Recent Articles in Volume 78, Issue 2 (2025)
By Deborah Azrael, Joseph Blocher, Philip J. Cook, David Hemenway, and Matthew Miller – For a paper that has not yet been through peer review or even been formally published, William English’s “2021 National Firearms Survey” has been remarkably prominent in gun rights advocacy and scholarship. As of December 2024, it has been cited in roughly sixty-five briefs, invoked at oral argument in the Supreme Court and multiple courts of appeals, and regularly cited in public writings and published academic work.
This response is offered in the spirit of a peer review. Our focus is on methodological issues, questionable statistical results, and problematic conclusions. Because of serious methodological issues, English’s draft fails to provide a reliable estimate of the number of annual defensive gun uses, the stock of AR-15s, or the actual protective value of or frequency with which AR-15 type firearms have been used. The paper should not be used as an authoritative source. []
By Amanda L. Tyler – Just how originalist is the Court’s Second Amendment jurisprudence after United States v. Rahimi? This is perhaps one of the biggest questions left in the decision’s wake. As it turns out, the answer is not altogether clear post-Rahimi. This is because the case produced some seven separate opinions, many of which—even though they agree as to the bottom line—get there by very different paths. This Article suggests that Rahimi, perhaps more than any other recent decision by the Court, underscores the crucial role that levels of generality in constitutional interpretation play, while illustrating the problems with originalism and how, when faced with a choice between strict adherence to originalism’s core ideals and avoiding deeply undesirable results, many justices—even those who purport to be originalists—will forsake originalism for a far more pragmatic approach to constitutional interpretation. In the end, when the various opinions in Rahimi are dissected, one finds considerable support for the notion that the Justices are “look[ing] for the central purposes of the relevant constitutional provision and tr[ying] to apply it in a vastly different world.” Whatever it is, such an approach is decidedly not originalism. []
By Allison Orr Larsen – Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning—weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of fact-finding—generalized and closer to policy—such that we want appellate judges to make the calls after studying in the law library or digesting dozens of amicus briefs? Each alternative identity carries significant practical litigation consequences, and—because of those consequences—the players are motivated to manipulate the different labels in strategic ways. []
By F. Lee Francis – This Article considers whether the Constitution permits the permanent disarmament of individuals once deemed dangerous—particularly in cases involving domestic violence. In United States v. Rahimi, the Supreme Court reaffirmed that the Second Amendment protects the right of the people to keep and bear arms, subject only to regulation consistent with historical tradition. That tradition, as examined under New York State Rifle & Pistol Association v. Bruen, does not support lifetime bans absent an ongoing threat. []
By Haley Proctor – This Article examines the Supreme Court’s rejection of deferential twostep tests in New York State Rifle & Pistol Ass’n v. Bruen and Loper Bright Enterprises v. Raimondo. Prior to these decisions, Second Amendment and administrative law doctrines limited courts’ interpretive role at Step One in order to create space for regulatory judgments to which courts would defer at Step Two. Bruen and Loper Bright rejected this approach, reclaiming courts’ authority to ascertain legal norms and (less emphatically) to apply them to concrete disputes without deferring to regulators. []
By Andrew Willinger and Eric Ruben – Legal scholarship is overly abstract and theoretical, making it unhelpful to judges and lawyers. That, at least, is the classic critique from the bench. When it comes to the Second Amendment, however, a different pattern has emerged: judges consistently cite law review articles and look to the academy for guidance. Most recently, in United States v. Rahimi, some Justices went further, implicitly inviting more scholarly work to help the Court answer open questions raised by its novel methodological approach to the Second Amendment. This Article explores this aberrant trend. []
By Bonnie Carlson – In the summer of 2024, the Supreme Court considered United States v. Rahimi. Scholars and lawyers watched with bated breath to see how the court would interpret and apply the foundation-shifting Second Amendment test it established in New York State Rifle & Pistol Ass’n v. Bruen two years earlier. Ultimately, the Court upheld the federal law which temporarily bans some protection order respondents from possessing firearms. But the Court provided little in the way of additional guidance that lower courts desperately needed as evidenced by the disparate outcomes on gun cases nationwide following Bruen. Rather, the Court opted for a narrow approach, failing to even rule on the entirety of the statute at issue in Rahimi. []
By Nelson Lund – “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” New York State Rifle & Pistol Association v. Bruen (2022), set out a bold new standard of review for Second Amendment cases. The Court rightly repudiated the intermediate-scrutiny approach adopted by the circuit courts after District of Columbia v. Heller (2008). Bruen purported to require that any gun regulation falling within the plain text of the Amendment be upheld only if the government can demonstrate that the regulation is consistent with America’s historical tradition of firearm regulation. United States v. Rahimi (2024) confirmed what was already clear in Bruen: that a majority of the Justices are not prepared to take this seemingly rigorous historical test seriously. []
By Jacob D. Charles – The Supreme Court’s Second Amendment is beginning to take more concrete shape. In United States v. Rahimi, the Court rejected a challenge to the federal prohibition on gun possession by those subject to certain kinds of restraining orders. In that case, the Court’s analysis hinged in part on the difficulty of successfully waging facial constitutional challenges. It confirmed that the teaching of United States v. Salerno—that a statute is only facially unconstitutional if it has no valid applications—applies fully to the Second Amendment. Although it relied on this procedural lesson from Salerno, the justices overlooked Salerno’s substantive teaching: that contemporary and compelling interests in protecting public safety are not out of bounds in constitutional litigation, but instead are central to how courts should evaluate constitutional claims. This Article fleshes out these twin lessons from Salerno and urges the Court’s consistency in how it thinks about adjudicating individual rights. []