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So, by that metric, Burger is right. But assum­ing the Consti­tu­tion means what the Founders inten­ded or under­stood is a huge assump­tion. There’s a more flex­ible, evolving theory of the Consti­tu­tion — typic­ally endorsed by people on the left — that says the mean­ing of the Consti­tu­tion gradu­ally changes over time or is impacted by major public events or social move­ments. On that theory of consti­tu­tional inter­pret­a­tion, call­ing the personal right a “fraud” is a non-sequitur. This is the great irony of the Heller opin­ion — it’s a decision by an arch-origin­al­ist, celeb­rated by conser­vat­ives, that only makes sense if the Consti­tu­tion is a living docu­ment.

COHEN: We all are wait­ing for the Supreme Court’s ruling in New York State Rifle & Pistol Asso­ci­ation, Inc. v Bruen. Of course, I haven’t read every essay or analysis on the case or the oral argu­ment that took place on it last fall, but I have yet to come across a Second Amend­ment scholar or gun policy expert who says the Court’s conser­vat­ive major­ity will side with New York and against the interests of gun owners. What’s your sense of the scope of the decision we are most likely to see here? What’s your predic­tion?

MILLER: Other than feel­ing very confid­ent that the exist­ing New York State pistol licens­ing law will be struck down, I have very little sense of the scope of the decision we’re likely to see in the next month or two. The justices at oral argu­ment seemed genu­inely concerned that a broad ruling on public carry would embroil them in all kinds of minu­tiae about where guns can be prohib­ited — campuses, subway cars, Times Square on New Year’s Eve, etc. I cannot believe that they have much appet­ite for trans­form­ing every federal district court judge in the coun­try into a gun zoning czar. That said, there’s a conser­vat­ive super­ma­jor­ity on the Court that is clearly ready to flex its muscles on issues that conser­vat­ives have long cared about — from abor­tion restric­tions, to free exer­cise, to gun rights — so I can’t rule out a broad and broadly disrupt­ive ruling that would upend not only New York’s regu­la­tions but would call into ques­tion the consti­tu­tion­al­ity of nearly every gun regu­la­tion, in every state, at every level of govern­ment.

COHEN: You have writ­ten a great deal on the Second Amend­ment and how poli­cy­makers can and should approach the tension between gun rights and gun regu­la­tions. One article that caught my eye, posted last year, advoc­ated for an “equi­lib­rium adjust­ment” approach to Second Amend­ment law, a sort of slid­ing scale of reas­on­able­ness that would presum­ably protect some exist­ing gun laws while strik­ing down others. Sounds optim­istic to me, given what we know of the Court’s ideo­lo­gical makeup. Are you look­ing for anything in Bruen that would help you eval­u­ate whether the Court is recept­ive to this “equi­lib­ria” approach?

MILLER: The primary point I wanted to make in that article is that if the Court ends up lean­ing heav­ily or exclus­ively on text, history, and tradi­tion to decide Second Amend­ment cases, the process of reas­on­ing from analogy from those sources has to apply equally on both sides of the rights/regu­la­tion equa­tion. The Court has firmly rejec­ted argu­ments that only 18th-century weapons are protec­ted by the Second Amend­ment. But that argu­ment should apply to regu­la­tions too

— more than just those regu­la­tions that exis­ted in the 18th century are consti­tu­tional. So, if the Court holds that new kinds of weapons

— like 9-milli­meter pistols

— are “similar” enough to histor­ical weapons to count as an “arm” under the Second Amend­ment, the Court should say new kinds of regu­la­tions

— like prohib­it­ing guns on the subway

— are “similar” enough to histor­ical regu­la­tions to be consti­tu­tional.

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