Joel Alicea defends one of the U.S. Supreme Court’s most consequential decisions.
New York State Rifle & Pistol Association v. Bruen is one of the most methodologically significant—and widely maligned—constitutional law decisions of the last several decades. By rejecting the tiers of scrutiny that have loomed large in rights jurisprudence since the 1960s and substituting a text-and-history test for Second Amendment cases, Bruen signals a potential transformation of American constitutional law far beyond the Second Amendment context. Given Bruen’s methodological significance and the text-and-history approach it represents, one might have expected that the debate over Bruen would break down along familiar lines, with originalists defending Bruen and non-originalists critiquing it. Yet, the consensus view among nearly all constitutional scholars is that Bruen’s text-and-history test is a mistake. According to originalists and non-originalists alike, Bruen’s methodology lacks a theoretical justification, is inherently manipulable, and is doomed to fail in its attempt to replace tiers-of-scrutiny-like judicial balancing tests.
I argue that Bruen’s methodology was right. Its theoretical justifications are sound; its methodology is principled; and its capacity to replace judicial balancing tests like the tiers of scrutiny is evident. …
… It is a defense that requires confronting some of the most vexing problems in constitutional law, such as the level-of-generality problem and the role of balancing tests in the adjudication of constitutional rights. …
… When it was decided in June 2022, New York State Rifle & Pistol Association v. Bruen1 began a contest for the future of American constitutional law. Its importance as a landmark Second Amendment decision is obvious enough, but its larger significance is in its rejection of tests like strict or intermediate scrutiny that have loomed large in rights jurisprudence since the 1960s. In their place, Bruen substituted a text-and-history-based test for evaluating the constitutionality of arms regulations that, if successful in the Second Amendment domain, holds out the prospect of displacing the tiers of scrutiny and other judicial balancing tests elsewhere in constitutional law.
