This guest post does not necessarily reflect the views of the Duke Center for Firearms Law.
In Association of New Jersey Rifle and Pistol Clubs v. New Jersey (ANJRPC), the Third Circuit became the first federal court of appeals in the nation to strike down an assault weapons or large-capacity magazine (LCM) ban under Bruen. The decision is noteworthy for many reasons, including because every other circuit that has considered such laws has upheld them, and because this decision came even after the Supreme Court granted certiorari on Cook County’s and Connecticut’s assault weapons bans. Another aspect of the decision worth examining is Judge Matey’s concurrence, which stands out for invoking Adrian Vermeule’s Common Good Constitutionalism and “classical authorities” such as the ancient Roman philosopher and statesman Cicero and Thomas Aquinas.
This is not the first time Judge Matey has taken this approach to the Second Amendment. He also applied it in a concurrence in Range v. Attorney General, another en banc Second Amendment decision from the Third Circuit. Judge Matey’s Range concurrence consulted various “classical authorities” before analyzing the history of firearms regulation. It deduced certain natural law principles from this “classical tradition,” and then interpreted history through the lens of those principles.
This approach grows out of “common good constitutionalism,” a movement that would jettison the purported neutrality of originalism in favor of interpreting the Constitution in accordance with specific moral commitments. While common good constitutionalism has made a splash in some corners, Judge Matey’s concurrences seem to be the first real foothold for the movement in judicial opinions.
In a recent essay published in the University of Chicago Law Review Online, I identify and analyze Judge Matey’s “classical” approach to the Second Amendment as exemplified in Range. I take a critical view of Judge Matey’s Range concurrence and its method but suggest that it is an instructive case study in the fracturing of conservative constitutional methods. In particular, I make three broad points. First, despite Judge Matey’s attempt to weave his classical approach into the methodology of Bruen and Rahimi, the method is a departure from—not a faithful application of—recent Supreme Court precedents. Most concisely, Bruen and Rahimi instruct courts to look to the history of American regulation and extrapolate principles from historical evidence. The Range concurrence, by contrast, divines normative principles first and then tries to fit historical evidence into that mold.
Second, the method has serious problems in practice. The Range concurrence takes a highly selective and unexplained approach to picking sources spanning over 1,000 years, raising the risk that it will construct an unrepresentative account of the tradition it consults. The concurrence also elides historical context when joining together these various sources, making unjustified assumptions of historical continuity. For example, it reads a modern right to bear arms into ancient sources discussing self-defense—as if Cicero’s thoughts on permissible homicide mapped directly onto the scope of our representative government’s regulatory power under our Constitution. And the concurrence makes important errors in reading historical sources. All of this calls into question whether this is a method well-suited for courts to resolve Second Amendment disputes.
Third, the method is strikingly underdeterminative. It produces only highly abstract principles that do not actually resolve close constitutional cases. For example, the Range concurrence concludes that “the natural right of self-preservation does not extend to bearing arms in a manner that undermines the common good.” That very broad principle does little, if anything, to resolve contested issues of Second Amendment litigation, as it could equally support opposite outcomes on issues from assault weapon prohibitions to the very law at issue in Range. And proceeding as if such principles actually do resolve these disputes risks leading to unconstrained decision by ipse dixit.
What does Judge Matey’s reprisal of his classical concurrence in ANJRPC add to the picture? The ANJRPC concurrence essentially agrees with the majority’s reasoning but seeks to supplement it with “classical rigor,” and to “return the understanding of the Second Amendment to the classical framework,” oriented toward “maintenance of the common good.” This new concurrence appears to suffer from the same problems I identify in my essay. It does not satisfactorily explain itself under existing precedent, it does not quell fears about courts’ ability to put the method into reliable practice, and it does not show that the invocation of natural law actually helps resolve close constitutional cases.
The third issue, in particular, stands out in ANJRPC. The concurrence agrees with the majority’s approach to the “common use” test, but—instead of looking back to Heller’s use of the phrase—attempts to ground it in first principles. The concurrence asserts that “[l]ogically there can be no custom supporting the wholesale ban of a common arm.” But this overlooks the possibility of a tradition of banning dangerous items harmful to public order and safety once they become all too common. Consider, for one example, Judge St. Eve’s detailed discussion of the regulation of popular Bowie knives in the Seventh Circuit’s recent Barnett decision. The concurrence does not adequately explain why this could not be a form of “regulation consistent with the common good.” And so one might wonder: How much are the invocations of natural law and classical authorities really advancing the legal-historical reasoning here? If the answer is not much, what other purposes are they serving?
Whether others will join Judge Matey’s classical fold remains to be seen. Judge Mascott joined his concurrence in ANJRPC, but she specified that she did so “principally because” she agreed with its conclusion that a remand was unnecessary. For now, Judge Matey’s approach to the Second Amendment remains a minority one. But it is worth keeping an eye on for what it can tell us about splintering constitutional methods under the banner of history and tradition. And Judge Matey’s intervention might also usefully serve to open up broader questions about how courts should adjudicate rights disputes in our democracy, and what we should want from an implementing doctrine or judicial decision rule.
*Erik Pugh Fredericksen is a constitutional law fellow at Everytown for Gun Safety. This blog post reflects only his personal views and not that of his employer.
