Bruen Was Right

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 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 demonstrable. In Parts I and II of this Article, I provide an exposition of the method and justification of Bruen’s text-and-history inquiry, followed by responses to the principal scholarly criticisms of Bruen’s methodology. In Part III, I examine recent scholarly defenses of Bruen’s rival—the tiers of scrutiny— and argue that Bruen represents a better approach to adjudicating constitutional rights. The combined result of these three Parts is the most comprehensive explication and defense of Bruen’s methodology to date, a defense that is unique in a literature dominated by criticisms of Bruen. 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. Because these problems recur throughout constitutional law, this Article’s contributions are relevant beyond the debate over Bruen—and to originalists and non-originalists alike.