Justice Antonin Scalia’s conclusions in Heller that the Second Amendment protects a preexisting right to keep and bear arms, and that this right extends to modern handguns, are based on sound historical evidence and legal reasoning. Professor Lund’s criticisms of Heller’s historical reasoning are unpersuasive. Lund begins by taking aim at Bruen’s foundation: Heller’s holding that the Second Amendment’s text and history protect an individual right to keep and bear firearms. Nevertheless, Professor Lund devotes a major discussion to what he argues are “some serious difficulties that will arise in applying the new approach that Bruen adopts.” While any ground-breaking decision may entail perceived difficulties, I wish to take issue with some of his arguments. As Lund notes, “Bruen was an easy case, which the Court resolved correctly.” After all, the text of the Amendment prohibits infringement of “the right of the people” to “bear arms.” Moreover, “the Court was justified in repudiating the interpretive approach adopted by a consensus of the circuit courts after Heller.” That consensus was a two-part interest-balancing test, under which the circuit courts had largely balanced the fundamental right away.
Bruen held that New York’s restrictive handgun licensing scheme violated the Second Amendment. Professor Nelson Lund’s “Bruen’s Preliminary Preservation of the Second Amendment,” recently published in the Federalist Society Review, critiques the Supreme Court’s decision in New York State Rifle & Pistol Association v.
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