Jordan Al-Rawi (USC Gould School of Law) and Hutchinson Fann (J.D. Stanford Law School) have posted Reading Laws, Not Minds: The “Why” Inquiry After Bruen (Wash. U. L. Rev. Online Vol. 104 (forthcoming 2026)) on SSRN. Here is the abstract:
This Essay identifies a tension at the center of the Supreme Court’s post-Bruen Second Amendment doctrine. In other areas of the law, the Court rejects legislative history and subjective legislative intent, insisting that judges “read words, not minds.” But under Bruen’s second step, courts must ask “why” historical firearm regulations burdened the right to keep and bear arms. That inquiry often requires courts to infer the purposes of old laws, in an inquiry resembling the one the Court has rejected in other contexts. Given the Court’s concern with discerning legislative purpose in other arenas, we argue that it would be more consistent for courts to ask, at Bruen’s second step, what an ordinary person would have understood a historical law’s expressive message to be. This approach also answers the unresolved question regarding the “level of generality” at which courts should consider laws: Courts should ascertain the law’s expressive message at the level of generality at which an ordinary person would understand the law, which, we suggest, would often be at a high level of generality.
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