By: Joshua Lassin
Volume IX – Issue I – Fall 2023
I. Introduction: Analogical Reasoning in the Law
Analogical reasoning based on abstract, objective factors is the best tool available to courts tasked with applying text written in 1791 to phenomena in 2023. The use of analogy strikes a careful balance between the societal imperative to usher the Constitution into the twenty-first century and the judicial duty to uphold its text, history, and tradition. On the one hand, courts cannot die on the hill of history and cite the mere absence of a 2023 practice in 1791 society as evidence of its unconstitutionality. If so, our Constitution would be reduced to an 18th century relic and condemned to a status of eternal mootness. The First Amendment would not protect against government censorship of online content, nor would the Commerce Clause empower Congress to resolve a dispute between states over the location of an interstate highway. On the other hand, judges cannot function as legislators and reduce the constitutionality of new phenomena to subjective notions of their societal value. If so, the original meaning of the Constitution would be distorted beyond recognition. The Fourth Amendment might cease to protect against the use of sophisticated law enforcement tactics to surveil inside the homes of citizens, while the Eighth Amendment might cease to protect against the use of inhumane technologies for capital punishment. Analogical reasoning provides a judicially appropriate inquiry that satisfies the need to apply old text to new phenomena and ensures judicial fidelity to original textual meaning.
In Section II, we review the Supreme Court’s ruling in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022). In Section III, we articulate the basic definitions and essential principles of analogical reasoning and showcase the value of adopting this interpretive methodology. Section IV will explore the roots of analogical reasoning in our jurisprudence, shedding light on an overlooked yet compelling tradition of legal interpretation at intermediate-to-high levels of abstraction. Lastly, Section V will offer some concluding remarks with an eye toward the post-Bruen future.
II. New York State Rifle & Pistol Association, Inc. v. Bruen
i. Facts and Procedural History
Under New York State’s firearm licensing regime, to obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” outside one’s home or place of business for self-defense, the burden is on the applicant to show that “proper cause” exists. [1] An applicant who fails to satisfy this burden is only eligible for a restricted license covering public carry for the limited purposes of hunting, target shooting, or employment. New York State Courts have interpreted “proper cause” as a “a special need for self-protection distinguishable from that of the general community.” [2] One avenue to satisfy this “special need” requirement is to provide evidence “of particular threats, attacks or other extraordinary danger to personal safety.” [3]
Petitioners Brandon Koch and Robert Nash each applied for unrestricted licenses to carry handguns in public for their self-defense. Licensing officers in New York State denied Koch and Nash’s applications, citing their failure to show “proper cause” under §400.00(2)(f). Koch and Nash sued the superintendent of the New York State Police and a New York Supreme Court justice, asserting that, in denying their applications for unrestricted licenses for public carry, respondents violated their rights under the Second and Fourteenth Amendments.
The District Court dismissed Koch and Nash’s complaint and the Court of Appeals affirmed. Petitioners appealed to the Supreme Court, which granted certiorari [4] to review the constitutionality of New York State’s firearm licensing restrictions.
ii. Ruling
In the aftermath of District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010), the Courts of Appeals established a two-step test when evaluating the constitutionality of firearm regulations under the Second Amendment. In the first step, the Government is tasked with defending its regulation by “establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood.” [5] If the Government convinces the court that the regulation is not encompassed by the original scope of protection afforded by the Second Amendment, then the regulation is presumed constitutional. However, if the historical evidence “at this step is ‘inconclusive or suggests that the regulated activity is not categorically unprotected,’ the court generally proceeds to step two.” [6] In the second step, the court analyzes “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.” [7] The Courts of Appeals have generally defined the core of the Second Amendment as the right to self-defense in the home. If the court concludes that the regulation burdens a core Second Amendment right, then strict scrutiny follows: the onus is on the Government to prove that the regulation is narrowly tailored to a compelling governmental interest. However, when a core Second Amendment right is not at stake, the Government need only satisfy the lesser burden of intermediate scrutiny, and prove that the regulation is substantially related to an important governmental interest.
Hence, the pre-Bruen test adopted by the Courts of Appeals was a balanced approach that combined adherence to text, history, and tradition (first step) with means-end scrutiny (second step). However, the Bruen Court was not persuaded. Insisting that means-end scrutiny clashed with Heller’s historical approach and was unsuited to Second Amendment analysis, Bruen discarded this second step. Electing to leave the first step intact, the Bruen Court articulated its standard for adjudicating Second Amendment claims in the following:
“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” [8]
How exactly will courts determine whether a particular regulation is “consistent with” our historical tradition of firearm regulation? According to Bruen, the answer is analogy.
“When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are ‘relevantly similar.’” [9]
The Bruen Court offered little instruction to courts tasked with charting down this analogical path. That said, Bruen did specify two metrics for determining whether two regulations are “relevantly similar”: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” [10]
This Article’s treatment of Bruen’s analogical test to evaluate the constitutionality of firearm regulations under the Second Amendment has, to this point, remained admittedly abstract. Paradoxically, in Section III, we will learn that abstraction is the key to applying Bruen’s standard.
III. Abstract Principles of Analogy
In his renowned treatise on analogical reasoning in the law, Cass R. Sunstein explains that, because “[e]verything is similar in infinite ways to everything else,” [11] analogizers need “some metric enabling the[m] … to assess which similarities are important and which are not.” [12] As Bruen recognized its own ineptitude to articulate readily applicable principles of relevant similarity with which to analogize modern and historic firearm regulations, this Article does not purport to know better than the Bruen Court, and thus will exercise the same level of restraint. That said, we will now provide some general guidelines for applying Bruen’s standard and map out the broad contours of reasoning by analogy within the context of the Second Amendment.
i. Levels of Abstraction
The mechanism that enables the operation of analogical reasoning is the extraction of principles with at least some level of abstraction. Consider Sunstein’s example of a Nazi march: At the lowest level of abstraction, “if we say that the state cannot ban a Nazi march, we might mean that the state cannot” [13] ban Nazis from publicly and peaceably expressing their Nazi views. At a higher level of abstraction, the principle might be that the state cannot ban peaceful anti-Semetic demonstrators from expressing their anti-Semetic views. At an even higher level of abstraction, perhaps the state cannot ban peaceful demonstrators from expressing their hateful views. Finally, at the highest level of abstraction, “the state cannot stop [any] political speech without showing that the speech poses a clear and immediate harm.” [14] At each successive stage, we enhanced the level of abstraction, first classifying the demonstrators as Nazis and their views as Nazi, next placing the demonstrators and their views into the broader category of anti-Semetism, then decoupling the demonstrators from any political or doctrinal categorization and merely classifying their speech as hateful, and finally extending hateful speech to the broader category of political speech.
According to Sunstein, analogical reasoning is best served by “principles that operate at a low or intermediate level of abstraction.” [15] This is true, for several reasons. First, constraining the level of abstraction ensures the independence of the extracted principles from the analogizer’s subjective notions and “general principles about the right or the good.” [16] For example, our exercise in abstraction did not “entail any high-level theory about the purposes of the free speech guarantee or about the relation between the citizen and the state.” [17] Second, working with principles operating at a low level of abstraction promotes coherent analogies with relevant points of similarity. The higher the level of abstraction, the fewer commonalities A and B share, and the harder time the analogizer has relating A and B without resorting to principles so broad that their relation is rendered meaningless. For example, if we were to analogize a dog and a cat at a high level of abstraction, we might extract the principle that dogs and cats can walk. But so can horses, penguins, giraffes, and many other otherwise unrelated animals. Because we analogized at a high level of abstraction, we extracted a principle so broad that the relation between cats and dogs was rendered meaningless, and we neglected the genuinely relevant point of similarity—that dogs and cats are common household pets. Restricting the level of abstraction is a check against this kind of fallacious analogical reasoning.
Despite Sunstein’s general guidance, for the purposes of analogizing modern and historical firearm regulations within the context of the Second Amendment, this Article argues for principles operating at an intermediate-to-high level of abstraction. Whereas Sunstein argues for principles at low or intermediate abstraction, note our use of the word “to.” This Article promotes adjusting or sliding levels of abstraction based on the alikeness of modern circumstances to their proposed historical analogs. The more alike a modern circumstance is to its proposed historical analog, the lower the level of abstraction; the more disalike a modern circumstance is to its proposed historical analog, the higher the level of abstraction.
This Article champions analogical reasoning based on principles operating at intermediate-to-high levels of abstraction for three reasons. First, this type of reasoning satisfies the need to apply old text to new phenomena and usher the Constitution into the twenty-first century, whereas too little abstraction invites what Joseph Blocher and Eric Ruben refer to as the “risk of anachronism.” [18] Second, the use of abstraction is a valuable tool to attenuate the effect of blinkered historical sensibilities that cling onto outdated laws. Third, this model provides a judicially appropriate inquiry rooted in the cardinal legal skill of analogical reasoning and spares lawyers from delving into intensive historical inquiries for which they lack the requisite expertise and resources.
ii. Roots in Bruen
This formulation of the degree of abstraction at which to analogize modern and historical firearm regulations is rooted in the text of Bruen. Recall that Bruen identified two metrics for determining whether two regulations are “relevantly similar”: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” [19] The application of these two metrics necessarily lends itself to intermediate-to-high levels of abstraction. For example, as Blocher and Ruben correctly observe,
“The Founding generation thought it constitutional to deny firearms to Native Americans, Black Americans, and those refusing to take loyalty oaths.385 At a low level of generality, then, there is a far stronger historical record supporting those restrictions than, say, a rule disarming domestic abusers.386 And yet it would be absurd to conclude that today the Second Amendment permits the government to disarm Black Americans and Native Americans but not domestic abusers.” [20]
To avoid this absurd outcome, consistent with Bruen’s command to assess how and why a historical firearm regulation burdened a law-abiding citizen’s right to armed self-defense, we might enhance the level of abstraction and ask ourselves why the Founding generation chose to disarm particular groups of citizens, as opposed to merely asking ourselves whom they disarmed. For example, it might be said that the Founding generation chose to disarm groups they believed to be dangerous, [21] lack moral rectitude, [22] and “not [be] law-abiding members of the political community.” [23] On these grounds, we extract the abstract principle that, whether or not a modern regulation prohibiting the access of firearms to domestic abusers comports with the Second Amendment, depends on whether or not domestic abusers fall into one of the three identified categories according to today’s standards. If they do, then the regulation is analogically justified under the Second Amendment. If they do not, then the regulation is insufficiently analogous to pass constitutional muster.
Recall our second instruction for adjusting the level of abstraction: “[T]he more disalike a modern circumstance is to its proposed historical analog, the higher the level of abstraction.” [24] With respect to the right to firearms, the modern treatment of racial minorities is considerably removed from the treatment of racial minorities at or around the time of the adoption of the Second Amendment. As Blocher and Ruben observed, early state governments generally deprived racial minorities of the right to firearms. Thus, our second instruction recommends principles operating at an intermediate-to-high level of abstraction. We now explain this recommendation in detail.
iii. Meanings vs. Applications
In his renowned treatise Reading Law, [25] Justice Scalia expounded upon the basic principles of textualism and provided fifty-seven canons of legal interpretation. Consider the sixth and seventh cannons, the Ordinary-Meaning Canon and the Fixed-Meaning Canon.
6. Ordinary-Meaning Cannon: “Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.” [26]
7. Fixed-Meaning Canon: “Words must be given the meaning they had when the text was adopted.” [27]
Justice Scalia’s use of the words “meanings” and “meaning” in the Ordinary-Meaning Canon and the Fixed-Meaning Canon is no accident. This deliberate word choice illustrates that textualism preaches fidelity to the meanings of words when they were written, not to examples of their application when they were written. Interpreting the First Amendment will clarify this important distinction.
The First Amendment, in relevant part, provides that, “Congress shall make no law … abridging the freedom of speech….” [28] What does “speech” mean? Under textualism, the word “speech” means “what [it] conveyed to reasonable people at the time [it] was written….” [29] For starters, the meaning of “speech” is not verbal debates, protest chants, or public addresses. These represent examples of the application of the meaning of “speech.” The meaning of speech is “the communication or expression of thoughts in spoken words.” [30] This meaning is no different from that during the Founding: “The power of articulate utterance, the faculty of expressing thoughts in words….” [31] In crafting the Bill of Rights, the Founders did not endeavor to list each and every example of speech they knew about and limit the protection of the First Amendment to whatever examples they produced. The Founders had forthsight. Recognizing the inevitable emergence in future generations of contemporaneously unknown phenomena, the Founders provided for the “freedom of speech” and enabled future generations to apply this stable meaning to novel phenomena. Thus, we owe our fidelity to the 1789 meaning of “speech,” and not to the examples of speech in 1789. We apply the 1789 meaning of “speech” to 2023 phenomena.
How is this distinction between the meanings of words and examples of their applications relevant to analogical reasoning? Because the higher the level of abstraction at which analogical principles operate, the closer the interpretation of the text approaches its original meaning. Conversely, the lower the level of abstraction at which analogical principles operate, the closer the interpretation of the text approaches the examples of its application.
With these principles in mind, we will reconsider the treatment of blacks, Native Americans, and domestic abusers under the Second Amendment. Recall that, had we selected a principle operating at a lower level of abstraction, we might have concluded that, merely because the Founding generation failed to disarm domestic abusers while disarming blacks and Native Americans, that “today the Second Amendment permits the government to disarm Black Americans and Native Americans but not domestic abusers.” [32] This interpretation of the “right of the people to keep and bear Arms” applies not the meaning of the word “people,” but rather the examples of its application at or around the time of the adoption of the Second Amendment, which did not include blacks or Native Americans but did include domestic abusers.
However, operating at a higher level of abstraction, we instead investigated why the Founding generation disarmed groups of citizens, identified three broad categories of justifications, and extracted the abstract principle that, whether or not a modern regulation prohibiting the access of firearms to domestic abusers comports with the Second Amendment, depends on whether or not domestic abusers fall into one of the three identified categories according to today’s standards. In doing so, our interpretation of the “right of the people to keep and bear Arms” applies the meaning of the word “people,” and not the examples of its historical application. As we asserted, one plausible meaning of “people” under the Second Amendment is persons who are not believed to be dangerous, not believed to lack moral rectitude, and believed to be law-abiding members of the political community. These three categories reflect a plausible, stable meaning of the word “people,” transferable across generations, as opposed to the specific examples of that word’s historical application.
iv. Curing Blinkered and Abhorrent Historical Sensibilities
We have thus far established four characteristics of analogical reasoning:
1) The more alike a modern circumstance is to its proposed historical analog, the lower the level of abstraction.
2) The more disalike a modern circumstance is to its proposed historical analog, the higher the level of abstraction.
3) The lower the level of abstraction at which analogical principles operate, the closer the interpretation of the text approaches the examples of its application.
4) The higher the level of abstraction at which analogical principles operate, the closer the interpretation of the text approaches its original meaning.
Taken together, the value of principles operating at intermediate-to-high levels of abstraction lies in their attenuation of the effect of blinkered and abhorrent historical sensibilities that cling onto outdated text. We know this because of the indisputable historical fact that the original textual meaning of the Constitution (i.e., the Constitution as written) tends to favor justice and fairness, while the early application of the Constitution (i.e., the Constitution as applied until the second half of the 20th century) tended to favor injustice and unfairness. Thus, consistent with 3) and 4), because interpreting words based on principles operating at higher levels of abstraction promotes their original meaning, whereas interpreting words based on principles operating at lower levels of abstraction promotes specific examples of their historical application, it follows that higher levels of abstraction will unleash the sense of justice and fairness inherent in the Constitution, while lower levels of abstraction will enable the injustice and unfairness of its early application. For this reason, operating at intermediate-to-high levels of abstraction is a valuable interpretive tool to attenuate the effect of blinkered historical sensibilities that cling onto outdated text.
v. Ushering the Constitution into the Twenty-First Century
Aside from attenuating the lingering effects of racist and outdated sensibilities, this Article endorses principles operating at intermediate-to-high levels of abstraction for a second reason: they facilitate the application of old text to new phenomena. This task is particularly precarious within the context of the Second Amendment, because of the radical and sweeping technological evolution that our society has endured in the 232 years since the adoption of the Second Amendment. This centuries-long transformation entails the existence of “firearms or places that did not exist at the Founding,” [33] from AK-15 semi-automatic rifles to subways and airplanes, and the “recognition of problems … the Framers failed to address,” [34] including the prominence of guns in domestic violence and school shootings. This is where our rule of sliding levels of abstraction come into play:
1) The more alike a modern circumstance is to its proposed historical analog, the lower the level of abstraction.
2) The more disalike a modern circumstance is to its proposed historical analog, the higher the level of abstraction.
For example, in District of Columbia v. Heller, 554 U.S. 570 (2008), the Court recognized the validity of “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings….” [35] Bruen specified three additional “sensitive places” at which the prohibition of firearms was historically acceptable: “legislative assemblies, polling places, and courthouses….” [36] When evaluating modern firearm restrictions in the sensitive places identified in Heller and Bruen, we turn to our first rule. Because the character, function, and legal treatment of schools, legislative buildings, polling places, and courthouses have not substantially evolved since the adoption of the Second Amendment (i.e., the modern circumstances and their proposed historical analogs are alike), we assess the constitutionality of firearm restrictions in such places in accordance with principles operating at lower levels of abstraction.
However, when the opposite is true—a modern circumstance and its proposed historical analog are disalike—our second rule calls for elevating the level of abstraction. Bruen’s analysis of proposed historical analogues to New York State’s licensing scheme is instructive. Consider a statute enacted in East New Jersey in 1866, which prohibited the concealed carry of “pocket pistol[s]” and other “unusual or unlawful weapons.” [37] Because the pocket pistols, muskets, and carbines of the 1600s are no longer in use today, Bruen conducted its analogical analysis of the statute at a higher level of abstraction (compared to that of the “sensitive place” regulations, for example).
Bruen observed that the East New Jersey statute proscribed only “unusual or unlawful weapons” like pocket pistols. It follows that the statute did not apply to all pistols, nevermind all firearms, only covering a small subset of “unusual” and “unlawful” ones. For example, while the pocket pistols proscribed under the statute had barrel lengths of only three to four inches, they were not as common as the “belt and hip” pistols with six to fourteen inch barrels. In addition, the use of long guns for self-defense, including the musket and carbine, was ubiquitous among early planters. For this reason, Bruen deduced that the statutory proscription did not apply to “belt and hip” pistols or long guns, such as the musket and carbine. Thus, the Bruen Court concluded that, for the purpose of analogizing the East New Jersey statute to New York State’s regulatory regime, that 17th century regulation evinces the rule that the Second Amendment protects firearms “in common use at the time, as opposed to those that are highly unusual in society at large.” [38]
Bruen’s rule illustrates the value of intermediate-to-high levels of abstraction when applying old text to new phenomena. Instead of fixating on the specific firearms of the 1600s, which lack suitable direct analogues, Bruen drew a general distinction, observing that the pocket pistol was deemed “unusual” and “unlawful,” whereas the “belt and hip” pistol, musket, and carbine were commonly used and thus untouched by the statutory prohibition. From this general distinction, Bruen evinced the rule that the Second Amendment does not protect the firearms deemed “unusual” and “unlawful” according to today’s standards and does protect the firearms in common use today. As Bruen’s analysis indicates, principles that operate at intermediate-to-high levels of abstraction lend themselves to general rules, readily applicable to today’s society, and avoids anachronistic rules (such as rule asserting that the Second Amendment does or does not protect the use of a firearm exclusively because a particular historical regulation permitted or proscribed its use) that induce courts to, as we termed it, “die on the hill of history.” [39]
vi. A Judicially Appropriate Inquiry
A third asset of operating at intermediate-to-high levels of abstraction is that this approach provides courts with a judicially appropriate inquiry. When the level of abstraction is too low, and courts engage in direct comparison between modern circumstances and their historical counterparts without an analogical intermediary, they tend to delve into intensive historical inquiries for which they lack the requisite expertise and resources. In the words of Justice Breyer, “[j]udges are far less accustomed to resolving difficult historical questions. Courts are, after all, staffed by lawyers, not historians.” [40]
Justice Bryer is right. It is difficult to imagine why or how any judge or court is qualified to engage in a direct citation of history without a legally appropriate intermediate inquiry. Fortunately, analogical reasoning operating at intermediate-to-high levels of abstraction supplies this inquiry. As Justice Thomas explained, “reasoning by analogy … [is] a commonplace task for any lawyer or judge.” [41] The ability to analogize between two cases with different facts but a similar overarching principle is central to the work of the legal profession.
IV. A Tradition of Abstraction
According to Blocher and Ruben, in its adoption of a standard grounded in analogical reasoning based on principled operating at intermediate-to-high levels of abstraction, “Bruen depart[ed] dramatically from traditional forms of implementing doctrine.” [42] While Bruen indeed charted new waters within the context of the Second Amendment, our jurisprudence offers an overlooked but nevertheless rich tradition of this brand of legal reasoning. We will first consult the unlikely duo of Loving v. Virginia, 388 U.S. 1 (1967) and Bostock v. Clayton County, 590 U.S. ___ (2020), two landmark civil rights cases over which originalists have spilled heaps of ink trying to justify their socially desirable outcomes in originalist theory. In Loving and Bostock, the Court adopted our analogical model, applying principles operating at intermediate-to-high levels of abstraction to account for the intolerable disparity between modern circumstances and their historical analogs.
i. Loving v. Virginia
In June 1958, two Virginia residents, Mildred Jeter, a black woman, and Richard Loving, a white man, married in Washington D.C. Four months later, a grand jury returned an indictment that charged the newlyweds with violating Virginia’s statutory ban on interracial marriages. In defense of the constitutionality of its miscegenation statutes, Virginia asserted that “because its … statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race.” [43] The Loving Court rejected Virginia’s argument, holding that Virginia’s ban on interracial marriage violated the Equal Protection Clause.
Consistent with our rule that a disparity between a modern circumstance and its proposed historical analog warrants heightened analogical abstraction, the Loving Court recognized that the societal and legal treatment of interracial relationships had evolved since the adoption of the Fourteenth Amendment nearly one hundred years earlier. Loving noted that in the fifteen preceding years, “14 States ha[d] repealed laws outlawing interracial marriages: Arizona, California, Colorado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming.” [44] In 1948, the Supreme Court of California was the first state court to declare that bans on interracial marriage violated the Equal Protection Clause. Loving also invoked the landmark civil rights cases of Meyer v. Nebraska, 262 U.S. 390 (1923) and Skinner v. Oklahoma, 316 U.S. 535 (1942) in defense of interracial marriage. Lastly, Loving rejected Virginia’s argument under Pace v. Alabama 106 U.S. 583 (1883), citing that “as recently as the 1964 Term … we stated ‘Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.’” [45] On account of the liberal evolution of the legal treatment of interracial marriage since the adoption of Fourteenth Amendment in 1868, the Loving Court chose to employ an intermediate-to-high level of abstraction to neutralize the effect of abhorrent historical sensibilities with respect to race.
In one sense, the dispositive inquiry in Loving was the definition of a “distinction[] drawn according to race.” [46] The narrow definition proposed by Virginia was that only a distinction that treats one race differently than another qualifies as a “distinction[] drawn according to race.” Had the Loving Court adopted Virginia’s low level of abstraction to assess the constitutionality of its miscegenation law, the mere fact that interracial marriage was largely prohibited at or around the time of the adoption of the Fourteenth Amendment might have sufficed to uphold Virginia’s ban on interracial marriage nearly one hundred years later. Under Virginia’s proposed definition, its ban on interracial marriage would have passed constitutional muster since it treats whites and blacks exactly the same, imposing the neutral requirement of marrying within one’s own race on whites and blacks alike. In other words, Virginia’s law did not treat whites and blacks unequally, but rather intraracial couples and interracial couples. This version of unequal treatment is not a “distinction[] drawn according to race,” but one drawn according to miscegenation.
To sidestep this regrettable outcome, the Loving Court reformulated Virginia’s proposed language, electing to augment the level of abstraction: “The statutes proscribe generally accepted conduct if engaged in by members of different races.” [47] In other words, any distinction whereby, if the race of the punished individual had been different, they would not be subject to the punishment of the law, qualifies as a “distinction[] drawn according to race.” While the two definitions may seem to be reiterations of each other, Loving’s reformulated interpretation extracts a principle operating at a substantially higher level of abstraction than that which Virginia had proposed—i.e., treating the individual as is and simply assessing whether or not Virginia’s law draws a distinction between the races by treating Ms. Jeter worse than otherwise similarly situated white women. Rejecting this formula, the Loving Court, traveling from the real to the hypothetical, chose to assess the treatment of Ms. Jeter under the Virginia law not as she was in reality (a black woman), but as a hypothetical white version of herself. Under its hypothetical test, Loving observed that, if Ms. Jeter had been a white woman, Virginia’s law would cease to proscribe her marriage with Mr. Loving. On this basis, the Loving Court held that “Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race” [48] and deemed this racial distinction to violate the Equal Protection Clause.
ii. Bostock v. Clayton County
Bostock, a consolidation of three cases, follows a similar pattern. In each case, an “employer fired a long-time employee shortly after the employee revealed that he or she [wa]s homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.” [49] The three employees alleged sex discrimination under Title VII of the Civil Rights Act of 1964, which prohibits employment “discrimination because of race, color, religion, sex, or national origin.”
Like the Loving Court, the Bostock Court recognized that the societal and legal treatment of homosexual and transgender citizens had meaningfully evolved since the adoption of Title VII in 1964. Bostock observes that, “[n]ot long after the law’s passage, gay and transgender employees began filing Title VII complaints,” seeking protection from employment discrimination. [50] In addition, “less than a decade after Title VII’s passage, during debates over the Equal Rights Amendment, others counseled that its language—which was strikingly similar to Title VII’s— might also protect homosexuals from discrimination.” [51] Over the last few decades, countless bills have been proposed in Congress to add “sexual orientation” [52] and “gender identity” [53] to the list of Title VII’s protections, reflecting our updated moral sensibilities with respect to the treatment of homosexual and transgender citizens under the law. For example, “even back in 2007—a veritable lifetime ago in American attitudes about sexual orientation—the House voted 235 to 184 to prohibit sexual orientation discrimination in employment.” [54] In 2013, the Senate overwhelmingly approved a comparable bill, 64 to 32. [55] In 2019, the House of Representatives voted 236 to 173 in favor of “a bill that would amend Title VII by defining sex discrimination to include both ‘sexual orientation’ and ‘gender identity,’” [56] Even though these bills were never signed into law, they evince a record of meaningful legislative efforts to secure the rights and privileges of homosexual and transgender citizens, signifying a sharp departure from the prejudiced attitudes of the 1960s.
Consistent with our rules governing analogical reasoning, the Bostock Court, in light of the disparity between the treatment of sexual minorities today and that at or around the adoption of Title VII, chose principles operating at an intermediate-to-high level of abstraction. The dispositive inquiry in Bostock boiled down to what constitutes “discrimination because of … sex” under Title VII. According to Justice Alito, “discrimination because of … sex” “means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.” [57] However, the Bostock majority declined to adopt Justice Alito’s narrow definition of “discrimination because of … sex,” opting instead for a principle operating at a higher level of abstraction. Much like the Loving Court, the Bostock Court essentially posited that, under Title VII, “discrimination because of … sex” refers to any distinction whereby, if the sex of the employee had been different, the employer would not have “‘fail[ed] or refuse[d] to hire,’ ‘discharge,’ ‘or otherwise . . . discriminate[d] against’” [58] that employee. While these two definitions may seem to be reiterations of each other, as in Loving, they in fact generate different outcomes.
Justice Alito limited the scope of his inquiry to the treatment of the three employees under Title VII. Gerald Bostock, Donald Zarda, and Aimee Stepehens were each fired on the basis of their homosexual or transgender status, and because “[h]omosexuality and transgender status are distinct concepts from sex, … and discrimination because of sexual orientation or transgender status does not inherently or necessarily constitute discrimination because of sex,” [59] the three employees cannot claim sex discrimination under Title VII. Rejecting Justice Alito’s straightforward interpretation of Title VII, Bostock took a page out of the Loving playbook, “traveling from the real to the hypothetical…” [60]
“Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.” [61]
Now contrast Bostock’s hypothetical with the actual experiences of Gerald Bostock and Donald Zarda. Bostock was employed by Clayton County, Georgia as a child welfare advocate. County officials discovered Bostock’s participation in a gay recreational softball league, and “fired [him] for conduct ‘unbecoming’ a county employee.” [62] Zarda was employed by Altitude Express as a skydiving instructor. Following several years of employment, “Mr. Zarda mentioned he was gay and, days later, was fired.” [63]
In the cases of Bostock and Zarda, their employers, Clayton County and Altitude Express, always had knowledge of their male sex. What was revealed to their employers for the first time was their sexual orientation: Bostock by participating in a gay softball league and Zarda by personally disclosing his homosexuality. However, at Bostock’s hypothetical office holiday party, the reverse is true. We have no knowledge of the model employee’s sex, but do know that his or her sexual preference is women. Having reformulated the facts as such, Bostock concluded that, in the case of an employer unwilling to employ homosexuals, if the employee is revealed to be a woman, she will be fired, and if he is revealed to be a man, he will not be fired. Thus, Bostock’s hypothetical employee is only fired when the employer learns of his or her sex, which would seem to violate Title VII’s prohibition of “discrimination because of … sex.” However, recall that in the actual experiences of Bostock and Zarada, they were fired only when their employers learned of their sexual orientation, not their sex.
Once again, the Court in Bostock heightened the level of abstraction, releasing itself from the factual constraints of the actual experiences of Bostock and Zarda and substituting a hypothetical employee whose story created the perception of sex discrimination where that of Bostock and Zarda did not. This heightened level of abstraction led Bostock to the conclusion that, “[f]or an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex,” [64] in contravention of Title VII.
iii. Analysis
In Loving and Bostock, the Supreme Court rested its interpretation of the Equal Protection Clause and Title VII on principles operating at intermediate-to-high levels of abstraction. Recognizing this alternative tradition in the face of the conventional guidance that analogical reasoning is best served by “principles that operate at a low or intermediate level of abstraction” [65] is valuable because as this Article has argued, some legal inquiries, especially within the context of the Second Amendment, justify the extraction of principles operating at intermediate-to-high levels of abstraction.
One common thread tying Loving and Bostock together was the method of abstraction. In each case, the Court resorted to the formulation of hypotheticals to lift the level of abstraction. Loving assessed the treatment of Ms. Jeter under Virginia’s miscegenation law not as she was in reality (a black woman), but as a hypothetical white version of herself. At this hypothetical level, Loving observed that, if Ms. Jeter had been a white woman, Virginia’s law would cease to proscribe her marriage with Mr. Loving. Likewise, in Bostock, the Court abstracted beyond the actual experiences of Gerald Bostock and Donald Zarda and substituted a hypothetical employee whose story created the perception of sex discrimination where that of Bostock and Zarda did not. Unlike Bostock and Zarda, who were only fired when their employers learned of their sexual orientation, Bostock’s hypothetical employee is only fired when the employer learns of his or her sex. On this basis, Bostock concluded that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex,” [66] thus violating Title VII.
Like in Bruen, the application of principles operating at intermediate-to-high levels of abstraction in Loving and Bostock cured the blinkered and abhorrent historical sensibilities that clung onto outdated laws. Had the Loving Court adopted Virginia’s low level of abstraction to assess the constitutionality of its miscegenation law, the mere fact that interracial marriage was largely prohibited at or around the time of the adoption of the Fourteenth Amendment might have sufficed to uphold Virginia’s ban on interracial marriage nearly one hundred years later. However, analyzing Virginia’s law at a higher level of abstraction enabled the Loving Court to bypass the effect of the racist attitudes toward blacks and interracial couples and conclude that the law violated the Equal Protection Clause. Similarly, had the Bostock Court assessed the treatment of homosexual and transgender employees under Title VII at the low level of abstraction proposed by Justice Alito, “the plain truth … that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment” [67] might have sufficed to deny the application of Title VII to homosexual (and transgender) employees. However, Bostock abstracted beyond the actual experiences of Gerald Bostock and Donald Zarda and ventured into the hypothetical, enabling the Court to cure the effect of the outdated sensibilities of the 1960s as described by Justice Alito and extend Title VII’s coverage to employees subject to discrimination on the basis of sexual orientation.
V. Conclusion
To some readers, this Article’s examination of the Loving and Bostock rulings may seem to cast doubt on the validity of the reasoning provided therein. While we celebrate their enlightened outcomes, to some extent we do reserve doubts about the soundness of their legal justification. However, as Justice Scalia told CBS News anchor Charlie Rose a few months removed from the Court’s ruling in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), the debate over the legitimacy of Loving and Bostock is “water over the dam.” [68] Setting aside some questionable methodological choices, Loving and Bostock nevertheless evince an overarching tradition of analogical reasoning based on principles operating at intermediate-to-high levels of abstraction. Accordingly, we invite post-Bruen courts to build upon and refine this tradition according to the legally sound and readily applicable principles that we endorsed in Sections II and III of this Article.
Endnotes
[1] §400.00(2)(f) (West Cum. Supp. 2022).
[2] In re Klenosky, 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257 (1980).
[3] In re Martinek, 294 App. Div. 2d 221, 222, 743 N. Y. S. 2d 80, 81 (2002).
[4] 593 U. S. ___ (2021).
[5] New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___, 9 (2022).
[6] Ibid.
[7] Ibid.
[8] Id., at 15 (emphasis added).
[9] Id., at 21.
[10] Id., at 20.
[11] Cass R. Sunstein, “On Analogical Reasoning,” Harvard Law Review 106, no. 3 (Jan. 1993): 774 https://doi.org/10.2307/1341662.
[12] Schauer, Frederick, and Barbara A. Spellman. “Analogy, Expertise, and Experience.” The University of Chicago Law Review 84, no. 1 (2017): 254. http://www.jstor.org/stable/44211833.
[13] Sunstein, “On Analogical Reasoning,” 747.
[14] i (emphasis added).
[15] Ibid (emphasis added).
[16] Ibid.
[17] Ibid.
[18] Blocher, Joseph and Ruben, Eric, Originalism-by-Analogy and Second Amendment Adjudication (May 20, 2023). 133 Yale L.J. 99 (2023): 110. Duke Law School Public Law & Legal Theory Series No. 2023-26, SMU Dedman School of Law Legal Studies Research Paper No. 605, Available at SSRN: https://ssrn.com/abstract=4408228.
[19] Bruen, 597 U.S., at 20 (2022).
[20] Blocher and Ruben, “Originalism-by-Analogy,” 165.
[21] Bruen, 597 U.S., at 31-38, 41-43 (2022).
[22] United States v. Carpio-Leon, 701 F.3d 974, 979-80 (4th Cir. 2012).
[23] Blocher and Ruben, “Originalism-by-Analogy,” 165.
[24] p.7
[25] Scalia, Antonin., Garner, Bryan A.. Reading Law: The Interpretation of Legal Texts. United States: Thomson/West, 2012.
[26] Id., at 74 (emphasis added).
[27] Id., at 80 (emphasis added).
[28] U.S. Constitution, amend. I
[29] Scalia and Garner, Reading Law, 36.
[30] https://www.merriam-webster.com/dictionary/speech.
[31] John Ash, 1775 The New and Complete Dictionary of the English Language, 2 vols.
[32] Blocher and Ruben, “Originalism-by-Analogy,” 165
[33] Id., at 109.
[34] Ibid.
[35] District of Columbia v. Heller, 554 U.S. 570, 626 (2008).
[36] Bruen, 597 U.S., at 21 (2022).
[37] An Act Against Wearing Swords, &c., ch. 9, in Grants, Concessions, and Original Constitutions of the Province of New Jersey 290 (2d ed.1881) (Grants and Concessions).
[38] Bruen, 597 U.S., at 38, 39 (2022)
[39] p. 1
[40] Bruen, 597 U.S., 26 (2022) (BREYER, J., dissenting).
[41] Id., at 19.
[42] Blocher and Ruben, “Originalism-by-Analogy,” 133.
[43] Loving v. Virginia, 388 U.S. 1, 8 (1967).
[44] Id., at 6.
[45] Id., at 10, citing McLaughlin v. Florida, 379 U.S. 184, 188 (1964) (emphasis added).
[46] Id., at 11.
[47] Ibid.
[48] Ibid.
[49] Bostock v. Clayton County, 590 U.S. ___, 2 (2020).
[50] Id., at 26, citing Smith v. Liberty Mut. Ins. Co., 395 F. Supp. 1098, 1099 (ND Ga. 1975) (addressing claim from 1969); Holloway v. Arthur Andersen & Co., 566 F. 2d 659, 661 (CA9 1977) (addressing claim from 1974).
[51] Ibid. See, e.g., Note, The Legality of Homosexual Marriage, 82 Yale L. J. 573, 583–584 (1973).
[52] E.g., H. R. 166, 94th Cong., 1st Sess., §6 (1975); H. R. 451, 95th Cong., 1st Sess., §6 (1977); S. 2081, 96th Cong., 1st Sess. (1979); S. 1708, 97th Cong., 1st Sess. (1981); S. 430, 98th Cong., 1st Sess. (1983); S. 1432, 99th Cong., 1st Sess., §5 (1985); S. 464, 100th Cong., 1st Sess., §5 (1987); H. R. 655, 101st Cong., 1st Sess., §2 (1989); S. 574, 102d Cong., 1st Sess., §5 (1991); H. R. 423, 103d Cong., 1st Sess., §2 (1993); S. 932, 104th Cong., 1st Sess. (1995); H. R. 365, 105th Cong., 1st Sess., §2 (1997); H. R. 311, 106th Cong., 1st Sess., §2 (1999); H. R. 217, 107th Cong., 1st Sess., §2 (2001); S. 16, 108th Cong., 1st Sess., §§701–704 (2003); H. R. 288, 109th Cong., 1st Sess., §2 (2005).
[53] See, e.g., H. R. 2015, 110th Cong., 1st Sess. (2007); H. R. 3017, 111th Cong., 1st Sess. (2009); H. R. 1397, 112th Cong., 1st Sess. (2011); H. R. 1755, 113th Cong., 1st Sess. (2013); H. R. 3185, 114th Cong., 1st Sess., §7 (2015); H. R. 2282, 115th Cong., 1st Sess., §7 (2017); H. R. 5, 116th Cong., 1st Sess. (2019).
[54] Bostock, 590 U.S., at 26 (KAVANAUGH, J., dissenting), citing H. R. 3685, 110th Cong., 1st Sess
[55] S. 815, 113th Cong., 1st Sess.
[56] Bostock, 590 U.S., at 2 (ALITO, J., dissenting), citing H.R.5, 116th Cong., 1st Sess. (2019).
[57] Id., at 5 (ALITO, J., dissenting).
[58] Id., at 7
[59] Id., at 17 (ALITO, J., dissenting).
[60] p. 12
[61] Bostock, 590 U.S., at 11.
[62] Id., at 3.
[63] Ibid.
[64] Id., at 12.
[65] Sunstein, “On Analogical Reasoning,” 747.
[66] Bostock, 590 U.S., at 19.
[67] Id., at 28 (ALITO, J., dissenting).
[68] https://www.huffpost.com/entry/scalia-health-care-ruling_n_2207417