Text, History, & Tradition Test
The Supreme Court recently declared a new standard for Second Amendment jurisprudence, "text, history, and tradition." Established by the 2022 landmark decision, NYSRPA v. Bruen, the text, history, and tradition test now governs laws restricting the right to keep and bear arms – invalidating any gun laws that fail to meet its standard. Second Amendment scholar, Prof. Joseph Blocher of Duke Law School explains the new test, its history, and some potential questions surrounding its application. Prof. Blocher explains that the new test supplants a prior 2A test, generally referred to as the “two-part test.” He then compares and contrasts the two-part test and the newly confirmed text, history, and tradition test and suggests some likely challenges in applying the new rule.
Additional Resources
Cases Discussed
- NYSRPA v. Bruen (2022) Expanded Second Amendment rights outside of the home and established a new Second Amendment test.
- Heller v. DC (2011) Dissent by then Judge Kavanaugh helped to establishe the text, history, and tradition test established by the Supreme Court in Bruen.
- Second Amendment to the United States Constitution. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Related Pages
- Gun Laws after Bruen – a 1hr titans of law interview with Prof. Blocher on the Supreme Court's decision in NYSFPA v. Bruen and its impact.
- Sensitive Places under the Second Amendment – restrictions on firearms are permited in areas deemed "sensitive" under Second Amendment doctrine.
- McDonald v. Chicago – Supreme Court case that established (through the 14th Amendment) that the 2nd Amendment right to keep and bear arms is applicable to states. (2010)
- Duke Center for Firearms Law – dedicated to the development of firearms law as a scholarly field, through the development and support of reliable, original, and insightful scholarship, research, and programming on firearms law.