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UC Law Constitutional Quarterly

Abstract

To pass Second Amendment muster under New York State Rifle & Pistol Association v. Bruen, gun laws encompassed by the Amendment’s plain text must align with our nation’s historical tradition of firearm regulation. A challenged law comports with history and tradition when it is sufficiently analogous to historical regulations along two metrics: “how” and “why” the regulation burdens the right to keep and bear arms.

One glaring ambiguity leftover from Bruen is the level of generality at which courts, when analogizing between laws past and present, must frame a regulation’s “how” and “why”—an issue of major consequence. Characterizing the “how” and “why” at a narrow level of generality sharpens differences between laws, making it harder to find an analogical match. By contrast, reading regulations at a highly abstract level of generality minimizes those differences and paves an easier path to finding two laws analogous. Whether a law survives Second Amendment review thus often depends on the level of generality applied. Leaving the matter unsettled grants significant leeway for jurists to manipulate the analogical game, aggrandizing the very discretion that Bruen sought to reduce. Criticism over this lack of resolution abounds, and the Supreme Court seems poised to potentially tackle the issue “in the next Term or two.” Yet despite the pressing nature of the problem and despite history’s centrality in the Bruen test, courts and scholars have paid relatively little attention to the level of generality applied by historical contemporaries themselves to specific regulations.

This Article is the first scholarship to do so. It argues that because our history displays a tradition of employing high levels of generality for regulatory justifications—the “why”—today’s courts should do the same. Implicit in the claim are two distinct points. First, Bruen’s fealty to history and tradition calls for applying the same level of generality that contemporaries from constitutionally relevant time periods would have applied—a notion largely absent in ongoing Second Amendment litigation. Second, nineteenth- century legal authorities often characterized the regulatory justifications of gun laws at a high level of generality, using abstract phrases like “preventing crime” or “preserving public safety” throughout public commentary, statutory text, and court decisions. These findings carry significant implications for our understanding of the role of “why” in our tradition of regulating firearms and, as a result, for how Bruen’s analogical test should operate.

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