Does Bruen Violate the Tenth Amendment?

Eric Segall reviews a new article co-written by Jake Charles (a law professor with an expertise in Second Amendment issues who teaches at Pepperdine, that is, not a liberal school) that comes at criticism of Bruen from a state rights lens. 

The opinion, limited by a later case, uses a historical analogue approach. Modern day regulations need to overlap with regulations, and there have to be enough examples (how many?) to satisfy the justices, from the founding era. Not totally clear if that would be 1791 (2A) or 1868 (14A).  

This approach can be challenged on multiple grounds. A major criticism is that it is simply not practical. It has led to confusion in the lower courts. There is also the general problem with originalist-like approaches. Things change. We cannot sensibly be tied to what was done in the distant past.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The article frames things in a Tenth Amendment fashion. The Tenth Amendment is a statement of principle. Applying that principle can take us in various directions. It overall promotes federalism, including protecting state power in different ways.

The authors argue that federalism includes the principle that states have the discretion to make policy. This discretion is limited by individual rights and congressional powers. This is not about a criticism of the RKBA overall. It is about the discretion states have to regulate, with the right taken for granted.

States did not regulate in the past for a variety of reasons. They were limited by constitutional requirements. A state cannot censor based on viewpoint. It cannot favor certain religious sects.

OTOH, just because they did not regulate did not mean they could not regulate. Bruen, along with other misplaced "history and tradition" tests, wrongly limit state discretion based on what they did not do. 

Why didn't they do it? A range of reasons, including different times requiring different rules. This is where a "living" (the horror!) approach reaffirms basic constitutional principles.  States, over time, develop new ways of doing things, learning as they go along. That is fine. The Constitution allows it. 

Eric Segall offers that the argument is open-ended. It does provide a basic rule that guards against misguided interference with state power. Depending on the specifics, it can apply to cases (think abortion rights) that liberals like. But that also goes to underlining rights. 

Things often can be framed in different ways. Lawyers know this. They can acknowledge or use certain frames to advance their goals. Some frames are appreciated by certain people. 

Conservatives regularly support state rights. Liberals call out their hypocrisy for selectively supporting them. Conservatives will tend to explain, "This is different." It can be helpful to use the same language and debate details.

The article frames things as a matter of Tenth Amendment rights and powers. The people have the right to pass certain types of laws and have the discretion to do so. 

This is not about a dislike of guns. It is about how artificial restraints interfere with legitimate state power. The argument fits in with "originalist" arguments. The article has plenty of 19th-century quotes to back up its arguments. History, like religion, is not just something for conservatives. 

The sloppiness of Bruen (as Segall notes) is not something to ignore. It's part of the overall discussion. If you like the RKBA, effectively upholding it should be a concern of yours. A sloppy approach, one that has to be treated like a round peg in a square hole to sensibly apply, is rather counterproductive. 

The article, however, is not just a disagreement with the opinion or statement on why it is impractical. It provides a federalism-friendly approach that brings together both sides.  

One criticism that I saw suggests it wrongly tries to argue that it provides a novel new theory. If you want to say it doesn't say anything special, that's fine. Articles can reinforce old principles, sometimes in slightly different ways.

It does not, as the person claimed, merely disagree with Bruen. It notes upfront that there are different ways to disagree with the opinion. It frames things a certain way. It grants RKBA. It honors federalism. 

The article is a helpful approach to provide a reasonable criticism of the current law that offers a sane path. It has implications that will not please all critics. For instance, if you are not a fan of gun rights or are rather absolutist about upholding them.* 

Overall, I think it is a helpful approach. Not magic. 

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Note:  A true "history and tradition" approach to rights would leave open a lot of regulations, more than most people support under current law. 

Many people selectively realize this. They will accept more rights when applying the Constitution today, even if originally people would not think them necessary in one area of the law, but not others. 

Then, it will be "no one would have thought about that!" Cf. corporate speech with LGBTQ rights.