“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” New York State Rifle & Pistol Association v. Bruen (2022), set out a bold new standard of review for Second Amendment cases. The Court rightly repudiated the intermediate-scrutiny approach adopted by the circuit courts after District of Columbia v. Heller (2008). Bruen purported to require that any gun regulation falling within the plain text of the Amendment be upheld only if the government can demonstrate that the regulation is consistent with America’s historical tradition of firearm regulation. United States v. Rahimi (2024) confirmed what was already clear in Bruen: that a majority of the Justices are not prepared to take this seemingly rigorous historical test seriously. This Article considers and rejects an innovative interpretation of Bruen, offered by William Baude and Robert Leider, under which Second Amendment jurisprudence would become a form of common-law constitutionalism. The Article also considers and rejects an effort by J. Joel Alicea to interpret Bruen in a way that justifies Rahimi’s extremely elastic application of the history-and-tradition test. The Article argues that a better alternative to Bruen is the more traditional application of means-end scrutiny to advance the primary purpose of the Second Amendment, which is to protect the fundamental natural right of self-defense. In addition to showing that Rahimi did not apply Bruen faithfully, the Article explains why the statute at issue in Rahimi is unconstitutional.
Nelson Lund (Wed,) studied this question.