David Kopel | 9.4.2024 5:07 PM

The U.S. Supreme Court in New York State Rifle & Pistol Asssoc. v. Bruen instructed lower courts how to decide right to arms issues: "In keeping with Heller, we hold that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." If so, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." This Post describes how some lower courts are evading Bruen by contrivances that claim particular regulations do not involve "the Second Amendment's plain text."

This Post proceeds as follows:

1. A short overview of how a preliminary step in most constitutional adjudication necessarily involves a look at the plain text of the clause in question.

2. Discussion of the plain text of the Freedom of the Press Clause, which is the Bill of Rights provision most similar to the Second Amendment, in that both involve rights regarding particular man-made tools.

3. Summary of Supreme Court glosses on the meaning of the Second Amendment, which may, at least arguably, save some arms restrictions that could not be justified under Bruen's "historical tradition" test.

4. Summary of some easy cases that held an individual's conduct was not protected by the Second Amendment's plain text.

5. Discussion of cases involving firearms businesses, some of which wrongly claimed that the plain text does not apply to firearms commerce.

6. Discussion of waiting periods, shooting range zoning, rifle bans, and serial number cases that incorrectly claimed that the activity at issue was not covered by the Second Amendment's plain text. In most of these cases, the courts conducted an alternative analysis that upheld the challenged law under the historical tradition test, so the erroneous rulings about plain text might be considered harmless error. This Post does not examine the quality of reasoning of any court's application of the historical tradition test.

7. Finally, the Post discusses a pair of cases where judicial error about plain text clearly changed the result. When deciding challenges to prohibitory laws about switchblade knives, the Massachusetts Supreme Judicial Court and the U.S. District Court for the Southern District of California both agreed that the government failed to meet its burden to justify the statutes based on historical tradition. The Massachusetts court therefore held the law unconstitutional, because carrying a switchblade knife is conduct protected by the plain text of the Second Amendment. The California court, however, claimed that even the mere keeping of a switchblade knife in one's home does not involve the plain text of the Second Amendment.

1. Consideration of plain text is usually necessary in constitutional cases

In the Second Amendment, as in most constitutional law cases, a court must first read the plain text to determine if a constitutional provision is relevant. For example, the Eighth Amendment states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Suppose a President knowingly made libelous statements about an individual, and a result, other individuals who were deceived by the President's words stopped doing business with the individual. If the individual sued the President for violation of the Eighth Amendment, courts would dismiss the claim because the President's words did not set any bail condition, nor impose any fine or punishment.

Similarly, if the U.S. Air Force maliciously dropped a bomb on an American's house, killing everyone inside and destroying the building, the victims' families might assert a variety of constitutional claims, but if their pleading included a Third Amendment claim, that claim would be dismissed. The Amendment states: "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." The government's misconduct did not involve the occupation of any home.

Under the common law doctrine of principals and incidents, a constitutional right or power—like any other contract term, unless there are express reservations—includes lesser, "incidental" powers and rights that are necessary to effectuate the principal power or right. See, e.g., 2 William Blackstone, Commentaries on the Laws of England *347 (1765-69) ("A subject's grant shall be construed to include many things, besides what are expressed, if necessary for the operation of the grant."). Regarding enumerated congressional powers, the Necessary and Proper Clause makes the point explicitly. See, e.g., McCulloch v. Maryland, 17 U.S. 316, 406, 411-16 (1819) ("there is no phrase in the instrument [the Constitution] which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described.").

Similarly, the Sixth Amendment principal "right to have the assistance of counsel for his defence" includes incidental rights such as the counsel having adequate time to prepare a defense, and being able to confer privately with the defendant. The plain text of the Sixth Amendment does not resolve every constitutional question—such as under what conditions the right to counsel may be waived, or whether there should be special rules for waiver by juveniles — but the plain text does tell us that waiver of counsel is a Sixth Amendment issue.

In Luis v. United States, a four-Justice plurality held that governmental pretrial seizure of a defendant's untainted assets violated his Sixth Amendment right to pay for an attorney. 136 S.Ct. 1083 (2016). While the plurality used a balancing test, Justice Thomas's concurrence focused on plain text, and the doctrine of principals and incidents:

The law has long recognized that the "[a]uthorization of an act also authorizes a necessary predicate act." A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 192 (2012) (discussing the "predicate-act canon"). As Thomas Cooley put it with respect to Government powers, "where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one, or the performance of the other, is also conferred." Constitutional Limitations 63 (1868); see 1 J. Kent, Commentaries on American Law 464 (13th ed. 1884) ("[W]henever a power is given by a statute, everything necessary to the making of it effectual or requisite to attain the end is implied"). This logic equally applies to individual rights. After all, many rights are powers reserved to the People rather than delegated to the Government. Cf. U.S. Const., Amdt. 10 ("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").

Constitutional rights thus implicitly protect those closely related acts necessary to their exercise. "There comes a point … at which the regulation of action intimately and unavoidably connected with [a right] is a regulation of [the right] itself." Hill v. Colorado, 530 U.S. 703, 745 (2000) (Scalia, J., dissenting). The right to keep and bear arms, for example, "implies a corresponding right to obtain the bullets necessary to use them," Jackson v. City and County of San Francisco, 746 F.3d 953, 967 (C.A.9 2014) (internal quotation marks omitted), and "to acquire and maintain proficiency in their use," Ezell v. Chicago, 651 F.3d 684, 704 (C.A.7 2011). See District of Columbia v. Heller, 554 U.S. 570, 617–618 (2008) (citing T. Cooley, General Principles of Constitutional Law 271 (2d ed. 1891) (discussing the implicit right to train with weapons)); United States v. Miller, 307 U.S. 174, 180 (1939) (citing 1 H. Osgood, The American Colonies in the 17th Century 499 (1904) (discussing the implicit right to possess ammunition)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discussing both rights). Without protection for these closely related rights, the Second Amendment would be toothless. Likewise, the First Amendment "right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise." McConnell v. Federal Election Comm'n, 540 U.S. 93, 252 (2003) (Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part).

Id. at 1097-98.

Constitutional text is not meant to be read in such a hyperliteral manner as to effectuate a nullification of the right. The "right to keep and bear Arms" is, most literally, a right to possess and carry. The literal text does not mention a right to use arms (such as by shooting a firearm or bow, or cutting with a knife). Not does the right to "keep and bear Arms" expressly mention ammunition, such as cartridges for firearms or arrows for bows. Yet any reasonable reading of the "plain text" of the Second Amendment includes the right to keep and carry ammunition and to shoot that ammunition.

2. The Freedom of the Press Clause

To consider what is meant by the "plain text" of the Second Amendment, consider the Amendment's close relative, the First Amendment "freedom . . . of the press."

To the modern sensibilities, the historical connection between arms and the press may seem odd. But, to the Framing generation, the connection would have been commonsensical. The right to bear arms and the freedom of the press presented the exact same type of question for the Framers: can there ever be a natural right to a man-made device? In the case of arms and presses, the Framers believed so.

Edward Lee, Guns and Speech Technologies: How the Right to Bear Arms Affects Copyright Regulations of Speech Technologies, 17 Wm. & Mary Bill Rts. J. 1037, 1048-49 (2009).

First, we see by context that the constitutional text only includes some of the possible meanings of "press" or "arms." The First Amendment is about presses that affix communications to a medium, not about wine presses. The Second Amendment is about weapons and armor (both which were considered "arms" in dictionaries of the time), and not about the sides of chairs or sofas.

A judge who was hostile to existence of nongovernment newspapers might claim that the First Amendment "plain text" includes solely the right to own a printing press without being punished by the government. However, the more plausible reading of the plain text would include, besides the right to own a printing press:

The plain text of "the freedom . . . of the press" also includes the right to use a press for any purpose one chooses, subject to exceptions "consistent with this Nation's historical tradition" of press regulation, such as libel or obscenity.

All of the above is easily transposable to the plain text of the Second Amendment, and many lower courts, adhering to Bruen and its predecessors Heller and McDonald have done so. Having made the easy determination that "the Second Amendment's plain text covers an individual's conduct," these courts then proceed to the Bruen original understanding inquiry, wherein the government may attempt to "demonstrate that the regulation is........

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