Key Takeaways
- Since Bruen (2022), a gun law that burdens conduct covered by the Second Amendment survives only if the government shows it is consistent with the nation's historical tradition of firearm regulation.
- The test replaced the two-part framework used by lower courts, which considered history but also weighed modern public safety interests through intermediate scrutiny.
- In Rahimi (2024), the Court held that the government need not find a historical twin, only a law consistent with the principles underlying the regulatory tradition.
How do courts decide whether a gun law is constitutional? And what happens when the answer depends on laws written more than two centuries ago?
In this TalksOnLaw Brief, Joseph Blocher, the Lanty L. Smith '67 Distinguished Professor of Law at Duke Law School and faculty director of the Duke Center for Firearms Law, explains the text, history, and tradition test adopted in New York State Rifle & Pistol Association v. Bruen, the framework it replaced, and the questions it raises.
Where the Test Came From
Professor Blocher traces the test to a dissent written by then-Judge Brett Kavanaugh on the D.C. Circuit, arguing that gun laws should be judged not by the tiers of scrutiny but by text, history, and tradition, and by analogy when those run out. No circuit court adopted that approach before Bruen, though it drew votes in dissenting opinions.
The Two-Part Framework
Before Bruen, courts used a two-part framework, which Professor Blocher defended in a Supreme Court brief filed in support of neither side. Step one asked whether a challenged law touched people, arms, or activities protected by the Second Amendment at all. That step was largely historical: District of Columbia v. Heller indicated that felons, the mentally ill, and dangerous and unusual weapons fall outside the right, much as libel falls outside free speech. At step two, courts usually applied intermediate scrutiny, asking whether the law was substantially related to an important interest. Because everyone agrees that saving lives is important, cases turned on tailoring. The old test included history but also weighed contemporary costs and benefits; the new one looks only to history.
Hard Questions for Judges
Professor Blocher sees two main challenges. First, there is not a single tradition. Concealed-carry regulation developed largely in the South, where it was seen as an assassin's way to carry, while the North restricted public carry more broadly, and cities have long regulated guns more strictly than rural areas. A judge must choose among them. Second, history can run out. Felony as a category, domestic violence as a crime, and places like airplanes did not exist in recognizable form in 1791. Asking how 1800s courts treated guns in saloons, he suggests, may yield few useful lessons. The answer can turn on how broadly a judge frames the question: the founding generation disarmed groups it considered dangerous, such as Native Americans and people who refused loyalty oaths, but not domestic abusers.
What to Know Now
The test remains the law, and the Court has addressed several of these concerns. In United States v. Rahimi (2024), it upheld the federal ban on gun possession by people under domestic-violence restraining orders, reasoning from historical surety and "going armed" laws and holding that a modern law need only be consistent with the principles behind the tradition, not a historical twin. In 2026, the Court applied the test to strike down Hawaii's default ban on carrying on private property in Wolford v. Lopez and to rule a federal drug-user prosecution unconstitutional as applied in United States v. Hemani. Supporters say the approach anchors the right in its original meaning; critics say it remains difficult for judges to apply. Questions about which era counts and how broadly to frame analogies remain open.
