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10/15/2022

Adam Samaha: On the Methodology that Saved Most Gun Licensing
Michael Ramsey

Adam M. Samaha (New York University School of Law) has posted Is Bruen Constitutional? On the Methodology that Saved Most Gun Licensing (98 N.Y.U. L. Rev. (2023 forthcoming)) (16 pages) on SSRN.  Here is the abstract:

Last Term, the U.S. Supreme Court decided a significant Second Amendment case after more than a decade of waiting. The Court's majority coalition attempted to prevent judges from using deferential means-ends scrutiny, and redirect their attention to enacted text, old examples, and analogies thereto. Yet the Court both condemned outlier "may-issue" firearm licensing and preserved popular "shall-issue" licensing. That split result seems incompatible with some of the majority's surface-level methodological commitments. Actually, to craft its holding, the majority deployed a wider range of considerations than text, history, and analogy, even apart from any extra-legal policy preferences that might have mattered. Such inclusiveness is typical in modern constitutional adjudication, of course. But as much as any other, this case raises hard questions about which of the apparently legal considerations that are used to decide constitutional cases are themselves "constitutional" and which are not, along with how to understand the relationship between them. Perhaps "constitutional considerations" are so inclusive as to be not so special, or else "non-constitutional considerations" are no less supreme than their companions. Dilemmas appear either way, and for us all.

(Via Larry Solum at Legal Theory Blog, who says: "Highly recommended.  Download it while it's hot!")