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Noted Supreme Court critic Eric Segall has been criticizing the majority opinion in New York State Rifle & Pistol Ass'n v. Bruen for its failure to engage in any kind of means-end balancing in striking down a New York gun control measure--balancing that he argues the Court has engaged in since the Reconstruction era. Segall is hardly the only American law professor to level this charge. But the lack of balancing in Bruen is neither unprecedented nor methodologically innovative. It certainly does not reflect a victory of originalism. Instead, the Bruen decision stands firmly in the tradition that courts do not engage in balancing when confronting a certain kind of unlawful government action. I call that kind of conduct anti-constitutional, as opposed to the more usual unconstitutional government conduct. Although this terminology is novel, the distinction is nothing new. Most of the time, when regulating in the field of constitutional rights, the government itself balances the weight of its interests against the importance of the constitutional value at issue. When the government judges that balance differently from the way the courts do, a good-faith error has been made and the government action in question--whether a statute or some administrative decision--may be held unconstitutional. In contrast, cases involving anti-constitutional government conduct do not follow this pattern.

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This work is licensed under a Creative Commons Attribution 4.0 International License.