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Joseph Blocher & Eric Ruben: Originalism-by-Analogy and Second Amendment Adjudication
Michael Ramsey

Joseph Blocher (Duke University School of Law) & Eric Ruben (SMU Dedman School of Law) have posted Originalism-by-Analogy and Second Amendment Adjudication (Yale Law Journal, forthcoming) (64 pages) on SSRN.  Here is the abstract:

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. This novel approach to historical decision-making raises unique challenges, as evidenced by lower courts’ faltering efforts to apply Bruen to modern laws regulating 3D-printed guns, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic violence restraining orders. Bruen purported to constrain judicial discretion by mandating historical analogy, but instead enabled judicial subjectivity, obfuscation, and unpredictability. Without a more disciplined approach the future of Second Amendment doctrine is dire, as is that of other areas of constitutional law where such tests take root.

This Article begins by unpacking Bruen’s approach, which we call originalism-by-analogy. It shares some features with originalism and traditionalism, but also differs in the degree to which it requires judges to reason analogically straight from the historical record, rather than using historical sources to identify the original public meaning of a constitutional provision. The Article then explains and addresses several challenges of originalism-by-analogy by bringing together two bodies of scholarship that have thus far had little overlap: the voluminous literature on originalism and the generations-old literature on analogical reasoning in law. We distill three broad principles that will be central to Second Amendment law and scholarship going forward. First, courts applying Bruen must discern workable principles of relevant similarity — the sine qua non of analogical reasoning — to compare historical and modern laws. Second, doctrine must account for the fundamental differences between past and present, for example by adjusting the level of generality at which the historical inquiry is conducted. Third, courts must attend to the judiciary’s institutional limitations in conducting a difficult historical inquiry and recognize that — precisely because it requires comparison of past and present — Bruen preserves an important role for empirics and legislative deference.