Professor Jacob Charles, "The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History" -- Duke Law Journal (forthcoming)

Professor Jacob D. Charles's law review article, "The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History," (SSRN) will be published in the Duke Law Journal (forthcoming, 2023). The article critically assesses the Supreme Court's test in New York State Rifle & Pistol Association v. Bruen that future Second Amendment challenges should be evaluated solely with reference to text, history, and tradition.

Abstract of  "The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History"

In June 2022, the Supreme Court struck down a state concealed carry law on Second Amendment grounds. In that decision, New York State Rifle & Pistol Association v. Bruen, the Court declared that future Second Amendment challenges should be evaluated solely with reference to text, history, and tradition. That test is essentially sui generis in the Court’s individual-rights jurisprudence. Yet it represents both an extension of an increasingly historically-focused Supreme Court case law and a harbinger of future doctrinal transformations in other domains.

This Article critically assesses Bruen’s test, and in the process raises concerns about other areas of rights-jurisprudence trending in ever more historically-inflected directions. In critiquing Bruen’s method, the Article foregrounds the unsatisfying justifications for the novel test and its unworkable features. It underscores how Bruen’s emphasis on historical silence imbues an absent past with more explanatory power than it can bear—or than the Court even tries to justify. The Article then synthesizes and analyzes the results from the more than 100 lower federal court decisions applying Bruen, which reveals the test’s fundamental unworkability.

On top of that descriptive and critical work, the Article makes several prescriptive arguments about possible judicial and legislative responses to the decision. For judges, the Article endorses and augments arguments about the use of neutral historical experts appointed by courts, identifies ways that lower courts can usefully underline Bruen’s flaws and mitigate its open texture, and suggests that courts are justified in narrowing Bruen from below. For lawmakers, it argues that when legislatures pass new gun laws, they ought to be explicit about four types of evidence for the law’s constitutionality that track Bruen’s new demands: the purpose for the law, the expected burden on armed self-defense, the precise nature of the problem to which the law is directed, and the historical tradition from which the law springs.