We argue that Bruen’s text and history test has not been properly understood. Bruen is best understood as continuing the Supreme Court’s original law approach to the Second Amendment. Under an original law approach, courts must determine and apply the Framing-era law protecting the right to keep and bear arms. This means that courts must determine the principles that separated valid regulations of the right to bear arms from unconstitutional infringements. Courts must then apply these legal principles to modern forms of regulation. Applying old principles to new facts sometimes requires analogical reasoning and extrapolation, but these are or should be basic tools of legal reasoning. In short, Bruen does not require courts to become historians; it asks that they be common-law judges, applying old law in new times.
Keywords: Bruen, second amendment, bear arms, keep arms, general law, constitution, originalism, original law
Suggested Citation: Suggested Citation
Baude, William and Leider, Robert, The General-Law Right to Bear Arms
(October 31, 2023). Notre Dame Law Review, Vol. 99, p.1466 2024, Available at SSRN: https://ssrn.com/abstract=4618350
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