J. Joel Alicea, "Bruen Was Right," 174 U. Pa. L. Rev. (forthcoming 2025), sets forth a comprehensive defense of the text-history approach and rejection of means-scrutiny set forth in Justice Clarance Thomas' opinion in Bruen. A professor at the Columbus School of Law, Alicea is the director of the Center for the Constitution and the Catholic Intellectual Tradition.
Some scholars argue that Bruen was a mistake. An exception Alicea cites is William Baude & Robert Leider, "The General-Law Right to Bear Arms," 99 Notre Dame L. Rev. 1465 (2024). My own humble defense of Bruen is set forth in "Text and History, Means-Ends Scrutiny, and the Second Amendment," 24 Fed. Soc. Rev. 54 (2023). Alicea's article deserves a deep read about which I can only skim the surface here.
As Alicea explains, the larger significance of Bruen "is in its rejection of tests like strict or intermediate scrutiny that have loomed large in rights jurisprudence since the 1960s. In their place, Bruen substituted a text-and-history-based test for evaluating the constitutionality of arms regulations that, if successful in the Second Amendment domain, holds out the prospect of displacing the tiers of scrutiny and other judicial balancing tests elsewhere in constitutional law." But if this "most thoroughgoing attempt by the Court to do originalism in the area of constitutional rights" fails, "it calls into question originalism's capacity to transition from a critical posture to a governing one, at least in the rights space."
