Leo Bernabei (Fordham University School of Law) has posted Bruen as Heller: Text, History, and Tradition in the Lower Courts (92 Fordham Law Review Online, Forthcoming) on SSRN. Here is the abstract:
The Constitution and conventional wisdom suggest that lower courts must follow the most persuasive interpretations of Supreme Court precedent. But that does not always happen. Scholars recognize judicial underenforcement of Supreme Court precedent in a number of fields. This Essay adds to this scholarship by looking at lower court applications of New York State Rifle & Pistol Ass’n v. Bruen, in which the Supreme Court held that modern firearm laws must be consistent with the nation’s historical tradition of firearm regulation. The lower courts have taken widely varying approaches to analyzing gun laws under this standard. On one end, a small handful of courts has required near historical twins to uphold a challenged regulation. By contrast, many courts feel comfortable upholding modern gun laws based on historical enactments that seem only remotely analogous. Finally, some courts have avoided a history inquiry in its entirety by fashioning a “Bruen Step Zero” or relying on pre-Bruen circuit precedent that they find remains binding.
One impetus for Bruen was over a decade of judicial underenforcement of the Second Amendment following District of Columbia v. Heller. Whether Bruen will experience the same fate remains to be seen. Accordingly, this Essay suggests that the Supreme Court clarify the level of generality that Bruen requires to ensure that lower courts are properly enforcing Second Amendment claims.