Home > Journals > WMLR > Vol. 65 (2023-2024) > Iss. 1 (2023)
William & Mary Law Review
Abstract
New York State Rifle & Pistol Association, Inc. v. Bruen was the first significant Second Amendment case that the Supreme Court had heard in nearly fifteen years since its decision in District of Columbia v. Heller. This Article offers some preliminary observations about the opinion itself, as well as its likely effects, some of which are starting to manifest.
Our first take concerns the question of opinion assignment. Why did Chief Justice Roberts—whose support for the Second Amendment has been suspect—assign the opinion to Justice Thomas?
Takes Two and Three concern Justice Thomas’s substitution of text, history, and tradition for tiered security, and his call for courts to adopt analogical reasoning should the former fail to provide answers to resolve particular cases. In rejecting tiered scrutiny, Thomas argued that the lower courts had misread the Heller decision itself; that Heller rejected tiered security in favor of a textual, historical, and traditional inquiry. To make Bruen seem less like an abrupt departure, we argue, Justice Thomas had to “retcon” Heller—reading back into the latter decision the analytical framework adopted in Bruen. We also question how helpful his explanation of the method for analogizing to other extant gun regulations when history and tradition have run out is likely to be to lower courts who must rehear cases involving dozens of these laws in light of Bruen’s new standard.
Take Four wonders about the status of what we earlier termed “the Heller safe harbor”—the list of “presumptively lawful” regulations that the Court said were not called into question by the decision. Critics at the time questioned whether these could be squared with the self-conscious originalism of the rest of the opinion. This tension is only heightened by Bruen’s text-history-tradition only approach.
Finally, we look at the reaction of the lower courts post-Bruen. While approaches differ, a surprising number of these opinions seem to recognize Bruen for the sea change it portends and are attempting to implement it in good faith. Although, as was true with cases like United States v. Lopez and Heller itself, some courts are also trying to avoid the wider implications of Bruen using any available argument, however specious, and we detect in some an “uncivil obedience” intended to raise the Supreme Court’s costs of holding the line laid down in Bruen.