NYSRPA v. Bruen: How Did We Get Here?

By Genni Bogdanowicz

Abstract

In the 2022 New York State Rifle & Pistol Administration v. Bruen United States Supreme Court decision, Justice Thomas established a new constitutional test that looks to history to adjudicate Second Amendment cases. Thomas is one of five current Supreme Court justices who is a member of the Federalist Society, a network for conservative lawyers, posing the question of how this organization influenced the decision in Bruen. This essay reviews the literature on judicial decision-making, the current courts, the conservative legal movement, the Federalist Society, and NYSRPA v. Bruen to begin answering this question.

Background

In the spring of 2022, the United States Supreme Court decided a landmark Second Amendment case, New York State Rifle & Pistol Administration v. Bruen, which struck down a New York law requiring that applicants for unrestricted concealed carry demonstrate a special need for self-defense. This case built off of two other landmark Second Amendment cases, D.C. v. Heller (2008), in which the Court decided that the right to bear arms was individual rather than collective, and McDonald v. Chicago (2010), which incorporated this right to the states. In Bruen, Justice Clarence Thomas, writing for the majority, established a new “text-and-history” test, requiring states to prove that their gun control laws are consistent with the nation’s historical tradition of firearms regulation. In practice, this means finding similar laws from either the 1780s, when the Constitution was ratified, or post-Reconstruction, when the 14th Amendment was ratified. This new test has broad implications for constitutional law as a whole, but especially for gun control regulation in the United States, making it important to understand how and why Justice Thomas developed this opinion.

Justice Thomas, along with almost all other members of the majority, is a member of the Federalist Society (FedSoc). The Federalist Society is a conservative legal organization that started as a debating society and is now a large network for conservative lawyers, with chapters at all major law schools and in all major cities. The FedSoc is connected by a shared belief in the separation of powers, federalism, and originalism. The Society does not officially take positions or involve itself in politics, but it encourages its members to do so. The FedSoc has rallied conservatives to influence the law, with the Supreme Court being one such avenue. FedSoc members have an instrumental role in picking federal jurists for Republican Presidents; they create intellectual capital that Judges can then use in their cases to justify their decisions, and they operate as lawyers and judges and file amicus curiae briefs in cases.

Literature Review

Given this background, this literature review seeks to understand how the Federalist Society influenced the development of the majority opinion in Bruen. This review first gives an overview of the scholarship on judicial decision-making. This essay then looks at the literature on the current court and Trump appointees, again focusing on decision-making. Next, it examines the scholarship on how jurists address past precedents and use history in their decisions, focusing on how this operates within Second Amendment decisions. Afterward, this review considers research on the influence of the Federalist Society (FedSoc) on the federal judiciary. It concludes by examining the limited research on NYSRPA v. Bruen and identifying a gap in the literature on how the FedSoc influenced the majority opinion.

A large body of scholarship attempts to explain how and why justices make their decisions. Goldman (1966) analyzes Courts of Appeals voting behavior from 1961-1964, finding that party affiliation had several statistically significant differences and that there was no impact of demographics. Segal (1984) similarly lends evidence to the stability of judicial decision-making. In contrast, more recent research finds that demographic characteristics, like sex, do have an impact on judging. Glynn & Sen (2015) find that having at least one daughter increases the likelihood of a judge ruling in a feminist direction in gender-related cases. In contrast, Boyd, Epstein, & Martin (2010) find that a judge’s sex only has a significant effect in Title VII sex discrimination suits. Scholars have also examined external factors, with Casillas, Enns, and Wohlfarth (2011) finding that public opinion has a significant short and long-term impact on Supreme Court decisions, but only for non-salient cases.

The literature also examines how judicial decision-making operates in the current federal courts, including among Trump appointees. Feldman (2017) finds that opinions on the Roberts Court share the most language with parties’ briefs but that opinions share more language with amicus briefs in salient cases. Hollis-Brusky & Parry (2021) predicted that Trump appointees would block progressive policies, rule on culture-war issues, and influence democratic processes in favor of Republican candidates “below the radar” to protect Court legitimacy. Furthermore, Manning, Carp, & Holmes (2020) find that Trump’s judicial appointees are more conservative than other Republican presidential appointees but are more liberal in criminal justice cases, possibly indicating the influence of the FedSoc’s libertarian leanings.

Researchers expand this discussion by looking at how Judges treat past precedents and how Judges use history as a precedent-breaking device. Spriggs & Hansford (2001) suggest that although Justices pursue policy preferences in overturning cases, legal norms have a stronger influence. Scholars suggest that overruling precedent may require specific rhetorical strategies, finding that justices often employ historical analysis or citations to historical documents as a justification for breaking stare decisis, motivated by a need to prove legitimacy (Kelly, 1965; Corley et al., 2005). Finkelman argues that this phenomenon appears in Heller and McDonald (Finkelman, 2015).

Additional research has analyzed the use of history in Heller and McDonald. Smith (2022) bolsters Finkelman’s argument, suggesting that although originalism is a valid method of interpretation, had Scalia truly analyzed the Amendment through an originalist lens, the United States v. Miller precedent would have stood. Liebell (2021) notes that Scalia’s form of originalism in Heller ignores critical social contexts like domestic violence. Finally, Põiklik (2016) finds that even though the majority and dissenting justices in Heller and McDonald present their arguments as grounded in law and objective interpretation, they were instead shaped by their values.

Researchers have looked at how the conservative legal movement has influenced jurisprudence and judicial decision-making. Wilson & Hollis-Brusky (2018) evaluate different strategies used by the movement, including establishing separate institutions, finding that the biggest strength of this strategy is the degree of control they have over students’ education. Paik, Southworth, & Heinz (2007) use network methods to investigate how lawyers within the movement are connected, finding a strong effect of FedSoc membership on the likelihood of intragroup contacts, suggesting that this organization helps organize the overall conservative coalition. Other scholars, like Teles (2008) and Southworth (2012), have also identified the FedSoc as a significant part of the overall conservative legal movement and argue that it has been instrumental in organizing lawyers on the right. Furthermore, Avery and McLaughlin (2013) explore FedSoc’s influence in the federal government, specifically the Department of Justice, which went so far as to provoke investigations into favoritism in hiring.

Scholars have investigated the relationship between the Federalist Society and the federal bench. Bird & McGee (2023b) find that the current probability of drawing a three-judge panel on the circuit courts with at least one FedSoc judge is 0.10. Bird & McGee (2023a) find that FedSoc affiliation increases the probability of confirmation by 20% after the nuclear option. Finally, Scherer and Miller (2009) find that FedSoc jurists on the U.S. Court of Appeals are more conservative than their right-wing colleagues, suggesting some level of influence on decision-making.

Further research focuses specifically on the influence of the FedSoc on federal jurisprudence. Hollis-Brusky (2013) adapts Haas’s (1992) epistemic network framework to analyze FedSoc's influence on Supreme Court cases, finding that FedSoc intellectual capital had the biggest influence when the doctrinal distance was the furthest, suggesting that Justices use Society materials to legitimate decisions with significant departures from previous precedent. Hollis-Brusky (2019) develops the political epistemic network (PEN) framework and uses it to analyze Heller and McDonald, demonstrating how the majority opinions in both cases–authored by FedSoc members–rely on FedSoc intellectual capital. In contrast, Salamone (2014) finds no significant influence of FedSoc lower court Judges’ opinions on FedSoc justices but does find a significant influence of W. Bush and Reagan nominees on FedSoc justices. Baum (2006) looks at the FedSoc as a judicial audience, arguing that Justice Thomas particularly engages with and responds to this audience. Although this research provides a strong basis suggesting FedSoc influence on Supreme Court decision-making, the studies examined earlier in this literature review suggest other explanations for judicial decision-making. This includes the possibility that decisions are more heavily influenced by Judges’ personal legal philosophies rather than external influence.

Lastly, some scholars have begun to examine Bruen. Bentata Gryting & Frassetto (2022), in anticipation of the decision, argue that the history and tradition of firearms regulation do not support a restrictive “metal-detector” reading of the sensitive places doctrine set out in Heller. Harawa (2022) conducts a content analysis of Bruen to argue that the majority opinion weaponizes race to expand Second Amendment rights while ignoring the implications for Black people in America today. Geisel (2023) evaluates the use of originalism in Bruen, arguing that step two of the “text-and-history” test is not Originalist because it focuses on historical meaning rather than original meaning. Scholars have also investigated the opinion’s impact. Sampson (2023) argues that the Court’s Second and Fifteenth Amendment jurisprudence is contradictory and further endangers minorities by enabling political violence and voter suppression. Gaffney et al. (2023) model the public health impacts of Bruen, projecting additional gun-related deaths and injuries. Little research has examined the role of the FedSoc in shaping the majority opinion in Bruen. In future research, the author intends to fill this gap by using both plagiarism detection–which will identify directly shared language–and Hollis-Brusky’s PEN framework to argue that, similar to Heller and McDonald, the FedSoc provided intellectual capital used by Thomas to legitimate his arguments in the majority opinion.

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