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Scientific Context, Suicide Prevention, and the Second Amendment After Bruen

By ERIC RUBEN. Full Text. 

The Supreme Court declared in New York State Rifle & Pistol Ass’n v. Bruen that modern gun laws must be “consistent with this Nation’s historical tradition of firearm regulation” to survive Second Amendment challenges. Scholarship has shown how this test of historical analogy presents difficulties because of how technological, legal, and social change has shaped policy over the centuries. This Article is the first to assess Bruen as it applies to suicide-prevention laws, and, in doing so, illuminates another form of change that complicates Bruen’s implementation: scientific progress.

As this Article shows, early generations of Americans fundamentally misunderstood mental illness and suicide, and that misunderstanding influenced societal approaches to suicide prevention. Theories about the causes of suicide and mental illness ranged from the supernatural to the pseudo-scientific; from demonic possession to erroneous views about blood-borne disease. Americans pursued policies and prevention measures consistent with those explanations, such as posthumous criminal punishment and intentional bleeding. Such approaches are far afield from the more effective ways to prevent suicide that we have developed through modern science like psychotherapy, medication, and, importantly for gun policy, restricting access to firearms— the most lethal method commonly used in U.S. suicides.

The state of mental health science at the Founding renders comparisons of past and present suicide-prevention measures pursuant to Bruen’s doctrinal mandate fraught from the get-go. The Article concludes by discussing implications, including suggesting other ways that scientific context informs gun policy that warrant further consideration.