If Roe Must Go. . . So Must Bruen

Forthcoming in Constititional Commentary

Rebecca L. Brown, University of Southern California
Lee Epstein, Washington University in St. Louis
Mitu Gulati, University of Virginia

Abstract
The Supreme Court has explicitly linked the concept of stare decisis to the protection of judicial legitimacy. In Dobbs, Justice Alito's opinion set forth five factors that called into question the legitimacy of Roe v. Wade, and found that they required an abandonment of the 50-year-old privacy right, for the sake of the rule of law. The very next day, however, in Bruen, the same Court enhanced gun rights by articulating a new methodology for evaluating the validity of gun regulations, relying on a search for centuries-old historical analogues of present-day gun restrictions. We now have data by which to examine how Bruen's new test has fared in the lower courts, through the lens of the Dobbs factors. Applying those criteria in light of our empirical findings, we conclude that Bruen poses a threat to the stability, objectivity and determinacy necessary to the rule of law: If Roe had to go, so must Bruen.

Click here for the paper (on ssrn). Article will be posted soon.

Keywords: keywords: Bruen, Heller, Second Amendment, guns, stare decisis, precedent, Dobbs, historical analogues, originalism, intermediate scrutiny, means-ends tests