The dissent continued: Although I hope—fervently—that future courts will be able to identify historical analogues supporting the validity of regulations that address new technologies, I fear that it will often prove difficult to identify analogous technological and social problems from Medieval England, the founding era, or the time period in which the Fourteenth Amendment was […]

The dissent continued: How can we expect laws and cases that are over a century old to dictate the legality of regulations targeting “ghost guns” constructed with the aid of a three-dimensional printer? See, e.g., White House Briefing Room, FACT SHEET: The Biden Administration Cracks Down on Ghost Guns, Ensures That ATF Has the Leadership […]

Justice Breyer continued: Indeed, the Court offers many and varied reasons to reject potential representative analogues, but very few reasons to accept them. At best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd. At worst, they create a one-way ratchet […]

Second, the Court’s opinion today compounds these problems, for it gives the lower courts precious little guidance regarding how to resolve modern constitutional questions based almost solely on history. See, e.g., ante, at 1 (BARRETT, J., concurring) (“highlighting two methodological points that the Court does not resolve”). The Court declines to “provide an exhaustive survey […]

The dissent continued: I repeat that I do not cite these arguments in order to relitigate Heller. I wish only to illustrate the difficulties that may befall lawyers and judges when they attempt to rely solely on history to interpret the Constitution. In Heller, we attempted to determine the scope of the Second Amendment right […]

Justice Breyer continued: The Court, not an expert in history, had misread Blackstone and other sources explaining the English Bill of Rights. And that was not the Heller Court’s only questionable judgment. The majority rejected Justice Stevens’ argument that the Second Amendment’s use of the words “bear Arms” drew on an idiomatic meaning that, at […]

The dissent continued: Consider Heller itself. That case, fraught with difficult historical questions, illustrates the practical problems with expecting courts to decide important constitutional questions based solely on history. The majority in Heller undertook 40 pages of textual and historical analysis and concluded that the Second Amendment’s protection of the right to “keep and bear […]

Justice Breyer continued: The Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical. It imposes a task on the lower courts that judges cannot easily accomplish. Judges understand well how to weigh a law’s objectives against the methods used to achieve those objectives (its “means”). Judges are far less accustomed to […]

The dissent continued: And the degree of scrutiny we apply often depends on the type of speech burdened and the severity of the burden. See, e.g., Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. 721, 734 (2011) (applying strict scrutiny to laws that burden political speech); Ward v. Rock Against Racism, […]

Justice Breyer continued: The majority rejected my dissent not because I proposed using means-end scrutiny, but because, in its view, I had done the opposite. In its own words, the majority faulted my dissent for proposing “a freestanding ‘interest-balancing’ approach” that accorded with “none of the traditionally expressed levels [of scrutiny] (strict scrutiny, intermediate scrutiny, […]