Second Amendment Roundup: Bruen Was Right
J. Joel Alicea, “Bruen Was Right,” 174 U. Pa. L. Rev. (forthcoming 2025), sets forth a comprehensive defense of the text-history approach and rejection of means-scrutiny set forth in Justice Clarance Thomas’ opinion in Bruen. A professor at the Columbus School of Law, Alicea is the director of the Center for the Constitution and the Catholic Intellectual Tradition.
Some scholars argue that Bruen was a mistake. An exception Alicea cites is William Baude & Robert Leider, “The General-Law Right to Bear Arms,” 99 Notre Dame L. Rev. 1465 (2024). My own humble defense of Bruen is set forth in “Text and History, Means-Ends Scrutiny, and the Second Amendment,” 24 Fed. Soc. Rev. 54 (2023). Alicea’s article deserves a deep read about which I can only skim the surface here.
As Alicea explains, the larger significance of Bruen “is in its rejection of tests like strict or intermediate scrutiny that have loomed large in rights jurisprudence since the 1960s.  In their place, Bruen substituted a text-and-history-based test for evaluating the constitutionality of arms regulations that, if successful in the Second Amendment domain, holds out the prospect of displacing the tiers of scrutiny and other judicial balancing tests elsewhere in constitutional law.” But if this “most thoroughgoing attempt by the Court to do originalism in the area of constitutional rights” fails, “it calls into question originalism’s capacity to transition from a critical posture to a governing one, at least in the rights space.”
Before outlining the article, I’ll mention two cases citing Alicea about which readers may already be familiar. In NRA v. Bondi (11th Cir. 2025) (en banc), Chief Judge William Pryor sought to justify Florida’s law subjecting persons aged 18 to 20 to imprisonment for purchase of a firearm based on this supposed analogue: “Founding-era law precluded individuals under the age of 21 from purchasing arms because they lacked cash and the capacity to contract.”
But Alicea added to the above quote: “That being said, … I have not come across evidence of a principle that was generally held to be part of the Second Amendment right but that failed to make its way into some form of positive law.” In fact, neither the common law nor Founding-era statutory law made it a crime for a minor to buy a firearm, and indeed the Militia Act of 1792 required every male citizen 18 and over to “provide himself with a good musket or firelock.” By relying on civil laws involving the capacity to contract, Chief Judge Pryor “view[ed] a tradition at too high a level of generality,” as Alicea would say. Bruen’s Footnote 11 cautions against this type of reasoning when it said “[t]o the extent there are multiple plausible interpretations of [the scope of our Second Amendment rights], we will favor the one that is more consistent with the Second Amendment’s command.”
Alicea was more appropriately cited by Judge Ryan Nelson, dissenting in Duncan v. Bonta (9th Cir. 2025). As I explained in a post, the majority upheld California’s ban on possession of a magazine holding over ten round
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