For twelve years after District of Columbia v. Heller, the Supreme Court said almost nothing about the Second Amendment, and the lower courts settled into a workable two-step test. Then, in June 2022, New York State Rifle & Pistol Association v. Bruen struck down New York's century-old "proper cause" requirement for carrying a handgun in public and threw out the test the circuits had built, replacing it with a single question: is a modern gun law consistent with the nation's historical tradition of firearm regulation?
In this TalksOnLaw interview, recorded in the summer of 2022, Joel Cohen speaks with Joseph Blocher, the Lanty L. Smith '67 Distinguished Professor of Law at Duke Law School and Co-Founder and Faculty Director of the Duke Center for Firearms Law, who worked on the District of Columbia's briefing in Heller and is one of the country's leading Second Amendment scholars, about what Bruen held, how the new "text, history, and tradition" test works, and what it would mean for the wave of litigation to come.
From Heller to Bruen
Blocher traces the doctrine from Heller's recognition of an individual right to keep a handgun at home for self-defense, including the paragraph of "presumptively lawful" regulations he calls "the price of Kennedy's vote," through McDonald's extension of the right to the states, to the Court's long silence. He explains the landscape of public-carry law that Bruen confronted: in 1987 most states either banned concealed carry or gave officials discretion to deny permits; by 2022, 43 states issued permits as a matter of course or required no permit at all, and New York was one of a handful that still asked applicants to show a special need.
The New Test
Blocher walks through the holding and Justice Thomas's rejection of means-end scrutiny in favor of history, a method traced to then-Judge Kavanaugh's dissent in the D.C. Circuit. He explains why he filed an amicus brief "in support of neither party" defending the old two-step framework, and lays out his concerns with the new one: the test is "history all the way down," it leaves no room to weigh a law's contemporary costs and benefits, analogies across centuries are easy to manipulate, the historical record varies by region, and categories like "felon" and "domestic abuser" did not exist in 1791. He also notes what the majority left out, the Heller list of permissible regulations that Justices Kavanaugh and Roberts had to restore in a concurrence, and points to Duke's Repository of Historical Gun Laws as the resource the new test makes indispensable.
What Comes Next
Blocher predicts how the handful of may-issue states will respond: rewrite their licensing laws to look like shall-issue regimes, with training and objective criteria, and then designate "sensitive places" where even licensed carry is barred. He describes the "terrible symmetry" of sensitive-places arguments, in which every location is either too dangerous for guns or too dangerous to go without them, and discusses the Bipartisan Safer Communities Act, signed two days after Bruen, including its funding for state red-flag laws, which he argues fit a historical tradition of disarming dangerous people. Justice Breyer's dissent and its statistics, 45,000 gun deaths in 2020, most of them suicides, frame the stakes.
What to Know Now
Much of what Blocher anticipated has happened. New York rewrote its law as the Concealed Carry Improvement Act, and the Second Circuit upheld nearly all of it in Antonyuk v. James (2023 and, after a remand, 2024), leaving only the social-media disclosure requirement and the rule treating private property as off-limits by default enjoined; the Supreme Court declined review in 2025. In United States v. Rahimi (2024) the Court clarified the test, holding 8–1 that a modern law need only be "relevantly similar" to a historical tradition, not a "historical twin," and upholding the federal ban on gun possession by people under domestic-violence restraining orders.
The Court has since taken up Bruen's loose ends. In Wolford v. Lopez (June 2026) it struck down, 6–3, Hawaii's rule barring licensed carriers from private property open to the public unless the owner expressly consents, a decision that bears on similar provisions in New York, New Jersey, California and Maryland. In United States v. Hemani (June 2026) it held that the federal ban on gun possession by unlawful drug users cannot be applied to a person based on regular marijuana use alone. And in June 2026 it granted review in Viramontes v. Cook County and Grant v. Higgins, which ask whether the Second Amendment protects AR-15-style rifles, with a decision expected by mid-2027. The courts of appeals remain divided over the felon-in-possession ban after the Third Circuit's en banc decision in Range v. Attorney General (2024) permitted as-applied challenges, and over gun sales to 18-to-20-year-olds. Permitless carry is now the law in 29 states, and 21 states and the District of Columbia have red-flag laws. For the Court's later Second Amendment decisions, see Professor Blocher's TalksOnLaw interview Gun Rights under Rahimi & Cargill.
