Moving beyond the methodological aspects (see here and here), what about the outcome in New York State Rifle & Pistol Association v. Bruen? Here are some quick thoughts (with apologies to those on both sides who have spent a lot more time than I have on this case).
First, the text on its face seems to indicate a right to carry guns in public (subject to regulations). The Second Amendment gives a right to “keep … arms” — that’s the right, to have arms in the home, recognized in Heller — and, separately, a right to “bear arms”, meaning carry arms presumably outside the home. (The prefatory clause, alluding to a “well regulated militia,” signals that the right is subject to substantial regulation.)
The Bruen majority opens its substantive analysis with this point:
Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms. As we explained in Heller, the “textual elements” of the Second Amendment’s operative clause— “the right of the people to keep and bear Arms, shall not be infringed”—“guarantee the individual right to possess and carry weapons in case of confrontation.” 554 U. S., at 592.
Heller further confirmed that the right to “bear arms” refers to the right to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Id., at 584 (quoting Muscarello v. United States, 524 U. S. 125, 143 (1998) (Ginsburg, J., dissenting); internal quotation marks omitted). This definition of “bear” naturally encompasses public carry. Most gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner table. Although individuals often “keep” firearms in their home, at the ready for self-defense, most do not “bear” (i.e., carry) them in the home beyond moments of actual confrontation. To confine the right to “bear” arms to the home would nullify half of the Second Amendment’s operative
The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash a right to “bear”
arms in public for self-defense.
Agreed. Second, I would say that this presumptive reading could be overcome by a historical showing that public carry was broadly prohibited at the relevant time (we’ll leave aside what that time is). Evidence of such broad prohibitions would show that, despite the most apparent reading of the text, the right it invokes didn’t actually extend generally to public carry.
That’s pretty much the majority’s approach (with somewhat different phrasing). The opinion launches a extensive historical account of gun regulations, concluding that there were not broad prohibitions on public carry (although there were regulations of the manner of public carry). And — assuming that’s correct — that should be enough to take care of this case (with some serious methodological questions for future cases, as noted in prior posts). The New York law prevents an overwhelming majority of the people from bearing arms outside the home.
But perhaps the majority’s history is wrong. Saul Cornell — the preeminent legal historian on the anti-gun-rights side –says it is in this post at SCOTUSBlog: Cherry-picked history and ideology-driven outcomes: Bruen’s originalist distortions. Typically, he does not pull any punches:
The majority opinion in New York State Rifle & Pistol Association v. Bruen invokes the authority of history but presents a version of the past that is little more than an ideological fantasy, much of it invented by gun-rights advocates and their libertarian allies in the legal academy with the express purpose of bolstering litigation such as Bruen. Rather than applying a history, text, and tradition approach, it would be more accurate to characterize Justice Clarence Thomas’ decision as an illustration of the current Supreme Court’s new interpretive model: “Fiction, Fantasy, and Mythology.” Indeed, the distortion of the historical record, misreading of evidence, and dismissal of facts that don’t fit the gun-rights narrative favored by Thomas are genuinely breathtaking in scope. Thomas has taken law-office history to a new low, even for the Supreme Court, a body whose special brand of “law chambers history” has prompted multiple critiques and been a source of amusement for generations of scholars and court watchers.
Perhaps the most egregious distortion of the historical record occurs in the majority’s false claims about regulation during Reconstruction. Evidence of robust regulation of guns in public featured prominently in the briefs filed in the case, but the majority either dismisses contrary evidence as unrepresentative or simply ignores evidence it finds inconvenient. Here is what Thomas says about Texas, a state whose robust gun laws, he reluctantly concedes, undeniably support New York’s approach to public safety. “We acknowledge,” Thomas wrote, “that the Texas cases support New York’s proper-cause requirement, which one can analogize to Texas’ ‘reasonable grounds’ standard. But the Texas statute, and the rationales set forth in English and Duke, are outliers.”
Texas, it is worth stressing, was hardly alone in embracing a robust view of state police-power authority over regulation of arms in public. … Twelve million Americans during the Reconstruction period were living under state constitutional arms-bearing provisions that reflected this new regulatory paradigm, a model that forged an indissoluble link between the right to regulate and the right to bear arms. …
I agree that if the relevant historical practice was to prohibit large numbers of the people from carrying arms in public, that is a serious problem for the Bruen majority. (That’s a thing about originalism: it is — or should be — falsifiable). But (again on a quick look) I’m not persuaded Professor Cornell has made his case.
Professor Cornell has a longer article on the topic in the UC Davis Law Review, and I haven’t examined in detail all of his evidence there. In his SCOTUSBlog post, he invokes two specific laws: the 1868 Georgia Constitution, and an 1873 Jersey City ordinance. I assume he thinks these are his best examples.
But they aren’t entirely persuasive. The Georgia constitutional provision states:
The right of the people to bear arms in defense of themselves and the lawful authority of the State, shall not be infringed, but the Legislature may prescribe the manner in which they may be borne.
That doesn’t grant authority to prohibit bearing arms, only to regulate the manner “in which they are borne,” which is manifestly not what the New York statute in Bruen did. (See Randy Barnett’s important post on this distinction.)
The Jersey City ordinance provided:
[N]o person shall, within the limits of Jersey City, carry, have or keep on his or her person concealed, any slung-shot, sand-club, metal knuckles, dirk or dagger not contained as a blade of a pocket knife, loaded pistol or other dangerous weapon.
Although perhaps not completely clear, that appears to me to be a prohibition of concealed carry, not a prohibition of all public carry. If so, again it’s a regulation of the manner of carry, not a prohibition (and so not relevant to Bruen).
To be sure, the history of gun regulations is complex, so I don’t mean to be definitive. But I’m not seeing conclusive evidence that public carry was widely prohibited (as opposed to being regulated) in the relevant period. And without that evidence, the majority’s conclusion seems sound.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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