Randy Barnett on Originalist Methodology in NYSRPA v. BruenMichael Ramsey

Here is another important post on originalist methodology in New York State Rifle & Pistol Association v. Bruen: At SCOTUSBlog, Randy Barnett, A minor impact on gun laws but a potentially momentous shift in constitutional method. It's important enough (and expresses some of my own reservations about the majority's methodology) that I'll quote it at some length.  First, as to background: 

At the level of method ... the majority in Bruen adopted a “text and history” approach to constitutional rights that may prove to be momentous, not only for the Second Amendment but for other rights as well. In adopting this approach, the majority purported to reject the much-criticized “tiers of scrutiny” approach that has been a widespread feature of constitutional law since the 1950s. Having heard about the text and history approach before, I was very curious to see how it would work in practice. I am still not sure I completely understand it.

After establishing that there is a constitutional right to carry a firearm outside the home — which was conceded by both parties — Thomas then looked to the history of regulating the right to arms to see if there was any requirement similar to New York’s for carrying outside the home. Apart from some statutes he characterized as “outliers,” Thomas concluded that this type of regulation was not found in the relevant history and therefore it infringed on the right.

This leads to some questions:

I supposed the obvious question to ask is whether a “shall issue” regime like [Washington D.C.'s], or something analogous to it, can be found in our history. I would think not. But still the court denied it was questioning such a regime.

Yet the court also said that “because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”  So maybe the D.C. regulatory regime is vulnerable after all.

How would the court evaluate the burdens imposed by these regulations under its new approach? Would it ask whether 16 hours of classroom instruction is just too much? Should any classroom instruction be required? Is this an “undue burden” test of the sort that had previously been adopted in Planned Parenthood v. Casey?

Agreed, these seem like difficult issues and I don't know how the majority would deal with them.  For example, I doubt there's any history of training requirements.  If not, does that mean training requirements are unconstitutional? Maybe, but just because a regulation didn't exist doesn't it wouldn't have been allowed -- perhaps it just hadn't ever been suggested. A modest training requirement doesn't restrict the ability to bear arms much (and seems consistent with the idea of a "well regulated" militia).  More broadly, I don't know how the majority would deal with regulations that had never been contemplated at the relevant time (whether 1791 or 1868).

The majority says it will deal with these issues though "analogical reasoning", citing (yikes!) nonoriginalist Cass Sunstein: 

Much like we use history to determine which modern “arms” are protected by the Second Amendment, so too does
history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such
present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are “relevantly similar.” C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And because “[e]verything is similar in infinite ways to everything else,” id., at 774, one needs “some metric enabling the analogizer to assess which similarities are important and which are not,” F. Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For instance, a green truck and a green hat are relevantly similar if one’s metric is “things that are green.” See ibid. They are not relevantly similar if the applicable metric is “things you can wear.”

I'm skeptical that this provides much guidance for regulations lacking close analogies (of which I think there are probably a lot). I'm not sure how it would be applied other than asking how much of a burden the regulation would place on the right, versus how much benefit the government would gain from it (which is the test the majority says it is not applying).  This isn't such a problem in Bruen itself, where the regulation seems to exclude a large percentage of the people from exercising the right at all, but it seems likely to be a serious problem in cases involving somewhat less-intrusive regulations (such as training requirements).

Back to Professor Barnett: 

There is, however, an even more fundamental question raised by Thomas’ text-and-history approach. It seems to assume that, once we use history to identify the “outer contours” of a constitutional right, then any such right bars not only prohibitions on its exercise but also trumps any statutory regulation of it. Prior to the New Deal, however, rights were not viewed as trumps on the regulatory power of government. Instead, the existence of a right barred the complete deprivation of it — that is, a prohibition — and statutes were “strictly” or “equitably” construed to avoid this result. And the existence of a right also required that a regulation be within the power of a legislature to enact. At the federal level, this meant a power delegated to Congress by the Constitution. At the state  level, this meant what is called the state’s “police power.” While broad, the state police power was not unlimited.

Legislative acts that were not good-faith exercises of such powers were considered “pretended” legislation, and not truly a law. As John Marshall explained in McCulloch v. Maryland, “should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal … to say that such an act was not the law of the land.” (Emphases added.)

To assess whether this is the case requires a court to evaluate whether there is a sufficient fit between the ends of the legislation and the means adopted to achieve it. Or, as Alexander Hamilton put the matter: Congress “has only a right to pass such laws as are necessary and proper to accomplish the objects intrusted to it,” and “the relation between the measure and the end … must be the criterion of constitutionality.” This sounds like a means-ends analysis to me.

He concludes by proposing an alternative:

Perhaps a better approach would have been to distinguish between prohibiting and regulating the exercise of a right. Any prohibition of the exercise of a constitutional right is per se unconstitutional. In contrast, a regulation of how a right may be exercised is permissible, provided the ends of such a regulation are within the legislative power of Congress or a state.

Under this distinction, because the “special need for self-protection” that was required by the New York system was “distinguishable from that of the general community,” the law amounted to a prohibition on ordinary citizens exercising their constitutional right to bear arms outside the home. Not only was this the scheme’s effect; it was also its intention.

By contrast, D.C.’s “shall issue” regime provides a means by which every “law-abiding” (per the background check) citizen of D.C. can obtain a permit, so it is not a prohibition of the exercise of a constitutional right. Unlike the New York law, it is a “regulation” because it proscribes the manner of exercising the right.