Learning from Second Amendment litigation

Second Thoughts is a recurring series by Haley Proctor on the Second Amendment and constitutional litigation.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

Welcome to Second Thoughts, a monthly column that examines issues that arise in constitutional litigation, mostly through the lens of the Second Amendment. I borrow the title from Professor Akhil Amar, the teacher who taught me to love the Constitution. In an article titled Second Thoughts, he analyzed the text and history of the Second Amendment before the text and history of the Second Amendment were cool. Now that they are cool, I am grateful to SCOTUSblog for the opportunity to write about them.

The title of the column also signals that it will focus less on primary questions about the meaning of the Constitution and more on secondary ones, about how lawyers and judges litigate and adjudicate constitutional claims. The Second Amendment is a particularly good lens through which to examine these questions. In this first column, I will explain why that is so and describe a few of the important questions coming up in Second Amendment litigation today.

Why you can learn from Second Amendment litigation

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

It is part of the Bill of Rights, a collection of early amendments to the Constitution that became effective in 1791.

For much of the nation’s history, there was not much Second Amendment litigation to learn from. One reason for this is that, for many years, the Second Amendment was understood to bind only the federal government, and the federal government was not in the business of regulating arms. Even after the 14th Amendment extended the Constitution’s protections against state governments in 1868, the courts were slow to recognize that it required states to respect (some of) the rights contained in the Bill of Rights.

Then, in 1934, Congress passed the National Firearms Act, which – among other things – required the registration of certain firearms, and the Supreme Court confronted its first Second Amendment challenge to federal legislation. In the 1939 case of United States v. Miller, two defendants charged with transporting unregistered sawed-off shotguns argued that the National Firearms Act violated their Second Amendment rights. The Supreme Court rejected their challenge on the ground that sawed-off shotguns are not “arms” that the Second Amendment entitles Americans to possess.

If you’re interested, this history is recounted in detail in The General-Law Right To Bear Arms, by Professors William Baude and Robert Leider (the latter of whom is now assistant director and chief counsel of the Bureau of Alcohol, Tobacco, Firearms and Explosives). As they explain, the Second Amendment “underwent a period of dormancy” after Miller because lower courts misunderstood the decision to hold that the Second Amendment applies “only to individuals enrolled in military organizations.” The Second Amendment thus slept through the heyday of the living Constitution (the belief that the Constitution’s meaning evolves with the times) and the early decades of originalism, when courts were busy working out the contours of other constitutional rights.

The Second Amendment woke up in 2008, with the Supreme Court’s decision in District of Columbia v. Heller. That decision holds that the Second Amendment protects an individual right to keep and bear arms that does not depend on militia membership. Two years later, the Supreme Court incorporated the right against the states in McDonald v. Chicago. (“Incorporation” is a legal term of art for recognizing that the 14th Amendment requires states to respect a federal right, too.)

Thus, it was only in the past 15 years or so that federal constitutional challenges to firearms regulations came to be seen as viable. Lower courts set to work figuring out how to adjudicate those challenges, and they fell back on a familiar 20th-century model known as the “tiers of scrutiny.” This model calls on courts to weigh the burden on the right “to keep and bear arms” against the public interests advanced by gun control measures. At least from the perspective of someone who was litigating Second Amendment challenges at the time, this approach was highly permissive of firearms regulation. And from a methodological perspective, there wasn’t much to see there: Because courts were following familiar patterns drawn from other types of rights litigation, they were not answering many new questions about how to adjudicate constitutional rights claims.

Finally, in the 2022 case of New York State Rifle & Pistol Association v. Bruen, the Supreme Court rejected the tiers of scrutiny and offered the following methodological guidance: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

Put differently, courts must examine the text of the Second Amendment. Simple enough. If a challenged law forbids or regulates conduct covered by the plain text of the Second Amendment, then the court must ask whether the law fits within a “historical tradition of firearm regulation.” If it does, the government wins. If it does not, the challenger wins.

For example: Because American governments stretching back to the Founding have temporarily disarmed individuals found “to pose a credible threat to the physical safety of another,” the court concluded that a modern federal law that does so is “consistent with the Second Amendment.” But because there is no similar tradition of requiring individuals to show “proper cause” to obtain a license to carry a firearm in public, New York’s law imposing that requirement is not.

There are good arguments that something like this approach to constitutional rights is very old. (For a dissenting view, see here and here.) But it is (somewhat) new to modern constitutional litigation. Its novelty should not be overstated. As the court’s decision in Bruen pointed out, this approach resembles the court’s longstanding approach to First Amendment freedom of speech cases. At the same time, Bruen swept away the “precedents” (binding decisions about the meaning of the Second Amendment) that federal courts had built up in the years since Heller. Courts accustomed to the tiers of scrutiny – balancing burdens and interests or following prior decisions that balanced burdens and interests – must now look to history for answers.

The so-called text-and-history approach is not limited to the Second Amendment. The Supreme Court recently applied it in a First Amendment challenge. But because there are so few binding Second Amendment precedents in the wake of Bruen, Second Amendment litigation sits at a frontier. Every day brings new questions, and new answers, about how to adjudicate constitutional challenges. And that is why you can learn so much from Second Amendment litigation.

What you can learn from Second Amendment litigation

There are many interesting questions raised in litigation involving the Second Amendment. Here are just a few of them.

Are judges good historians? Originalism is a theory of constitutional interpretation that holds that the law’s meaning is fixed at the time of its enactment and constrains those who apply it today. When it comes to interpreting the Constitution, judges who seek to follow its original meaning must look to history to determine what it meant at the time it was ratified. Bruen’s text-and-history method is originalist because it requires courts to look to history to figure out what types of conduct the right to keep and bear arms protected and what types of regulation it permitted. (For a dissenting view, see here.) To critics of originalism, Bruen offers a stark illustration of the theory’s shortcomings because of the demands it places on lower courts to do historical research.

Were the Framers good prognosticators? Another challenge originalism faces is that times are always changing. Do old laws even reach new facts? And if they do, is it a good idea to apply them? Variants of this argument are common in Second Amendment litigation. Firearms technology has advanced significantly since the Second Amendment was ratified. Many have questioned whether modern guns even qualify as “arms” within the meaning of the Second Amendment and doubt the adequacy of historical regulatory traditions built around the musket.

In future posts, I will examine these critiques and explain why I believe they are misplaced in constitutional adjudication. Judges are not historians, and neither are they oracles of olden policy judgments. They are judges, and that makes a difference.

And here are some other questions this column may consider:

What role does the Supreme Court play in constitutional litigation?

In what way do Supreme Court decisions bind lower courts?

What does it mean to assert a constitutional right in litigation?

Who decides whether your rights have been violated?

How do text and history relate to one another?

. . .

The questions are endless, but your attention, presumably, is not. Hopefully this small sampling convinces you that Second Amendment litigation provides a good classroom.

How you can learn from Second Amendment litigation

Keep reading this column! Until next time.