Analogical Reasoning and the Second Amendment

In Bruen, the Supreme Court held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” To justify a regulation, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” And that depends on whether there is a relevantly-similar historical analogue.

In assessing a modern restriction, “this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge.” A green truck is not relevantly similar to a green hat if the subject is things you can wear. I would add that an antebellum ban on carrying a Bowie knife concealed is not relevantly similar to a current ban on possession of a rifle or magazine. As Brueninstructs, we look at “how and why the [modern and historical] regulations burden a law-abiding citizen’s right to armed self-defense.” Under that test, a modern requirement to register all guns would not be analogous to a historical requirement that a militiaman must exhibit his musket at muster.

While a historical analogue need not be “a dead ringer,” Bruen cautions courts not to “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” The analogies must be from the Founding period and, if they confirm Founding history, from later periods—but not too much later. For example, there were at least some laws at the Founding restricting firearms in polling places, legislative assemblies, and courthouses. Later history can be looked at to confirm whether this matured into an enduring tradition or was instead a dead end that should not be used to define the scope of the right.

In his Bruen dissent, Justice Breyer asked, “will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?” He quotes Saul Cornell describing “law office history” as “a results oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion.” Cornell is further cited for arguing that Heller was wrongly decided. Indeed, Cornell joined in an amicus curiae brief in Heller claiming that “the private keeping of firearms was manifestly not the right that the framers of the Bill of Rights guaranteed in 1789.”

But Professor Cornell engages in what I call “history office law,” which means that some historians make claims about legal history to reach preordained conclusions that betray their ignorance of statutory interpretation. A 1795 Massachusetts law made it an offense to “ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth.” Cornell would cross out everything after “go armed,” as if doing so “offensively” and in a manner that created “fear or terror” to others were not elements of the crime. Such distortions are routine on the part of anti-Second Amendment historians.

So Justice Breyer is correct that some judges and others may write “to produce a preordained conclusion,” but his alternative of “interest balancing” through means-ends scrutiny is far worse, because it actually encourages that tendency. His dissent in Heller was preordained to find that D.C.’s handgun ban was valid because the D.C. Council said that handguns were used in crime, and that interest outweighs the Second Amendment. And in Bruen, his policy choices are revealed again in his concern that the historical approach will “make it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.”

Regarding the limited “sensitive places” where firearms may be restricted, Justice Breyer asks: “So where does that leave the many locations in a modern city with no obvious 18th- or 19th-century analogue? What about subways, nightclubs, movie theaters, and sports stadiums?” But there are analogues, and they illustrate how historically gun possession is the default answer. At the Founding, travelers rode on sometimes-lonely roads, taverns serving spirits abounded, parades were frequent, and plays had been around since Shakespeare. And sports? There were shooting matches and festivals, rowdy crowds gathered for wrestling and cockfighting, and of course there was horse racing. And no gun bans were ever enacted to cover any of these circumstances.

Speaking of which, Bruen sparked a new episode that might be entitled: The Empire (State) Strikes Back. Bruen had admonished that “there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.” So New York enacted a law that made so many places off limits to carry a handgun that it is basically impossible to carry in any meaningful way. Reasoning by analogy shows why New York’s approach is unconstitutional.

New York bans carry in churches, even with the approval of the church leadership. But there are zero analogies from the Founding for banning guns in churches. That doesn’t mean the Founding generation did not understand the risk of violence faced by people congregated together to worship. But their response to that risk was not to disarm the congregation but rather, in several colonies, to require individuals to bring their arms to church. Thus, the Founding generation’s principle for dealing with gatherings of individuals who may be vulnerable to danger was to arm them, not to disarm them and strip them of the right to defend themselves. This principle undermines not only a ban on carrying in churches but also the rationale for many bans on guns in so-called sensitive places generally.

New York also bans carry in all public parks. But again, New York cannot point to any flat bans on carrying firearms in the many green spaces and commons at the Founding that were the equivalent of today’s parks. Instead, what we sometimes find are restrictions on discharging firearms in a few of these areas. And as Heller said, it is likely that using a firearm in self-defense would not be viewed as a violation of these laws. So, the Founding era’s strategy of regulating firearms in these types of public spaces was not to disarm people, but rather to prevent irresponsible shooting in some places frequented by the public. Indeed, only restricting discharge assumes that people will carry.

New York has also mandated that on private property, including businesses open to the public, carry is prohibited. Only express authorization of the owner or lessee allows a visitor to carry. For historical support, New York has pointed primarily to Founding era hunting regulations. But these regulations cannot be valid analogues. How they restricted carry was much milder than New York’s sweeping ban—they generally only applied to enclosed land or fields and not to businesses held open to the public. And they restricted carry to regulate hunting, not because of a concern that gun carrying was simply too dangerous.

Preliminary injunctions have been issued in some of the challenges to New York’s sweeping bans on carry, but the Second Circuit has stayed the orders, allowing continued enforcement. Nationwide, litigation is being actively pursued regarding other restrictions, particularly prohibitions on modern rifles and standard magazines. Only time will tell the extent to which the courts will faithfully apply Bruen’s text and history test and avoid the temptation to slip back into means-ends scrutiny.