Manufacturing Outliers

Last term, the Supreme Court issued its first major Second Amendment decision in more than a decade,New York State Rifle and Pistol Association, Inc. v. Bruen.1 The case concerned a challenge to New York’s century-old “may-issue” regulation, which required applicants to show“proper cause” to receive a license to carry a concealed hand-gun in public. Petitioners described New York’s may-issue law as an outlier compared to forty-three other states with more relaxed“shall-issue”or permitless carry laws. At oral argument, Paul Clement, representing the petitioners, framed the case as a simple request:“[W]e’d like what they’re having.2” In a 6-3 majority opinion striking down New York’s law, Justice Clarence Thomas embraced petitioners’ characterization of the regulation as a contemporary outlier—and went further, casting it as a historical outlier as well. New York and supporting amici had amassed a substantial record of Anglo-American regulations from the medieval period to the early twentieth century to show New York’s law was part of a deep and long tradition of public carry regulation. One by one, the majority characterized each of these historical regulations as outliers. Some were too new; some were too old. Some were outliers because they were passed by territorial governments; some were outliers because they were passed by Reconstruction governments.Some were outliers because they weren’t adequately enforced; some because they weren’t enforced criminally; some were outliers because they governed a population too small, or too regional. None of these regulations, according to the majority, were probative of a long-standing historical tradition of regulating public carry into which the New York law fit. Bruen’s description of New York’s law as a contemporary and historical outlier raises fundamental questions about how the Justices define that term and the jurisprudential significance of that characterization. After all, there was nothing atypical about New York’s licensing law even thirty years ago, when most states had may-issue permitting, or prohibited concealed carry altogether. Instead, the law became a minority position because of an aggressive and successful campaign to change state law and public norms regarding public carry,and to change the perception of American history pertaining to that practice.3 Further, to suggest that New York’s permitting law is an outlier compared to a longstanding tradition of public carry regulation depends entirely on what counts as constitutive of that tradition. Of course, enforcing constitutional rights against outlier jurisdictions is not unusual. In contexts as varied as school segregation, contraception, the death penalty, and LGBTQ+ equality, the Justices have effectively nationalized a single standard as constitutional law when state laws and norms come to reflect a putative consensus, curbing jurisdictions that appear to break out in an atypical or retrogressive fashion.4 Scholars across the ideological spectrum, including Justin Driver,5 Keith Whittington,6 Michael Klarman,7 Cass Sunstein,8 Brannon Denning, and Glenn Reynolds,9 have all written on the tendency of the Court to use constitutional rights to prune outlier regulations. The Court’s invocation of outliers in Bruen warrants renewed attention to the topic for several reasons. First, Bruen highlights the current Court’s inclination to cast its work in exclusively investigative, empirical terms—as a matter of finding something, rather than fashioning it. This maneuver masks assumptions that are essential to the decision and allows the Court to characterize its holding as the dispassionate evaluation of objective facts, uncontaminated by normative choice. Second, given the present majority’s methodological tendencies, overt or covert conceptions of“outliers”are likely to appear in other constitutional domains. Many forms of originalism treat history as a matter of fact which judges can discover.10 This historical-empiricism is frequently touted to distinguish originalist jurisprudence from other approaches that are purportedly more judge-empowering. As Justice Antonin Scalia put it,“[t]exts and traditions are facts to study, not convictions to demonstrate about.”11 “Outlier”arguments are exemplary of this framing, and of its weaknesses.Bruen reveals that such arguments are replete with discretion, whether in selecting the relevant jurisdictions, grouping social phenomena (including law), setting a temporal duration, or elevating or minimizing a set of historical data points.Bruen demonstrates the Court’s tendency to curate a historical record and then to treat it as an objective basis for decision. Part I of this Article analyzes Bruen with particular focus on how the majority describes contemporary or historical regulations as“outliers.”The majority asserts that its test, which supposedly considers only text, history and tradition, is more “administrable” than the tiers-of-scrutiny test it replaced.12 But Bruen both engages in and encourages forms of judicial intuitionism and discretion that, if left unguided, are likely to disrupt Second Amendment law significantly. Sections II.A and B then identify and elaborate two principles—neither of them evident in Bruen—that might help bring more discipline to outlier arguments. Thefirst is transparency: Unlike the Bruen majority, courts should be clear about their assumptions andhow they shape the baselines against which purported outliers willbe measured. The second is rigor: Although law is not statistics andmay not lend itself to the same kinds of coding and robustness checksone sees in other disciplines,13 characterizing something as an out-lier, as Bruen does, makes an empirical claim that must be subject tosome kind of verification.14 We do not advance a trans-substantivelegal rule by which one can identify outliers, but we are confident that Bruen’s approach is plainly inadequate, and that, at the very least, some general guiding principles are warranted if outlier anal-ysis is to be anything beyond a rhetorical device. Section II.C briefly explains why an outlier analysis modeled on Bruen poses a threat tohistory and tradition as a modality of constitutional argument. In Part III we conclude by recognizing that our critique of Bruen’s outlier argument is not confined to Second Amendment adjudication but is applicable to other areas of constitutional doctrin