In the aftermath of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen in 2022, courts have struggled to consistently apply the two-step analysis for Second Amendment challenges that was articulated in that case, particularly in matters involving the commercial sale of firearms.
The ruling in Bruen requires courts to follow a two-step process. The first step examines whether the “plain text” of the Second Amendment covers the regulated conduct. If so, the regulation is “presumptively unconstitutional.” The second step allows the government to justify the regulation by demonstrating its consistency with historical traditions of firearm regulation.
However, several appellate courts have faltered in applying this framework. For instance, the U.S. Court of Appeals for the 3rd Circuit in United States v. Berger and others like the U.S. Courts of Appeals for the 10th and 1st Circuits have reached conclusions that challenge the principles laid out in Bruen. These courts have construed dicta from the earlier case, District of Columbia v. Heller, in ways that dismiss challenges at the first step, without advancing to the historical analysis that Bruen mandates.
This confusion arises from a misinterpretation of Heller‘s discussion of “presumptively lawful regulatory measures.” The Heller decision mentioned these measures within a context of historical traditions, not as carveouts that escape the plain-text question. These measures, such as restrictions on gun possession by felons and in sensitive places, do implicate the plain text but should be analyzed as historical exceptions, akin to obscenity or incitement under the First Amendment.
The critical takeaway is that part of Heller‘s language should not be used to bypass the thorough historical inquiry that Bruen requires in its second step. Instead, courts must evaluate whether the government can justify a regulation with robust historical precedent. Despite the confusion, the framework provided by Bruen and Heller is intended to function cohesively, providing a clear pathway for resolving Second Amendment disputes.
As courts continue to navigate these waters, the legal community must hold fast to the guidance that has been articulated by the Supreme Court, ensuring that Second Amendment jurisprudence remains consistent and faithful to its historical roots. You can access further information about how courts are handling Bruen by reading the full article on SCOTUSblog.