Second Amendment: Incompatible Methodologies and the Bruen and Heller Opinions' Underlying Misalignment

Authors

Henry H. Robinson

Abstract

In its 2022 Bruen opinion, the Supreme Court characterized the Heller opinion as having applied a “methodological approach” for interpretation of the Second Amendment. However, Bruen’s description and summary partially omitted, and was materially misaligned with, Heller’s actual reasoning. In Heller’s first step of constitutional interpretation, which addressed the first clause of the sentence comprising the Second Amendment, the opinion had selectively not applied the methodological approach described in Bruen; Heller’s first step had applied a different, incompatible methodological approach. Bruen’s description was aligned only with the second step of Heller’s constitutional reasoning, which had addressed the sentence’s second clause. Heller’s inconsistent, selective application of incompatible methodological approaches had altered the step one outcome and the subsequent step two reasoning. If Heller’s step one reasoning had applied the methodological approach described in Bruen, then that would have resulted in an opposite step one interpretation that in turn would have required different step two reasoning. This Article recommends a reasonable change that the Supreme Court should make to correct the current material misalignment between Bruen’s characterization of Heller’s reasoning and Heller’s actual reasoning and to eliminate Heller’s practice of impacting an outcome through selective, inconsistent use of incompatible methodological approaches when interpreting a constitutional sentence.

Recommended Citation

Robinson, Henry H. (2024) "Second Amendment: Incompatible Methodologies and the Bruen and Heller Opinions' Underlying Misalignment," Touro Law Review: Vol. 39: No. 4, Article 6.
Available at: https://digitalcommons.tourolaw.edu/lawreview/vol39/iss4/6