Haley Proctor (University of Notre Dame – Notre Dame Law School) has posted “One Step Too Many”: Deference in Bruen, Loper Bright, and Rahimi on SSRN. Here is the abstract:
This Article examines the Supreme Court’s rejection of deferential twostep tests in New York State Rifle & Pistol Ass’n v. Bruen and Loper Bright Enterprises v. Raimondo. Prior to these decisions, Second Amendment and administrative law doctrines limited courts’ interpretive role at Step One in order to create space for regulatory judgments to which courts would defer at Step Two. Bruen and Loper Bright rejected this approach, reclaiming courts’ authority to ascertain legal norms and (less emphatically) to apply them to concrete disputes without deferring to regulators. Although it was decided the same term as Loper Bright, many see United States v. Rahimi as a retreat from Bruen. Scholars describe the conflict between Bruen and Rahimi in terms of “levels of generality,” a perennially intractable concept. This Article reframes the levels-of-generality problem as a deference problem. Focusing on which forms of deference Bruen rejects—and which it embraces—shows the decisions to be in greater alignment than at first appears. It also suggests that the Court is not shying away from reclaiming the authority it claimed in Bruen and Loper Bright as the traditional province of the judiciary.
Very interesting and recommended.