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10/27/2022

Nelson Lund: Bruen’s Preliminary Preservation of the Second Amendment
Michael Ramsey

Nelson Lund (George Mason University School of Law) has posted Bruen’s Preliminary Preservation of the Second Amendment (Federalist Society Review, forthcoming) (32 pages) on SSRN.  Here is the abstract:

New York State Rifle & Pistol Association v. Bruen confirmed that legislatures may not effectively destroy the constitutional right to bear arms by restricting its exercise to those who can persuade a government official that they have been subjected to extraordinary threats to their personal safety. This was hardly a surprise. Although the groundbreaking 2008 decision in District of Columbia v. Heller technically held only that there is a constitutional right to keep a handgun in one’s home for self-defense, the Court specifically found that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” More surprising was Bruen’s decision to repudiate an overwhelming consensus of the post-Heller circuit courts about the legal tests for determining the scope of the constitutional right.

After explaining why Bruen was an easy case, and why the Court rightly rejected the circuit courts’ excessively deferential review of legislative judgments, this article argues that the alternative test announced in Bruen is unsatisfactory. Under the new test, the government must prove that any regulation covered by the Second Amendment’s text is within a historical tradition of firearm regulation that was codified in the Constitution. But the Bruen opinion itself repeatedly violates its own injunction by reaffirming naked and gratuitous ipse dixits from Heller, and by issuing new dicta supported by little or no historical evidence. If future courts are less deferential to legislatures, it will not be owing to their inability to ignore or manipulate Bruen’s text-and-history test.

The article concludes by exploring the fundamental principles found in our political tradition that justify preserving the constitutional right to keep and bear arms. Without a durable judicial consensus about the value of that right, like the established consensus about the value of the right to free speech, the Second Amendment could easily become a dead letter, as it was before Heller revived it.