A minor impact on gun laws but a potentially momentous shift in constitutional method

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This article is part of a symposium on the court’s decision in New York State Rifle & Pistol Association v. Bruen.

Randy E. Barnett is the Patrick Hotung professor of constitutional law at the Georgetown University Law Center and the faculty director of the Georgetown Center for the Constitution.  

New York State Rifle & Pistol Association v. Bruen can be analyzed at the level of policy or at the level of constitutional method. At the level of policy, it is quite modest. At the level of constitutional method, it is potentially major, though a lot will depend on how the “text and history” approach employed by Justice Clarence Thomas is defined and applied in the future.

When it comes to the policy, I must offer a full disclosure: I am a concealed-carry permit holder in the District of Columbia. The ordinances governing concealed carry outside the home in D.C. make it a “may issue” regime resembling that of New York. But due to a circuit court opinion in 2017 holding the “may issue” scheme to be unconstitutional, D.C. became a “shall issue” regime. At the behest of gun-control activists, the attorney general of the District of Columbia opted not to petition the Supreme Court lest it concur with the circuit court’s holding, effectively requiring “shall issue” regimes nationwide. Yet, five years later, this is what has now come to pass in Bruen.

After 2017, I was entitled to a license to carry outside my home the handgun that I had a constitutional right to buy and own thanks to District of Columbia v. Heller — provided I met certain requirements. I had to pay an application fee of $75. I had to submit my application in person at the Metropolitan Police Department headquarters and be photographed and fingerprinted at an additional cost of $35. I had to pass a federal background check. I had to enroll in and pay for an approved firearms training course, which included 16 hours of classroom study of D.C. gun laws as well as the law governing the use of deadly force, plus another two hours of range instruction. In 2018, the course cost $250 plus $20 for the range fee. The monetary cost of the license amounted to $380. This was in addition to the $125 tax I paid to D.C. on the purchase of my handgun, which brought the total regulatory cost to $505. Since the course took 18 hours to complete, I took it on a Saturday and a Sunday so as not to lose two days of work.

There being no gun ranges in the District of Columbia, my course was taught in Virginia. The instructor was African American, and most of the other students in the course were members of underrepresented groups, which is unsurprising given the demographics of D.C. Since it is doubtful that any other Georgetown professor has a concealed-carry license, I suppose I too was a member of an underrepresented group. 

Every two years, I must renew the license. If I miss renewing within the 30-day window before my permit expires, I have to start all over. So, two years later, I had to pay another $75 fee and complete a recertification class consisting of four hours of training, and two hours of range training from an MPD-certified firearms training instructor, which cost $160. I can afford all this, of course, though I cannot say the same for all other citizens of D.C.

This is the type of regulatory regime that, in Bruen, the court said it was not questioning: “[N]othing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes.” So, the immediate policy effect of Bruen is the same as the circuit court opinion in 2017 that required D.C. to go from a “may issue” regime to the heavily regulated regime I just described. I am not aware of any gun crimes having been committed by a licensed concealed-carry permit holder in D.C. Perhaps there have been some, but one assumes such an event would have been newsworthy had it happened. This is why I say the policy effect of Bruen is modest.

At the level of method, however, the majority in Bruen adopted a “text and history” approach to constitutional rights that may prove to be momentous, not only for the Second Amendment but for other rights as well. In adopting this approach, the majority purported to reject the much-criticized “tiers of scrutiny” approach that has been a widespread feature of constitutional law since the 1950s. Having heard about the text and history approach before, I was very curious to see how it would work in practice. I am still not sure I completely understand it.

After establishing that there is a constitutional right to carry a firearm outside the home — which was conceded by both parties — Thomas then looked to the history of regulating the right to arms to see if there was any requirement similar to New York’s for carrying outside the home. Apart from some statutes he characterized as “outliers,” Thomas concluded that this type of regulation was not found in the relevant history and therefore it infringed on the right.

I supposed the obvious question to ask is whether a “shall issue” regime like the one I described in D.C., or something analogous to it, can be found in our history. I would think not. But still the court denied it was questioning such a regime.

Yet the court also said that “because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”  So maybe the D.C. regulatory regime is vulnerable after all.

How would the court evaluate the burdens imposed by these regulations under its new approach? Would it ask whether 16 hours of classroom instruction is just too much? Should any classroom instruction be required? Is this an “undue burden” test of the sort that had previously been adopted in Planned Parenthood v. Casey?

For the record, having taken the D.C. concealed-carry course, I can attest that being informed of the vagaries of D.C. gun-possession laws, as well as the basic principles governing armed self-defense, was extremely valuable before one carries in public. This education is at least as valuable as the written “rules of the road” test one initially must pass to get one’s first driver’s license allowing one to operate an automobile on a public thoroughfare.

But this educational benefit could easily be gained in a 2-3 hour class. The rest of the classroom component can be viewed as make-weight and even punitive. Will the court entertain such considerations when evaluating a law like D.C.’s? How else will it smoke out pretextual regulations motivated by hostility to a particular constitutional right — or by hostility to the exercise of the right by members of particular groups? Both would qualify as “abusive ends.”

As he describes it, Thomas’ approach seems to base the existence of a right on a finding that the liberty in question, here the right to carry arms outside the home, had never been restricted. What if a liberty was not prohibited or regulated until the 1930s — say, the use of marijuana for medical purposes. Does that mean it cannot be prohibited or regulated now? I approve of the implication that it cannot be prohibited, though I should think it may still be regulated. What does the majority think? Conversely, on this conception of rights, if history reveals a long tradition of regulation (not prohibition) of a particular liberty, does this mean it cannot be considered a constitutional right?

There is, however, an even more fundamental question raised by Thomas’ text-and-history approach. It seems to assume that, once we use history to identify the “outer contours” of a constitutional right, then any such right bars not only prohibitions on its exercise but also trumps any statutory regulation of it. Prior to the New Deal, however, rights were not viewed as trumps on the regulatory power of government. Instead, the existence of a right barred the complete deprivation of it — that is, a prohibition — and statutes were “strictly” or “equitably” construed to avoid this result. And the existence of a right also required that a regulation be within the power of a legislature to enact. At the federal level, this meant a power delegated to Congress by the Constitution. At the state  level, this meant what is called the state’s “police power.” While broad, the state police power was not unlimited.

Legislative acts that were not good-faith exercises of such powers were considered “pretended” legislation, and not truly a law. As John Marshall explained in McCulloch v. Maryland, “should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal … to say that such an act was not the law of the land.” (Emphases added.)

To assess whether this is the case requires a court to evaluate whether there is a sufficient fit between the ends of the legislation and the means adopted to achieve it. Or, as Alexander Hamilton put the matter: Congress “has only a right to pass such laws as are necessary and proper to accomplish the objects intrusted to it,” and “the relation between the measure and the end … must be the criterion of constitutionality.” This sounds like a means-ends analysis to me.

Thomas seems to want to limit the original scope of a constitutional right by his historical inquiry. And then the right, so limited, may not be restricted in any way. If rights are this absolute, however, then we cannot afford to recognize very many if government is to function. This would explain Thomas’ apparent movement toward an “enumerated rights only” view of constitutional rights (though he has not yet committed himself to this view). But viewing rights as absolute in this way is quite modern and ahistorical, and its invocation in a purportedly originalist opinion is therefore surprising.

Perhaps a better approach would have been to distinguish between prohibiting and regulating the exercise of a right. Any prohibition of the exercise of a constitutional right is per se unconstitutional. In contrast, a regulation of how a right may be exercised is permissible, provided the ends of such a regulation are within the legislative power of Congress or a state.

Under this distinction, because the “special need for self-protection” that was required by the New York system was “distinguishable from that of the general community,” the law amounted to a prohibition on ordinary citizens exercising their constitutional right to bear arms outside the home. Not only was this the scheme’s effect; it was also its intention.

By contrast, D.C.’s “shall issue” regime provides a means by which every “law-abiding” (per the background check) citizen of D.C. can obtain a permit, so it is not a prohibition of the exercise of a constitutional right. Unlike the New York law, it is a “regulation” because it proscribes the manner of exercising the right.

It may not always be easy to distinguish a prohibition of a right from a mere regulation of its exercise. For example, is a ban on a particular class of firearms a prohibition or merely a regulation of the manner by which the right to keep and bear arms may be exercised? However, at the extremes it can be quite obvious, as I think it is with New York’s law and the D.C. and Chicago gun bans the court held to be unconstitutional in Heller and McDonald v. City of Chicago. (Even after Heller, D.C. still regulates the types of firearms that can be kept in the home or carried concealed outside.)

Rather than use modern tiers of scrutiny, when considering the appropriate regulation of constitutional rights, we should look instead to the type of eyes-open arbitrariness or rationality review that preceded the adoption of modern tiers of scrutiny. This is not, I should stress, the same as the modern eyes-closed rational basis scrutiny, which the court today considers its default approach under its tiers-of-scrutiny doctrine. (See Dobbs. “A law regulating abortion, like other health and welfare laws, … must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.”)

I need more time to ponder this implication of Bruen. I await commentary by others as well as future cases to address these and other questions that this new approach to constitutional rights seems to raise. Until then, I concur in the result reached by the majority and in its rejection of the spurious two-step approach that inferior courts have been using to gut the right to keep and bear arms that was upheld in Heller and McDonald.



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