The Oklahoma Bar Journal March 2023

voters.” 30 “[T]he enlightened patri ots who framed our constitution, and the people who adopted it,” thus “must be understood to have employed words in their natural sense, and to have intended what they have said.” 31 The Second Amendment con sists of three elements, guarantee ing the right 1) “of the people,” 2) “to keep and bear” and 3) “arms.” 32 These terms have well-established meanings. “The people . ” “The first salient feature of the [Second Amendment’s] operative clause is that it codifies a ‘right of the people.’” 33 “The unamended Constitution and the Bill of Rights use the phrase ‘right of the people’ two other times”: once “in the First Amendment’s Assembly and-Petition Clause” and again “in the Fourth Amendment’s Search and-Seizure Clause.” 34 The court has interpreted the term “the people” as having a consistent meaning across all three provisions, “refer[ring] to a class of persons who are part of the national community or who have otherwise developed sufficient connections with this country to be considered part of that community.” 35 This broad interpretation reflects the plain meaning of the word the “peo ple” at the time the Bill of Rights was adopted, defined as “ every person” or “the whole Body of Persons” compris ing a community or nation. 36 “Keep and bear.” The Second Amendment protects the right to “keep and bear” arms. The word “keep” means “[t]o have in cus tody” or “retain in one’s power of possession.” 37 The word “bear” means “to ‘carry.’” 38 Both verbs, the court has held, protect the “right to possess firearms” 39 – conduct often criminalized for certain individuals under modern firearm regulations. 40 “Arms.” Finally, the term “arms” refers to “[w]eapons of offense, or armour of defense.” 41 The court has construed the term as “extend[ing] …

to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” 42 and has specifically held that the term protects the right to possess “handguns.” 43 Bruen Step Two: Is the Challenged Regulation Consistent With the Nation’s Historical Tradition of Firearm Regulation? If the Second Amendment’s plain text covers an individual’s conduct, “the Constitution pre sumptively protects that conduct,” thus rendering the regulation presumptively unconstitutional. If the first step is met, the Bruen analysis turns to step two, where the burden falls on the government to “justify its regulation by demon strating that it is consistent with the Nation’s historical tradition of firearm regulation.” 44 The Bruen analysis at step two involves an “analogical inquiry,” requiring “the government [to] identify a well- established and representative his torical analogue ” for the challenged regulation. 45 Bruen ’s discussion and application of this requirement yields several important lessons. Four stand out in particular. Burden . First, the burden at step two rests entirely with the government. 46 Courts “are not obliged to sift the historical mate rials for evidence to sustain the [challenged] statute” 47 but, consis tent with ordinary “principle[s] of party presentation,” may “decide a case based on the historical record compiled by the parties.” 48 If that record yields “uncertainties” or is open to “multiple plausible inter pretations,” courts should rely on Bruen ’s “default rules” – the presumption of unconstitutionality at step one and the government’s burden at step two – “to resolve [those] uncertainties” in favor of the view “more consistent with the Second Amendment’s command.” 49

Similarity. Second, in identi fying a relevant “historical ana logue,” not every past practice that “remotely resembles” the challenged regulation will suffice. 50 Rather, to carry its burden, the government must identify a historical regulation that is “relevantly similar” to the one in question, both in terms of “how and why the regulations burden [one’s] right to armed self-defense.” 51 This does not require that the regulations be identical but that they impose “comparable burdens” and be “comparably justified.” 52 In some cases, this “inquiry will be fairly straightforward.” 53 For example, “When a challenged reg ulation addresses a general societal problem that has persisted since the 18th century, the lack of a dis tinctly similar historical regulation addressing the problem is relevant evidence that the challenged regula tion is inconsistent with the Second Amendment.” 54 “Likewise, if earlier generations addressed the societal problem, but did so through materi ally different means, that also could be evidence that a modern regula tion is unconstitutional.” 55 Thus, the “means” by which a regulation is enforced is a crucial factor when comparing “how” two regulations “burden [one’s] right to armed self-defense.” 56 Historical firearm regulations enforced via a “small fine,” “bond,” “forfeiture” or other nonpunitive measures are poor analogues for modern fire arm regulations carrying “signifi cant criminal penalties.” 57 This same reasoning applies when considering a regulation’s scope. Historical practices impos ing conditions or restrictions on one’s right to keep and bear arms provide no precedent for a “flat ban” on that right. 58 Prevalence. Third, the gov ernment’s burden at step two of the Bruen analysis does not stop at identifying a relevant historical

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THE OKLAHOMA BAR JOURNAL

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