Guns, Analogies, and Constitutional Interpretation Across Centuries
In New York State Rifle & Pistol Association v. Bruen, Justice Thomas’s majority opinion announced that the key to applying originalist methodology across a vast temporal gap involved the search not for a “historical twin,” but a historical “analogue.” And in defending analogical reasoning as the appropriate approach to implementing originalism, the Court described analogical reasoning in law as “commonplace.” But however commonplace it may be, complications exist that the Bruen Court neglected to acknowledge. This Article, prepared for the Notre Dame/Duke symposium on Bruen’s originalist and analogical methodologies, explores the complications that the Bruen majority ignored, including the role of the background and experiences of the analogizer in seeing and using analogies and the way in which successful analogies are based on structures and relationships and not merely on surface features and surface similarities.