Should the Future Be Determined by the Past? Bearing Arms After Bruen.

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Professor Nelson Lund will moderate a debate between Professors Adam Winkler and Robert Leider on the Supreme Court’s latest Second Amendment decision. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that the Second Amendment guarantees a right to carry a handgun in public for self-defense. In justifying its holding, the Supreme Court engaged in a methodical historical inquiry, grappling with sometimes contradictory historical facts. In future cases, the Supreme Court also instructed lower courts to examine text, history, and tradition when deciding Second Amendment claims. The Court explicitly rejected the interest-balancing approach previously adopted by most courts of appeals. Bruen may prove to be a watershed decision in constitutional and criminal law.  

Did Bruen correctly decide that the right to bear arms applies outside the home? Will Bruen’s text, history, and tradition test be a viable means of analyzing modern gun control laws that have no historical analogue?  And now that the right to bear arms outside the home has been recognized as a constitutional right, what effects will Bruen have on state laws criminalizing the carrying of weapons and on police stop-and-frisk policies? 

Featuring:

  • Adam Winkler, Connell Professor of Law at UCLA School of Law
  • Robert Leider, Assistant Professor, George Mason University, Antonin Scalia Law School
  • Moderator: Nelson Lund, University Professor, George Mason University, Antonin Scalia Law School

 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

[Music]

 

Ryan Lacey:  Hello, and welcome to this Federalist Society webinar. This afternoon, August 11, 2022, we discuss “Should the Future Be Determined by the Past? Bearing Arms after Bruen.” My name is Ryan Lacey, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinions are those of our experts on today’s program.

 

      Today, we are fortunate to have an excellent panel moderated by Nelson Lund, whom I want to introduce very briefly. Nelson Lund is a University Professor at Antonin Scalia Law School, George Mason University. Since joining the faculty at George Mason, Professor Lund has taught Constitutional Law, Legislation, Federal Election Law, Employment Discrimination, State and Local Government, and seminars on the Second Amendment and on a variety of topics in Jurisprudence.

 

      Our experts today are Robert Leider, who is an Assistant Professor of Law at George Mason Antonin Scalia Law School, and Adam Winkler, who is a Professor of Law at UCLA School of Law.

 

      After our speakers give their remarks, we’ll turn to you, the audience, for questions. If you have a question, please put it into the Q&A feature at the bottom of your screen, and we will handle questions as we can towards the end of today’s program.

 

      With that, thank you for being with us today. Nelson, the floor is yours.

 

Nelson Lund:  It’s a pleasure to be -- thank you, Ryan. It’s a pleasure to be here with Adam and Robert. I’m just going to very briefly supply some of the background for the Bruen decision, and most of this will be familiar to a lot of our members and a lot of people on the call.

 

      So just very briefly, District of Columbia v. Heller in 2008 held for the first time that the Second Amendment protects a private individual right rather than a right to maintain or serve in a state militia. The case also held for the first time that a federal law violated the Second Amendment—in this case, a ban on the civilian possession of handguns.

 

      In 2010, two years later, McDonald vs. City of Chicago held that the Fourteenth Amendment makes the Second Amendment applicable to state and local governments. And these two cases set the stage for this year’s decision in New York State Rifle & Pistol Association vs. Bruen.

 

      The statute at issue here banned civilians from carrying a firearm in public unless they could persuade a government bureaucrat that they had been subjected to an extraordinary danger to their personal safety. The bureaucrats’ decision was subject only to rational basis scrutiny or, in another formulation, arbitrary and capricious review.

 

      A sixth-justice majority opinion written by Justice Thomas held that the statute violated the Second Amendment. The majority also repudiated the analytical framework that virtually every circuit court had used to evaluate Second Amendment challenges after Heller. Instead, the Court now instructed the lower courts to adopt a new method—or a method—based on the Constitution’s text and history on American regulatory traditions and on analogies to regulations found in that tradition.

 

      Justice Kavanaugh, joined by the chief, filed a concurrence stressing that the Court has endorsed various forms of gun control that were not at issue in this case. Justice Barrett filed a concurrence noting that the Court’s discussion of the use of history and tradition had not been fully elaborated. Justice Breyer’s dissenting opinion for three justices argued that the majority's new analytical framework—at least he regarded it as new—was misguided and that the statute should have been upheld even under that misguided approach. Justice Alito filed a concurring opinion sharply criticizing Breyer’s dissent.

 

      So starting with Robert Leider, our two experts will each speak for about 15 minutes. They’ll then respond to each other, after which we’ll have a chance for questions. Robert?

 

Robert Leider:  All right. Thank you, Professor Lund. So Bruen is obviously a monumental decision if, for no other reason, than it is if there is a pining on an area of law that has been underdeveloped, which is the federal law of the Second Amendment. But I think Bruen may be even more monumental than just a Second Amendment decision.

 

And here, I want to talk a little bit about what Bruen held, the test that it’s going to apply, and the impact it’s going to have for criminal law and constitutional law and criminal procedure cases.

 

But through this, my overarching thesis is that I think Bruen is a partial repudiation of Erie vs. Tompkins. Erie famously held that there is no general common law and overturned Swift vs. Tyson. And the chief justice said in Dobbs that “Dobbs came as a shock to the system.” I think Erie really came as a shock to the system, overturning what had been the prevailing approach in American law for a century. And it did so without -- in Erie, it did so without any briefing or argument. It just did it on its own accord.

 

And here, what I think you have the Court saying is that there is general law and that courts are to apply the general law of the Second Amendment. The courts aren’t to make it up as they go along. They are not to engage in freestanding interest balancing tests, but they are to apply the general law as it has been. And I’ll talk a little about the time framing of the general law and what it means and how to apply it going forward.

 

But first of all, let’s talk a little bit about what Bruen held and what it did not hold. Bruen held that there is some right to carry arms in public for individual self-defense—that New York could not limit the ability to carry arms for self-defense in public only to a very narrow subset of those who showed special need. And Bruen also held that the legislature could not -- could regulate the right in the public interest but could not totally abrogate the right. And so it’s hard to overstate how broad New York’s law is. A lot of commentators like to say, “Well, New York just required a special need requirement. What is wrong with that?” But New York’s law swept much more broadly than that.

 

What special need is was something that was decided by individual licensing officers. And many of those officers had held that either very, very high-risk businesses—or more commonly, specific death threats—were required before they would issue a license. And so in New York City, even individuals who could not engage -- even individuals who were engaged in high-risk occupations, like driving a taxicab, were prohibited from carrying a firearm.

 

      Second, New York’s law was—and still is for now—an almost total ban on non-residents carrying firearms. New York does not allow non-residents to bring handguns into New York state for virtually any purpose other than gun competitions. You can’t go target shooting in New York with a handgun as a non-resident. You cannot possess an unloaded gun and transport it into New York. And there are plenty of cases where people have been arrested for nothing more than transporting an unloaded weapon in a lock case, passing through an airport, and otherwise lawfully declaring the weapon. So New York’s law is extremely broad by any historical standard. It’s not quite as narrowly tailored, even as some of the historical analogs on its side, like some of the Reconstruction era Texas laws would suggest. It’s actually much broader than that.

 

      Let me talk for a minute about what Bruen did not hold. Bruen did not hold that there is a right to carry a concealed weapon. I think states are interpreting Bruen out of this as holding that, but Bruen doesn’t say that. Bruen expresses no opinion and is very much consistent with states taking the traditional course and prohibiting the carrying of concealed weapons as long as there is some right to bear arms openly. Bruen also did not hold that the right was unlimited and beyond regulation. Bruen said that you can regulate the right, but the regulation must have some historical analog.

 

      So let me switch gears for a minute then and talk about what Bruen did in terms of the standard of review. So first of all, Bruen rejects the tiers of scrutiny that had dominated the lower court. So I think what had happened in the lower courts was a very much undisciplined application of the tiers of scrutiny, and I think it gets off to a bad start immediately.

 

      So in United States vs. Marzzarella, which was a Third Circuit decision in 2010, the Third Circuit applied intermediate scrutiny to hold that a regulation prohibiting individuals from possessing guns with defaced serial numbers was Constitutional under the Second Amendment. And I think there were enormous problems with the Third Circuit’s analytical approach that ended up getting carried into subsequent cases.

 

      The first was an overbroad definition of what plausibly fell within the scope of the right to keep and bear arms. So by expanding the coverage of the right to include every gun control law, the Third Circuit paradoxically weakened the protections that it was offering. And so, a law that prohibits possessing a gun with a defaced serial number does not prohibit the possession or carrying of any kind of weapon for any kind of purpose. It just prohibits the possession of a weapon that has been altered to make it more easy to use it for criminal purposes without detection.

 

      And I think if you frame the issue that way, there was no plausible way in which that regulation impinged the right to keep and bear arms at all. But the Court, by adopting an overly broad definition, then subjected every gun control law to intermediate scrutiny. And the intermediate scrutiny it ended up adopting was very watered down. It was basically a rational-basis approach in everything except name.

 

      And so, when you have too much covered by the right, ironically, you have too little. And courts—both in the Third Circuit and elsewhere—began just deferring to the legislature and saying, “Well, we don’t need empirical evidence. The gun control laws work. As long as the legislature rationally believed it, we’ll say that it furthers an important governmental interest in public safety. And as long as it’s not completely overbroad, we’ll uphold it.”

 

      So that standard turned out to be totally ungovernable, and it offered too much deference to legislatures. Virtually no significant gun control laws were struck down under this standard. And so what the Court did is the Court replaced it with a text, history, and tradition test, and the Court said that you were supposed to look to text -- first look to the text of the amendment and see whether it falls within it. If it does, then you look to history and tradition and see whether there is an analogous gun control law at the framing.

 

      Now, the Court said that the gun control law has to be analogous but not an identical twin. And I think this language is causing a lot of controversy because, on the one hand, maybe it’s just as open-textured as it replaced. On the other hand, maybe it’s too strict. There are a lot of modern problems. But I want to offer a slightly different interpretation of what I think the Court is saying.

 

      Consistent with what I said earlier, I think the Court is saying, “There is general law, and you are to apply it.” And so, if you look at how the Court analyzed this claim, it analyzed the claim by the reference to the general law on the right to bear arms that existed in America from the time of the framing through the adoption of the Fourteenth Amendment.

 

      And Professor Winkler has published extensively in this area. Some of his early articles on scrutinizing the Second Amendment and the reasonable right to bear arms, I think, are collecting these cases. And what Professor Winkler realized—and I think he was right—is that these cases were remarkably consistent. And I think they were remarkably consistent because even though states were operating in a lot of these cases under their state constitution, they understood the right to bear arms to be a right at general law. And they were trying to interpret their decisions consistently with the right as it has been historically understood.

 

They did not understand the right in a more modern context that these state constitutions created the right out of whole cloth. These were rights that had existed at common law and for which state constitutions declared—and the federal Constitution—that they shall not be infringed, by which they meant “Don’t infringe the general law right,” not “We’re creating a new right.”

 

And if you look at what the general law was in the nineteenth century, there was a right to carry arms in public for individual self-defense. The right was subject to regulations. States—except for one court—states otherwise uniformly upheld prohibitions against carrying weapons in a concealed manner. After Reconstruction, they also uniformly upheld restrictions prohibiting the carrying of firearms in certain narrowly-defined locations, like courts and bars and other sensitive places.

 

So I think the Court here is basically operating on what the general law right that existed in the nineteenth century was.

 

Now, to say that there is general law is not to say that every court agrees about what the general law is. And you see, in the nineteenth century, there are some disagreements. There are disagreements, for example, about exactly which weapons are covered. Some courts say handguns generally are covered. Other courts say handguns are not covered except those in use by the army or navy. Others say most handguns are covered, but those primarily designed as concealed weapons are not. And a few courts said handguns weren’t covered categorically.

 

So even as Bruen is saying, “We are applying general law,” that does not mean that what was general law is beyond any controversy. But I think you see in Bruen’s methodology an attempt to discover general law. And what is general law? I think general law was the law that was recognized generally by, in this case, most courts throughout the United States. And you see the Court, in part, disregarding odd decisions.

 

So Texas, after Reconstruction, faced enormous pressure to allow what was an almost general ban on carrying handguns—still not as strict as New York. It exempted travelers. It had a number of exceptions. It exempted travelers. It exempted those in special danger. But the Texas Supreme Court originally held that handguns were not covered. And then it came back a few years later and said, “Well, handguns are protected arms, but this isn’t a total ban.” And it really strained to explain why not.

 

And you see the Bruen Court explicitly disregarding the Texas Court. The Texas Court was an outlier. It did not really represent what the general law was. And so you see the Supreme Court, I think, applying the general law as the Supreme Court best understood it. But there are still questions to be answered.

 

So one of the opening questions -- or one of the questions is, “If you’re going to apply general law, what general law do you apply?” because the general law that was in effect in 1791 wasn’t as well developed as the general law that existed in 1868. In 1791, there were no explicit distinct decisions distinguishing between open and concealed carrying of guns. By 1868, there were many. And you see that, too, in Justice Barrett’s concurrence where she says, “I’m not -- I’m going to reserve this issue.”

 

A related question is, “If we’re applying general law, is it a general law that is fixed at a point in time, or is it the general law as it exists today?” because here’s one area where Bruen changes course a little bit. Bruen says that you have a right to bear arms, but the legislature can select whether it wants to allow people to bear arms openly or concealed. And except for some dicta in one Alabama case, that is inconsistent with most of the state court decisions.

 

Most of the state court decisions said that states could prohibit the concealed carrying of weapons but had to allow people to bear arms openly, that bearing arms was partially for self-defense, but also partially for militia-related purposes. And, of course, if you’re going to bear arms in a militia, you’re going to bear them openly. You’re not going to carry your musket concealed.

 

And I think this was so well settled that the Supreme Court, in an 1897 in dicta, said, “The right to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.” Note they didn’t say, “Is not infringed by laws regulating the manner in which people could bear arms,” but they singled out concealed weapons as the analog of First Amendment obscenity.

 

But here, you see the Court applying a kind of modern law that, “Well, as long as you don’t ban public carry entirely, legislatures can choose.” The second area where they affirm a kind of modern general law is in approving shall-issue licensing regimes.

 

And it’s not clear—if you go back to the general law of the framing—if a government could have licensed the carrying of firearms in this way—as some of the early cases treat this -- there are some early licensing cases because states apply -- southern states apply licensing laws to slaves and free blacks. And the state courts there say, “Well, this is an exceptional case that even free blacks do not have the full rights of citizens.” And they suggest—although they don’t say explicitly—that a licensing law would not otherwise be allowed.

 

But today, you see the mixture of the Second Amendment with the modern administrative state and the Court essentially approving these sort of bureaucratic shall-issue regimes. In terms of how well this test will work, I think this test will work fine in areas where there is general law. And when it came to the right to carry arms in public, there was a considerable amount of general law.

 

I think where this test is going to have problems—and we can talk about it a little bit more during Q&A—is what happens when we face novel gun control restrictions for which there is no general law? And I think in these cases, a test that looks to pure history is going to have trouble. And I think the Court is going to find that it’s going to have to mix some application of general law with some reasoning about first principles if it’s going to decide these cases because I don’t think there are -- a lot of the modern cases on magazine size and so on don’t have easy analogs at the framing.

 

Another issue that I think remains unresolved is what exactly does the Second Amendment protect? And I’m getting a little bit of a long time, so I’m going to go a little quickly here. But I still don’t think we have a coherent understanding of why the Second Amendment is protecting the right to keep and bear arms. The Court has been focused recently on its application for individual self-defense against crime and hasn’t spoken much of the military purposes behind the Second Amendment.

 

But I think when you go to figure out what gun control laws should be upheld or struck down in the future, I don’t think there will be any way to divorce the text of the amendment from the purpose of the amendment’s design to serve. An amendment focused totally on individual self-defense against crime may reach one set of conclusions on laws, like assault weapons ban and magazine size restrictions. An amendment that is both about individual self-defense and about certain military-related purposes may reach a very different set of conclusions about whether assault weapon bans are constitutional.

 

And how strict the test will be, I think, is going to depend. We’ll see what happens. But I think it’s going to depend on the Court’s willingness to supervise lower courts. I think that even Bruen is going to meet hostility in the lower courts, and it’s just going to be a question of will the Court defend its decision.

 

The last thing I will mention -- what will be the effect on criminal law and criminal procedure? And I think here it will probably be less than most people might think. My guess is that the criminal law will remain intact, that what courts will say is, “All this effects is the requirements to obtain a license.” I think there are very significant remedy questions about people who have been convicted in New York and Hawaii and some of these states under laws where they could not obtain a license to bear arms in any form.

 

I suspect states will say, “Well, you don’t have standing to raise these claims if you didn’t apply for a license,” which most people didn’t because it was futile. But I think there’s a very real question about whether that was right. Again, if we look back to general law in the 1800s, courts arrested judgment in these cases where individuals were exercising their constitutional rights and had no lawful means to exercise them.

 

In the modern time, we may see a modern general law of remedies come in and say, “Well, your remedy was to apply for a license and appeal. It was not to carry a gun anyway in violation of the state criminal law.” But I think we can have an open discussion about whether that is, in fact, the correct remedy.

 

Finally, I think this decision will have significant impact on criminal procedure. And when Terry vs. Ohio and those decisions came out, it was, I think, more uncommon for people to carry guns. Courts were more willing on a tip that somebody was armed and potentially dangerous or maybe even just armed to allow stop-and-frisk. I think there will be questions about what happens now that that conduct is constitutionally protected.

 

And I think there will be two questions. One is, “What kind of information do you need before you are able to stop-and-frisk somebody?” And second, “Will that rule apply uniformly in all areas, or will they make exceptions for ‘high-crime areas?’” which have always had a -- in the Fourth Amendment side, have often had a watered-down standard of review and for which there is enormous backlash at the moment on racial equity grounds.

 

But I think those decisions will be enormously significant because we often think of gun violence and gun crime as a national problem, and our politics have become nationalized. But that’s not the reality. Gun crime—especially street-gun crime—is a local problem. And it’s not just a local problem to cities and certain areas. It’s a local problem often to specific neighborhoods within cities. If you look at the map of where homicides happen, they are often concentrated in a few locations with very little violence outside of it.

 

And so, it will be a difficult question -- how to police in an era when it is recognized that carrying a gun is a constitutional right.

 

Nelson Lund:  Okay. Thank you, Robert. Adam?

 

Adam Winkler:  Great. Well, thank you, Professor Lund. Thank you, Professor Leider. Thank you, The Federalist Society, for having me here. And, of course, thanks to the audience for listening in to this important discussion on the Bruen case.

 

      I should start by saying I think that New York’s law was highly problematic in a variety of ways. And I think a really good decision or opinion could have been written, striking down New York’s law in a variety of ways.

 

Unfortunately, I feel that Justice Thomas’ opinion was not that opinion. And I want to talk about my critique of Justice Thomas’ opinion and say why it’s an example of failed originalism that really only hurts the cause of originalism even while seeming to advance that methodology. So I’ll focus my critique on the Court’s analysis of the text, the Court’s application of history and tradition, and think about what the future of this history and tradition test that the Court has proposed offers for a right to bear arms in the future of regulation and, in particular, the future of Second Amendment jurisprudence.

 

So first of all, one critique, I think, that has to be made is the Court’s analysis—or definition—of what the right to bear arms means. The Court, in the Heller case, said that the right to keep arms is the right to have arms in your home for personal protection. And the Court, in this case, says that the right to bear arms—that second idea of bearing arms—includes a right to public carry for personal defense in case of confrontation from a criminal or others.

 

I’m going to read you a quick paragraph of the Court’s analysis here. It says, “The definition of ‘bear’ naturally encompasses public carry. Most gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner table. Although individuals often ‘keep’ firearms in their home, at the ready for self-defense, most do not ‘bear’ (i.e., carry) them in the house beyond moments of actual confrontation. To confine the right to ‘bear’ arms to the home would nullify half of the Second Amendment’s operative protections.”

 

Well, you might notice what’s missing in that paragraph, right? There is no analysis of the original public understanding of “bear arms” in this opinion. Not one. There’s no analysis of how the Founding generation used the words “bear arms.” There is no discussion of historical evidence from the Founding era that people thought there was a right to carry guns in case of confrontation against a criminal.

 

And so, there’s really -- there’s no history here. And I think there’s good reason why there’s no history here because the historical briefs offered to the Court, I think, offered a pretty profound rebuttal of the Court’s determination that the right to bear arms is a right to carry guns in case of confrontation for self-defense against ordinary criminals.

 

First of all, we might note that gun technology was such that one rarely carried a loaded gun back in the Founding era because of the way that gunpowder worked at the time. Gunpowder was highly combustible, and it was dangerous to carry a firearm with -- a loaded firearm at the time. If you’re riding a horse or whatnot, it could be highly dangerous to the people. It’s not to say it never happened. But to understand firearm technology reveals that, actually, if one were going to defend oneself in public in the Founding era, a firearm probably wouldn’t be the tool that you would use ordinarily.

 

But even beyond that, there were -- we have these corpus linguistics databases of English language texts from the Founding era. So, for instance, there’s the Brigham Young University’s corpus of Founding Era American English, which includes over 130 million words from a range of sources from 1760 to 1799—the exact era we’re talking about.

 

And if you put in “bear arms” in this database, what do you come up with? You come up with 93 percent of references to bearing arms are in a military context. Only four percent of all of the references to “bear arms” in this period were referencing potentially non-military bearing of arms.

 

When you couple this with the reference to the militia in the text of the Second Amendment and the fact that Justice Thomas completely overlooks that there is not a single—not one -- not a single mention of bearing arms against criminal confrontation for an ordinary citizen in any of the Constitutional Convention debate, in any of the debate over the Constitution, in any of the anti-federalist materials on the Constitution, in none of the ratification debates -- in fact, every known mention of “bear arms” in the state ratification debates and during the Constitutional Convention was all about militia service.

 

Well, you may say, “Well, but that’s -- you can’t say that bearing arms was restricted to the military when the right to keep arms is -- the Court has already held is not restricted to the military.” Well, possibly this corpus linguistics evidence was not available to the Court in Heller. And presumably, a real originalist who really wanted to get to the public understanding would probably want to look. “Well, how did people at that time use this language?”

 

And it’s actually pretty, I think, theoretically and practically possible to have a right to keep arms in your home for any lawful purpose and then say, “Well, but the right to bear arms had a specialized meaning that was referenced in the military context.” I know that doesn’t meet modern conceptions of what “bearing arms” means. But again, we’re trying to find the original public understanding, not the public understanding today.

 

So the history behind bearing arms to mean you have a right to carry a gun in case of confrontation against a criminal is profoundly ahistorical and flies in the face of overwhelming evidence that the public understanding of this terminology was in a military context.

 

Now, I want to look at history and tradition. As Professor Leider and Professor Lund have mentioned, the Court says that the way that the Court’s going to approach Second Amendment burdens in the future—and in this case—is by looking to history and tradition. To justify a firearms regulation, the government must demonstrate that the regulation is consistent with the nation’s historical tradition of firearms regulation.

 

I kind of like a history and tradition test because I’ve written on the history of the Second Amendment. I kind of think that that’s kind of an interesting way to think about constitutional law. But the Court, in doing so, rejects “the means-ends scrutiny,” right? It says, “No intermediate scrutiny, no strict scrutiny.”

 

And then in what can only be seen -- and I know I got lots of Justice Thomas fans out there, so I say this with a little tongue-in-cheek. But there’s a little bit of gaslighting that’s happening in this opinion. Justice Thomas says, “This Second Amendment standard”—that is to say, history and tradition—“accords with how we protect other rights.” Really? Seriously? You really want to sell that story to a constitutional law crowd?

 

I’ve been teaching constitutional law for 20 years. I got textbooks like this all lining my shelves. They’re all filled with strict scrutiny, intermediate scrutiny, and other kinds of balancing tests that use means-ends testing to determine how we protect rights. If you look through this book, you know how many rights are going to really accord with a history and tradition test to determine whether a burden is constitutionally permissible today? Maybe a page or two, one or two rights out there, but none of the biggies, right? So this Second Amendment standard accords with how we protect other rights?

 

Now again, you could say, “Hey, I think history and tradition is the right way to do it, and means-ends testing is the wrong way to do it.” That’s okay. I think that’s a justifiable position. But to try to tell us that this is totally standard operating procedure when constitutional law for the last half century has been exactly the opposite of that is a bit of gaslighting.

 

Now, how does the Court do history and tradition analysis? Well, here, we have perhaps the most problematic aspect of the Supreme Court’s opinion here.

 

The Court says, “We’re going to look to the history and tradition of gun regulation.” But what we find is what I think can be accurately described as a kind of Goldilocks originalism. That is to say, like Goldilocks, “This one is too hot. This one is too cold.” The Court approaches history with a kind of, “Well, there is old English common law that has very -- that potentially has serious restrictions on concealed carry.” But the Court says, “That’s too old. That’s not very informative. It fell into disuse probably, we suppose.” But the Court doesn’t really have much evidence to support that.

 

There’s colonial law. The Court says, “Well, there are three examples of laws in the Colonial era that have heavy restrictions on concealed carry.” But the Court says, “But three examples, that’s not really enough, and those three examples may have been applied differently”—only perhaps to terrorize the public, although the Court doesn’t offer really any persuasive account for why that is the case. But the Court says, “Look, three examples? Not enough.”

 

Well, then we get to the early nineteenth century, and the Court has to admit that there’s a lot of early nineteenth century restrictions on concealed carry. Some of them were only concealed carry restrictions and allowed open carry. Some were surety laws that Professor Leider has written about elsewhere. But these also include Texas. As the Court says, there are two Texas Supreme Court cases where Texas had a law that the Court says, in the Court’s description, was analogous to New York’s proper cause permitting. But the Court says, “Oh, those were outliers.”

 

Well, then we get to territorial bans, bans in the territories that ban—like places like Tombstone, Arizona, did—public carry entirely. No concealed carry, no open carry, no carry. The Court says, “Well, those are two exceptional -- those really were just in the territories and not about the constitutional right.” Again, outliers.

 

And then we get to the twentieth century. Well, remember that there were decades of the twentieth century where nearly every state in the Union had proper cause permitting—nearly every state. The Court says, “Well, those are too new. We can’t count those. Those don’t tell us anything about the original understanding of the Second Amendment or even of the Fourteenth Amendment.”

 

So what we have is this huge amount of law that goes throughout -- from English common law all the way to the modern day that reflects a wide variety of different kinds of restrictions on concealed carry. “But none of them are analogous,” the Court says. They’re all outliers.

 

Remember that the Heller Court said that the majority of nineteenth-century courts—to consider the question—held that prohibitions on carrying concealed weapons were lawful. And remember that New York didn’t completely prohibit concealed carry—came pretty close, I think we can admit that, but didn’t completely prohibit. And in fact, the gentlemen -- the plaintiffs in this particular case had received limited permits to carry firearms in certain circumstances and certain places—something far less than a prohibition.

 

I think what this tradition really tells us is that when looking at history and tradition, we have to be attentive to the level of generality. The Court goes back, and it wants to see a law that’s exactly like New York’s law—even though the Court itself says, “Well, it doesn’t have to be an exact match.” But you have a whole bunch of laws that are heavy restrictions on concealed carry, but they’re not exact matches, and so the Court dismisses them.

 

I think the proper way to do history and tradition is to be sensitive about the level of generality. What the history really shows is that over the course of American history, legislatures have been recognized to have pretty broad leeway over the restrictions on carrying of firearms. And different states did it different ways. Some states chose not to provide many limits at all. Some states provided very extensive limits. And what that really shows is that government has been recognized to have that power for a long time. And some states use it; some states don’t. That’s what the history and tradition really shows us.

 

And note that for those fans of history and tradition and for those who believe that an originalist is the right way to go, there -- Thomas’ opinion includes really significant departures from history and tradition analysis. So, for instance, Thomas says that states can still regulate and prohibit guns from sensitive places. Okay. Well, sensitive places, like courthouses, school, bars, whatnot—well, where’s the history and tradition behind that?

 

Well, the Court does cite -- it says, “There’s two examples from the 1800s of a sensitive places restriction.” Truth be told, there were very few sensitive places restrictions in the 1800s. But the Court says, “There are two of them, and that tells us that government has the power to regulate sensitive places.” But recall that the Court said that the three examples of strict concealed carry rules was simply not enough and didn’t tell us anything about what government’s power really was. So two is good enough for sensitive places, but not good enough for more -- other kinds of restrictions on concealed carry.

 

The Court also departs from history and tradition when it says that states can require objective shall-issue permitting rules. Shall-issue is a totally modern twentieth-century invention. There were no shall-issue permitting laws in the 1800s—at least I haven’t seen any evidence of that. And the Court doesn’t offer any evidence of that, right?

 

So the Court says, “We ought to stick to history and tradition, but you know what? We really don’t want guns in the Courthouse—in our Supreme Court building. So you can ban guns from sensitive places, and you can have shall-issue permitting because that seems like a decent idea.” But again, that’s not history and tradition doing the work. It’s modern-day sensibilities. It’s modern constitutionalism.

 

I’m reminded when I read the opinion of Professor Lund’s critique of the Heller case. Remember that Professor Lund critiqued the Heller case by saying, “It was bad originalism” because the Court says that -- and basically creates exceptions for restrictions on guns in sensitive places, restrictions on guns to felons or people who are adjudicated, mentally ill, and commercial sales restrictions.

 

And Professor Lund, I think, accurately said, “Where is the history and tradition behind that? Where’s the original public understanding that supports those exceptions?” There really aren’t -- there really isn’t any, right? What they’re a reflection of is a compromise to support what everyone in America thinks are pretty much appropriate mainstream regulations of guns, even though they’re not supported by the original understanding.

 

Now when we look to the future of history and tradition, I think we see that the history and tradition test is going to prove incredibly problematic for the Court going forward. Number one, it’s theoretically problematic because it requires -- what it does is it says that government only has the power to act if it has acted that way in the past. But the incentive structure that creates is that government must always act to the very boundary of its power in order for it to preserve that power.

 

Well, I don’t know about you, but I think that’s bad for liberty. I want government—even if it has the power to go to here—I want it sometimes only to go to here, right? Even though it might have the power to go to here in other cases, I’d prefer it to create space for liberty. But this history and tradition test really forces government now to think, “Well, if we don’t act to protect our government power, then we won’t have it in the future.”

 

I also think it’s problematic theoretically because the history and tradition test does -- how is it going to deal with innovation? So, for instance, red flag laws are a modern innovation, totally new—restrictions on people having guns who -- people who are mentally ill or adjudicated mental incapacity. That’s a modern innovation just from the 1960s. The Founders didn’t even understand mental illness the way we did.

 

And so, I think that this history and tradition test really prevents government from innovating even though the gun technology is innovating all the time, and guns are incredibly more dangerous today than they were in the Founding era. But government is stuck to those old forms of regulation.

 

I also think it’s problematic practically and in part because we have a history of racist gun laws in this country. What is the Court going to do about those racist gun laws? Does an old law that was a racist gun law -- does that mean government doesn’t have the power to enact a gun law of that sort today? Well, clearly not if it’s racist, right? We don’t allow racial discrimination. We have an Equal Protection Clause.

 

But nonetheless, it could be that the government had the power to completely ban concealed carry as it did for black people through much of American history. Is that just a reflection of racism, or is it a reflection the government also has the power to ban guns or ban concealed carry? I think that there’s going to be a host of very difficult problems that the Court’s going to have to go through when trying to figure out what the history of gun legislation really means for today.

 

And if the goal of the history and tradition test is—as Justice Kavanaugh and Justice Thomas have said—to tie the judges’ hands, to bring objectivity into constitutional law, I think that’s really betrayed by this opinion because what we see is that the Court is really empowered to say, “This law is analogous. This law is not analogous. This law is just like it, and this one’s not just like it. This law, like sensitive places, that’s good enough. Yeah, that’s a good enough example of what we can do today, even if the history is much weaker than the history for something like serious restrictions on concealed carry.”

 

And again, I think there’s a good basis for striking down New York’s law. New York’s law doled out permits on the basis of government discretion. I think if you believe that there’s a right to carry a firearm in public—and I think a lot of Americans do believe that -- and a good living constitutionalist could come up with that argument and say that “Yeah, you have a right to carry because Americans have respected that ability for a long time even if the Second Amendment doesn’t do the work.” And that discretion might be a good basis for striking that law down. But again, that’s modern jurisprudence. That’s not because of history and tradition.

 

So I think that we have an opinion here that really puts originalism—or portrays originalism—in really its worst light. It is poor history. It’s poor originalism. And when it comes to actually doing the work of looking at history on things that the Court might actually like, like sensitive places restrictions or the meaning of “bear arms,” well, there, the Court sort of skips over the whole practice.

 

So that’s my sense of this case and my critique, and I’m curious to hear what Professor Leider or others have to say about it.

 

Robert Leider:  I am not able to hear you, Professor Lund.

 

Nelson Lund:  I’m sorry. I think we’ll have one more round for each of you to talk briefly about what the other had said here today, starting with you, Professor Leider.

 

Robert Leider:  All right. I’ll go very fast because I do want to leave time for questions. But let me just take the points. Sorry, Adam.

 

First of all, on the corpus linguistics stuff, I’m deeply skeptical of the value of these corpus linguistic databases. I think there’s a lot of input bias into what goes into these. The fact that four percent said that “bear arms” could have a non-military meaning means that “bear arms” was not exclusive to military application. And so, once you can see that, you’re in the zone of plausible linguistic meaning.

 

I also think they tend to be biased because of the things that get published. They are going to be things of national value, like there is a war going on. So, of course, you’re going to talk about bearing arms in the military because the things that are going to be published in the newspaper—or whatever your source collection is—are going to be things that are national events.

 

They’re not going to be things about carrying guns under domestic law when domestic law, at that time, did not really regulate gun carrying that much. And so, with no regulations in place, there is no reason to discuss it. So, of course, there is some slant. If all you’re doing is counting sources on one side versus sources in another, you’re not going to -- it’s going to be a very biased input.

 

Second, on the debates at the framing -- of course the debates at the framing primarily revolve around the militia system, and I think this for a few reasons. Number one, there was no federal police power granted in the Constitution except in the territories. The power of the federal government initially to regulate guns would’ve been incidental to its power to provide for arming the militia.

 

So, of course, there is parody between what the Second Amendment says in the affirmative grant of power in Article I Section 8. The federal government would not have had the ability to otherwise regulate the general law right to bear arms—except in the territories—which probably escaped the attention, at that point, of the Constitutional Convention and the state-ratifying conventions. And the problem is, now, we have a federal government that has infinitely more power than it had at the framing.

 

And so, the question is—at the point at which the government is exercising power over the general law right to bear arms that it couldn’t exercise—are we going to understand the Second Amendment as protecting the right as the preexisting right, or are we going to narrow it artificially to just military-related purposes because the framers never envisioned that the federal government would exercise the power that it’s exercising in the first place?

 

Second, I would push back very hard against the view that bearing arms was exclusive to the militia. It was not. The other major area where people were bearing arms was in the posse comitatus. And this, I think, reflects that law enforcement in the 18th century and before was heavily decentralized and that individuals—both as part of a posse and on their own authority—could bear arms to keep the peace.

 

And when you look at bearing arms for private self-defense today, you cannot forget that it is independently -- the use of deadly force in self-defense is independently justified both as an act of individual self-defense and as an act of law enforcement for the prevention of a forcible felony. And if you go back to the old common law textbooks, they do give individuals a right to bear arms and recognize the common law power to bear arms to keep the peace.

 

In terms of the laws that existed historically, I think you have to look at them with the kind of specificity that Bruen did. Tombstone city itself did not have a general ban on carry. It had initially a ban without a permit. And then, when it replaced the ban without a permit, it accepted from it army- and navy-style revolvers. And why did it do that? Because I think the Tombstone council recognized that, under prevailing law, it could not enact a general ban. And so it enacted the almost general ban of the kind that was in Tennessee and Arkansas at the time. It wanted to go as far as it could, but not too far. And virtually every state allowed some manner of bearing arms.

 

Now, there were some early territorial laws that prohibited carrying in towns. But a few things to note about these laws: Number one, they apply to a very, very small portion of the state. Number two, they had significant exceptions, such as for travelers. And number three, most of these laws were never challenged, so there are no court decisions developed around them.

 

There were a few challenges of these early laws, and they were struck down. You see one example in Idaho in 1902, and New Mexico was not challenged. But when a legacy town ordinance became challenged after New Mexico had changed its state law, the New Mexico court also struck that down. So just because these laws existed didn’t mean they were constitutional. And a lot of these laws were, in fact, constitutionally dubious.

 

Finally, in terms of the twentieth century, I think there were very few states that had both proper-cause permitting and a general ban on carry. There were a few, such as Massachusetts and New York. But most of the states that adopted proper-cause licensing adopted it only for concealed weapons. Weapons that were carried openly did not require a license, and it was, I think, historically rooted to the idea that legislatures did not have the recognized authority to enact a general ban on carry.

 

The laws did not really prohibit any carrying of a weapon in a lot of these jurisdictions, such as New Jersey and Illinois, until the 1960s when added to the ban on carrying concealed weapons was a separate ban that prohibited carrying firearms in incorporated areas. And this happens in California, Illinois, and New Jersey. But these sort of total bans actually become operative in the 1960s and not earlier. So I will leave it there.

 

Nelson Lund:  Okay. Professor Winkler?

 

Adam Winkler:  I’m going to basically just leave it on the table. I mean, I’ll just respond to that last point by saying through most of the twentieth century, people just did not carry open arms in cities. You see plenty of photographs of New York and other big cities in the 1920s, ‘30s, and ‘40s, even big shots of streets and streetcars, and no one is openly carrying firearms.

 

The truth of the matter is the states restricted concealed carry of firearms, and maybe states did allow open carry of firearms because no one was doing it in America’s cities. No one was doing it. It was not considered a problem. So that’s not to say that people didn’t do it in rural areas and there wasn’t [inaudible 51:54] some communities in which maybe it was more common than others.

 

But we’ve seen the photographs. It’s not like this is some -- people are not carrying their rifles around New York City in the 1920s. It’s just not happening. So the fact that open carry was allowed in some circumstances is just because states did not view that as a problem that required some regulation.

 

And other than that, I’d be happy to just open it up to the floor for questions, and I’m sure there’ll be some good ones.

 

Nelson Lund:  Okay. I wish we had at least another hour because I have enough questions for both of you to take up another hour, I think, but we don’t. So I think I’m going to ask Ryan to invite somebody from the audience to ask a question.

 

Ryan Lacey:  Yeah, absolutely. If you have questions with the time remaining, you can put them in the Q&A section at the bottom of your screen, and I will read them—starting with the first question. So what’s going on in the states? There’s six states that had those may-issue regimes that were struck down. What is going on now in the Hawaiis and New Yorks, and what is the next step for their licensing regimes going forward?

 

Adam Winkler:  Well, I can jump on this, Professor Leider, if you don’t -- if that’s okay with you. I know in California, for instance, and in other states, they’ve announced they are no longer going to be enforcing the proper-cause requirements that they’ve had in their laws.

 

      However, the Court -- because of the Court’s focus on proper-cause permitting, the Court did not say that discretionary permitting is unconstitutional. It said that proper-cause permitting is unconstitutional. And as a result, like in California, we always had not only proper-cause permitting—or we’ve had proper cause permitting since the 1930s or so—we also have a requirement that says to get a carry permit, you have to have good moral character. Again, a relatively discretionary feature, something that all of us as lawyers are familiar with because we had to prove it to become members of the bar.

 

      And California announced that they are going to enforce all of the other restrictions that they have in the concealed carry world for permitting that are currently on the books, with the exception of the proper cause. The attorney general issued a directive to sheriffs and law enforcement that they must continue to determine that someone has good moral character before getting a firearms -- a carry license. And so I think what this is going to do is, obviously, lead to much, much litigation.

 

I note, too, by the way, that if states wanted to, you could have objective shall-issue permitting that’s incredibly burdensome. If you want to be a hairdresser in the State of California and use chemicals that are potentially dangerous on someone’s head, you have to do 1,600 hours of education at a state-licensed facility. If you want to be a pesticides applicator—that is, to put pesticides in someone’s home that could -- that are toxic—you have to -- again, hundreds of hours of training to get that license.

 

So you could see states -- no states have done this yet. I don’t know that any states are going to do this. I don’t know, necessarily, it would be upheld by these courts and by the Supreme Court. But you could have objective permitting requirements, like we do for lots of other potentially dangerous activities, that are really very, very burdensome.

 

And it’ll be interesting to see—now that the playing field is no longer between discretion and shall-issue—what kinds of shall-issue permitting regimes we’re going to see arise in states like California and New York and others that as -- I think as Professor Leider said earlier just not going to -- there’s going to be resistance to this opinion, and that’s going to be reflected in legislation in the coming years.

 

Robert Leider:  Yeah. So three things. Adam mentioned the first—that states are dispensing with their good-cause requirement. All the states have done so. Hawaii has done so for concealed carry but not for open carry, and Rhode Island has done so for town licenses but not the attorney general’s license. The attorney general is saying, “Well, you can go to the town. So I’m still going to issue on a proper-cause basis for my licenses.” So that’s one.

 

The second is going to be how far can you drive sensitive places. And I think some of the -- I think a lot of this is going to be determined politically. States that have very, very pro-gun control legislatures are going to enact laws, like New York just did, expanding drastically the number of sensitive places and, as Adam noted, the number of hours that you need to be trained. Jurisdictions, like Maryland, where the governor is a Republican, and the legislature is a -- is Democratic may not end up doing this.

 

And so, in Maryland, they just dropped the proper-cause requirement. They still have discretion, as Adam noted. They still have training requirements. But there’s not the ability, at the moment, to get new restrictions added. And so, people -- one of the ironies of these may-issue states is that it was very difficult to get the license, but once you got the license, there were very few restrictions on what you could do. I think those days are over. There will be, in California and New York, a lot of restrictions.

 

And I think the third thing is that states are now experimenting with the ability to co-op private property and private business owners to basically do the gun control work for them. And so, New York has done something as part of its law where it has decided that guns are prohibited on all private property except where the owner has given express consent. And I think with a Court that is both favorable to the Second Amendment and very protective of private property, there is going to be a lot of controversy about what to do about these laws that require affirmative consent to bring the guns on.

 

One thing I will note about New York’s law, though, is it’s very gerrymandered. It requires affirmative consent for ordinary pistol license holders but not for retired police officers, even though retired police officers do not act with the authority of the state. So I think there are a lot of areas where this is going to still, as Adam noted, be subject to much litigation.

 

Nelson Lund:  We’re almost out of time, but I’d like to ask a follow-up question and maybe get a very brief answer from each of you on this last topic. In Bruen, Justice Thomas’ majority opinion when he endorsed shall-issue laws, he’s also said that if states abuse their right to enact those laws in a way that’s designed to frustrate the exercise of the constitutional right, that won’t be tolerated.

 

      And what I’d like to ask each of you—again very briefly—is, is it going to be possible for the Supreme Court or any of the lower courts to actually enforce that without doing means-end scrutiny whether it’s under that name or some other name? Now presumably, nobody’s going to ever breathe the tiers of scrutiny words again in the Supreme Court for the foreseeable future. But it obviously can be done under a different name and with somewhat different parameters.

 

      So I’m just wondering, can they really enforce that order to the lower courts, which presumably applies to themselves as well without -- by doing simply text, history, and tradition?

 

Robert Leider:  I don’t think they’re going to be able to enforce it no matter what they do. One of the things about New York is it’s very good at having a system that, as a whole, produces enormous burdens on the right but for which it’s very hard to pick any individual feature of the system and say, “That individual feature standing alone went too far.”

 

A New York City license is going to cost around $1,000 by the time you get done with licensing fees, fingerprint fees, and training fees, and time off from work to go down to the police station to do it. It’s going to be around $1,000 every two or three years. It will price out the poor. It will be very much an upper middle class right. But I just don’t see that the Court is going to be able to enforce stringently ways of the 16 hours of training—the $400 fee instead of $200. It’s very hard, again, to pick out an individual feature that has gone too far even though the system as a whole is very much problematic.

 

Nelson Lund:  Mr. Winkler?

 

Adam Winkler:  Yeah, I’ll generally agree. I mean, I think the way that they’ll do it is they’ll say—just like in case—“Well, there’s no historical analog for a restriction like this.” And so, they’ll say, “Oh, it’s unconstitutional.” But again, because there’s no historical analog for any shall-issue permitting before the twentieth century, it’s going to be very difficult to say that it’s okay to require 12 hours of training but not 400 hours of training, at least based on history and tradition.

 

Nelson Lund:  Okay. Well, I’ve got more follow-up questions about that as well as almost everything else that we’ve talked about today, but I think we’re out of time. Ryan, is that right?

 

Ryan Lacey:  Yes. And on behalf of The Federalist Society, I want to thank our panel for the benefit of their time and expertise today. And I would like to thank our audience for joining us and for participating, especially with your questions. I’m sorry that we did not get to more of them. But as Professor Lund said, I think we could spend another hour asking questions and talking about this case.

 

      We welcome listener feedback by email at info@fed-soc.org. And as always, keep an eye on our website and your emails for announcements about upcoming webinars and other programming.

 

      With that, thank you for being with us today. We are adjourned.

 

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