Breaking Down Bruen

Adam Wood • August 8, 2024

TL;DR: 


The Bruen decision shifts how courts assess gun laws, requiring them to align with historical regulations from around 1791 to 1868. While the decision sets a stricter standard for modern firearm regulations, it raises concerns about the "in common use" test, which could be influenced by current laws, creating a feedback loop that distorts Second Amendment protections. The focus should remain on the original intent of the Second Amendment, not on later laws or interpretations.


Background: 


New York State Rifle and Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111 (2022), was a 2022 case in the United States Supreme Court about firearms licensing and permitting laws. The case addressed the constitutionality of New York’s licensing regime for carrying handguns which, at the time, required a showing of special need or just cause. This contrasted with most other states at the time (besides the equally obstreperous Hawaii and California), which were so-called “may issue” (leaving it up to the sheriff or other law enforcement official) or “shall issue” (requiring issuance so long as criteria were met) jurisdictions, that just checked for mental health or criminal records. Many of these states also required competency before issuing a carry permit, often requiring either military/law enforcement training or attending a class on basic firearms operation and safety.


But does the Second Amendment only protect people who “need” to carry a firearm?


Procedural History: 


Petitioners, a public interest group whose members were affected by New York’s laws, challenged this requirement on the grounds that it violated their Second Amendment rights. The appeal came after cases in the Northern District of New York and the 2nd Circuit Court of Appeals ruled in favor of Bruen (the superintendent of the New York State Police).


The Second Amendment and its History in the Courts: 


The Second Amendment of the United States Constitution states: 

“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.” 


Prior to Bruen, the Supreme Court only heard a few cases on the Second Amendment. In earlier decisions, it held that the Second Amendment protected citizens’ right to keep arms for self-defense in the home. District of Columbia v. Heller, 554 U.S. 570 (2008). The Court further held that the first part (or “prefatory clause”) of the Second Amendment, “A well regulated Militia,” does not refer to a government-run or -sponsored entity, and therefore would not apply to private citizens, but merely announces the right’s purposes, that being the right of people to keep arms for self-defense. Ibid. These protections apply to state and federal firearms laws via incorporation under the 14th Amendment. McDonald v. City of Chicago, 561 U.S. 742 (2010).


Thereafter, state and federal courts grappled with these decisions in either upholding or striking down regulations. This led to a so-called “Circuit Split.” 


What’s a Circuit Split?


Federal courts are organized, from lowest level to highest level, into District Courts (where trials take place), Circuit Courts (which hear appeals from the District Courts), and the Supreme Court (which, among other things, hears only a select few appeals aka “grants a writ of certiorari”); so a “Circuit Split” is when some federal appellate courts disagree with others. This is good for law students looking for something to write about in law review articles, but bad for everyday citizens whose rights are being affected. 


Common Law 101:


What emerged was a two-factor test. The United States is part of the English common-law tradition, meaning that “the law” is not only what’s codified in the United States Code, the Code of Federal Regulations, or their state equivalents, but also what has existed and been developed in the courts for centuries. Some things, like negligence, are purely common-law constructs. Most states do not have a “negligence statute,” but merely years and decades of case law defining the limits and bounds of the civil cause of action. When interpreting statutes, regulations, and the Constitution, the common law serves to interpret the law and apply it to the specific circumstances of the case before the court. In doing so, courts develop “tests,” or multifactor ways of analyzing and deciding a type of case. This could mean that a case has to meet all of the elements of a test in order to prevail, or it could mean that courts weigh different factors and use what many courts call a “balancing test” or “holistic approach” (oftentimes a euphemism for deciding it however they want and not really telling you how or why they reached that conclusion, since they don’t specify the weight or impact of one factor over another). After McDonald, courts came up with a two-factor test of determining whether the regulation impacted a person’s Second Amendment rights and the regulation’s proximity to and impact on the core of the Second Amendment’s protections. Bruen, at 2126. The Supreme Court, however, declined to use this test and overruled its rationale.


A New Approach:


In Bruen, the Supreme Court determined that firearms regulations must be in keeping with our Nation’s regulatory tradition, i.e. those firearms regulations that existed at the time of the Second Amendment (1791) and the Fourteenth Amendment (1868). The Court does not require exactly the same language as those historical regulations, or mere facsimiles of 1791-1868 laws, instead holding that modern laws may be “analogous enough to pass constitutional muster.” United States v. Rahimi, 602 U.S. __ (2024), p. 11, (Citing Bruen, at p. 30). "[A]nalogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin." Bruen, 142 S.Ct. 2111, 2133. 


So what does that mean? 


Here are the key takeaways:

The government (state or federal) must demonstrate that the firearm regulation is consistent with our historical (i.e. 1791-1868, roughly America’s founding through the Reconstruction era) tradition of firearms regulations. The Second Amendment is not limited to arms in existence at this time, but extends to new inventions that deserve the same categorical protection as the Second Amendment intends to provide: “Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated." Bruen, 142 S.Ct. 2111, 2132 (2022). The government (and the challenging party for that matter) can provide historical evidence such as state or local laws from that time period to show their similarity or dissimilarity to the challenged regulation.


Importantly, the existence of “a” regulation from that era is not enough, since Bruen requires that current regulations be in keeping with our Nation’s “tradition,” meaning the collective and common understanding of firearms protections, not a one-off rogue county or what have you. Id. at 2130-2140.


What Questions Remain?


In the short time since the Bruen decision, courts have addressed this new approach, which effectively ruled that the United States, as a whole, is a “shall issue” jurisdiction. (E.g. Rahimi, supra (challenging 18 U.S.C. §922(g)’s ban on gun/ammunition ownership during a domestic violence restraining order). Many more are sure to come, as state and federal regulations are challenged under this new framework. 


Selective Filtering and the Two-Step Bruen Framework:


The Bruen decision emphasizes that firearm regulations must align with the Nation’s historical tradition, primarily from 1791 to 1868. This is the first and most important step in the analysis: if a regulation implicates conduct covered by the plain text of the Second Amendment, the burden shifts to the government to justify it under this historical tradition. Only if the regulation does not clearly implicate the Second Amendment’s protections does the burden remain with the challenger—and that’s where the “in common use” test from District of Columbia v. Heller, 554 U.S. 570 (2008), can still play a role.


The problem is that some courts—particularly those unfriendly to Second Amendment claims—may misapply this framework. They may too quickly find that the regulation either (a) does not implicate the plain text of the Second Amendment, or (b) is sufficiently analogous to some historical regulation, no matter how weak or isolated. That moves the inquiry into Step 2, shifting the burden to the challenger and triggering the “in common use” test.


While “in common use” can still serve as a failsafe for challengers, its utility is limited if courts improperly short-circuit the more demanding Step 1 historical inquiry. Worse still, if courts rely on current legal prohibitions to define what is “common,” they risk creating a circular logic problem: the banned item isn’t “common” because it’s banned. This feedback loop undermines the very protections that Heller and Bruen aim to preserve.


As Justice Barrett warned in her Bruen concurrence, post-enactment laws “should not be given more weight than they can rightly bear.” Bruen, 597 U.S. at 64 (Barrett, J., concurring). The focus should remain on ratification-era understanding. The “in common use” test is not invalid—it’s just insufficient if misused to sidestep the historical tradition analysis.


Closing Thoughts:


The Bruen decision redefined how courts assess Second Amendment challenges—grounding them in historical tradition rather than balancing tests or subjective policy goals. But it also left open important questions, including how and when to apply the “in common use” test from Heller. For now, any law that touches the Second Amendment must survive a history-based inquiry. And if it can’t, it likely can’t survive at all... except in jurisdictions that are unfriendly to the Second Amendment.


Contact Us:


If you have questions about firearms laws or are involved in litigation concerning your Second Amendment rights, contact Wood Law Offices, PLLC for strategic, litigation-focused representation in North and South Carolina.


Disclaimer:


This blog post is for general informational purposes only and is not legal advice. The opinions expressed are solely those of the author. This content is considered attorney advertising and does not establish an attorney-client relationship. For advice tailored to your situation, consult a qualified attorney licensed in your jurisdiction.


Sources, For the Curious (or Skeptical):



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