COHEN: Constitutional experts who follow the courts always seem to have an eye on three or four cases that are beginning to wend their way through state court systems or the federal system. What three or four Second Amendment cases are you watching as they begin their journeys to the higher courts? Are we likely to see a challenge to these new open carry laws that so many states have adopted over the past few years? Are there other cases you see out there that could give this Court the opportunity to expand gun rights and limit gun regulation? What should we be watching for?
MILLER: There’s a host of unsettled questions that I’m keeping my eye on. The lower federal courts right now are wrestling with the issue of what counts as an “arm” for purposes of the Second Amendment: Does it include large capacity magazines? Does it include AR-15s and other rifles modeled on military weapons? In Michigan, the state supreme court is set to decide whether the University of Michigan and other state universities can keep firearms off their campuses or whether that violates federal or state constitutional law. Then there’s the flood of litigation that will follow the Bruen case. I guarantee that gun rights advocates have already got plaintiffs engaged and complaints drafted and that there will be multiple lawsuits filed as soon as the Court hands down Bruen.
But what I’m really focused on is the sleeper issue in Bruen that will determine just how radical a change we’re in for. Right now, the lower courts are using a two-step framework for deciding Second Amendment cases. The first step is a historical approach; the second step allows the government to justify its regulation through social science data or other kinds of empirical tools. But one issue in Bruen is whether that second step is permissible or whether all Second Amendment questions may be answered only by reference to what is permitted by “text, history, and tradition.”
If the Court adopts a “text, history, and tradition”-only approach to Second Amendment questions, then suddenly everything we thought we knew about gun regulation
— that you can keep those convicted of domestic violence from possessing firearms; that you can keep loaded guns out of the cabins of commercial airliners
— all that is up for grabs.
Disclosure: Miller was among a group of attorneys who filed a friend-of-the-court brief on behalf of neither party in the Bruen case, urging the Supreme Court not to apply a text, history, and tradition-only approach. He also filed a friend-of-the-court brief in the pending Michigan Supreme Court case.
This interview has been edited for length and clarity.
This discussion is one of several in a Brennan Center series on the Bill of Rights. The interview with Orin Kerr about the Fourth Amendment is here, the interview with David Carroll about the Sixth Amendment is here, and the interview with Carol Steiker on the Eighth Amendment is here.
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