New York State Rifle & Pistol Association v. Bruen announced a novel constitutional test for gun regulation. This test requires gun regulation to be “consistent with this Nation’s historical tradition of firearm regulation.” This Comment provides the first scholarly sketch of historical pretrial firearms regulations. Based on this history, I argue that forbidding non-dangerous individuals awaiting trial from possessing a firearm violates the Second Amendment under Bruen. I also reject attempts to justify gun regulation by classifying defendants as categorically unvirtuous or dangerous, by appealing to the “seriousness” of a crime or by analogizing pretrial release conditions to historical surety laws. Moreover, I draw a big-picture conclusion about the Court’s historical tradition analysis. Under Bruen, courts need to fabricate a suitably described historical tradition by which to compare historical and modern firearm regulations. In that respect, despite Bruen’s promise to reign in judicial discretion, its historical-tradition analysis ultimately increases judicial discretion by allowing courts to set the relevant description by which to compare historical and modern gun regulations.
Volume 172 2024 Comment Constitutional Law;