inquiry is originalist, however doesn’t require the identical historic legislation to justify the trendy legislation, so long as in line with the identical rules. An excellent instance of a historically-justified delicate place is on board a industrial plane.
“Bruen‘s key transfer is to relocate who determines the suitable means and finish, largely taking this process away from judges and giving it again to the ratifiers.” Against this, beneath tiers of scrutiny, judges determine whether or not the state’s curiosity is compelling and, for slim tailoring, whether or not the means are proportional to the ends.
Alicea categorizes three principal criticisms of Bruen at Step Two. First is the Fallacy from Absence. The place there may be historic silence, why ought to the state bear the burden to justify a restriction? For one factor, “placing the burden on the rights-claimant at Step Two could be asking the rights-claimant to show a unfavourable: that there was no historic restrict on the precise the claimant asserts.” Furthermore, the Second Modification codifies a preexisting proper, creating the presumption that the lined conduct is protected. Moreover, that is how different constitutional rights like speech are handled. “The distinction is that Bruen—true to its originalist premises—requires historic assist to beat the presumption of unconstitutionality, whereas the tiers of scrutiny permit judicial ethical and coverage judgments to beat the presumption.”
Second is the Stage-of-Generality Downside. That is offered within the “why” and the “how” of a historic custom. In Rahimi, the bulk determined that the surety and affray legal guidelines sufficed as analogues, whereas Justice Thomas in dissent thought they had been at too excessive a stage of generality.
Alicea distinguishes “substantive” from “incidental” options of the historical past, the previous being the contours of the precise understood on the Founding and the latter being information that weren’t germane to these contours (e.g., that the supposed analogue and the trendy legislation had been each handed on a Tuesday). Whether or not an arm is harmful and strange or in frequent use is knowledgeable by the historic functions of the precise, together with to allow residents to convey arms stored at house for militia obligation. “Thus, simply as it’s an error to include incidental options into our description of a historic custom, it’s a mistake to efface substantive options in our description. The previous happens by viewing a practice at too low a stage of generality, whereas the latter happens by viewing a practice at too excessive a stage of generality.”
Third is the Administrability Downside. Some complain that the text-history strategy is simply too tough to manage, regardless of that that is what judges and attorneys sometimes do – they analyze the phrases of the Structure and the unique understanding thereof. Alicea means that it is too quickly after Bruen was determined to make sweeping judgments concerning the precedent’s viability. Some points haven’t got a transparent reply, such because the variety of legal guidelines that make a practice, however that is the case with different exams as nicely. Because the Court docket resolves extra circumstances beneath Bruen, uncertainty will diminish. To not point out that “ideologically-divergent judging in extremely controversial circumstances isn’t a phenomenon distinctive to Bruen.“
Lastly, Alicea analyzes Bruen‘s rival, tiers of scrutiny. First, with out Bruen‘s historic strategy, courts determine for themselves whether or not an curiosity is compelling. “However the place does the optimistic legislation grant judges the authority to reply such political questions within the realm of constitutional adjudication, and when did the individuals determine to allocate that authority to judges?” Judges are capable of manipulate outcomes by how they body the questions.
Second, the identical downside arises when judges decide whether or not a regulation is sufficiently tailor-made to realize a authorities curiosity. Recall Justice Breyer’s quip in McDonald v. Chicago about how judges should resolve complicated empirical points. As soon as once more, judges should not decide public coverage.
And third, use of tiers of scrutiny permits judges to do the balancing. Against this, Step One invokes the presumption of safety for conduct throughout the Second Modification’s unique semantic which means, and Step Two permits solely restrictions with correct historic analogues. “It provides insult to damage for judges to first create a brand new authorized customary with out foundation in democratically enacted optimistic legislation and craft a typical that grants broad authority to themselves to ‘usurp[] the individuals’s proper to make main coverage selections.'” (Quoting Justice Kavanaugh’s Rahimi concurrence.)
Alicea concludes that if critics are proper that Bruen is incoherent and manipulable, its failure will reinforce tiers of scrutiny in different areas of constitutional adjudication, reverting to the type of judge-empowering interest-balancing inquiry that originated with the Warren Court docket. “The choice future is one by which Bruen marks the tip of 1 period of constitutional legislation and the arrival of one other, one by which history-based methodologies more and more displace these created earlier than the rise of recent originalism.”
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The Court docket has now relisted two Second Modification circumstances fifteen instances, on this occasion for its convention on Friday Might 29. They embody Ocean State Tactical v. Rhode Island, which considerations Rhode Island’s journal ban, and Snope v. Brown, which considerations Maryland’s ban on semiautomatic rifles.
