The Left's faulty Second Amendment law-by-analogues approach

In Bruen, the Supreme Court held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” To justify a regulation, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” And that depends on whether there is a relevantly-similar historical analogue. …

ustice Breyer is correct that some judges and others may write “to produce a preordained conclusion,” but his alternative of “interest balancing” through means-ends scrutiny is far worse, because it actually encourages that tendency. His dissent in Heller was preordained to find that D.C.’s handgun ban was valid because the D.C. Council said that handguns were used in crime, and that interest outweighs the Second Amendment. And in Bruen, his policy choices are revealed again in his concern that the historical approach will “make it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.”

Regarding the limited “sensitive places” where firearms may be restricted, Justice Breyer asks: “So where does that leave the many locations in a modern city with no obvious 18th- or 19th-century analogue? What about subways, nightclubs, movie theaters, and sports stadiums?” But there are analogues, and they illustrate how historically gun possession is the default answer. At the Founding, travelers rode on sometimes-lonely roads, taverns serving spirits abounded, parades were frequent, and plays had been around since Shakespeare. And sports? There were shooting matches and festivals, rowdy crowds gathered for wrestling and cockfighting, and of course there was horse racing. And no gun bans were ever enacted to cover any of these circumstances.

Speaking of which, Bruen sparked a new episode that might be entitled: The Empire (State) Strikes Back. Bruen had admonished that “there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.” So New York enacted a law that made so many places off limits to carry a handgun that it is basically impossible to carry in any meaningful way. Reasoning by analogy shows why New York’s approach is unconstitutional.