How a Supreme Court Test Upended U.S. Gun Policy
Since June 2022, when the New York State Rifle & Pistol Association v. Bruen ruling was handed down by the U.S. Supreme Court, the legal landscape for gun policy in America has been transformed. But often, the so-called “Bruen test” hasn’t clarified Constitutional rights as much as muddied them—for lawmakers and courts alike. Let’s take a closer look.
A Gun Policy Litmus Test
The point of the Bruen test was to rein in judicial discretion by requiring modern gun regulations to align with the historical record of firearm regulation in the U.S. Under Bruen, gun laws are evaluated against a rigid two-step framework:
Does the regulation fall within the scope of the text of the 2nd Amendment?
If so, is it consistent with the nation’s historical tradition of firearm regulation (usually from the Founding Era or Reconstruction)?
Supporters of the Bruen test argue that it restores the original intent of the 2nd Amendment, and promotes consistency and restraint in the courts. They contend the standard better protects the enumerated right to keep and bear arms, treats it like other fundamental liberties, and limits judges from having the broad discretion to make policy judgments under the guise of “means-end” scrutiny. In other words, it prevents courts from engaging in ad-hoc balancing of public safety goals against individual rights, an approach proponents say was never constitutionally appropriate.
However, in practice, this “text, history, and tradition” test has hamstrung the already-slow process of policymaking and challenged judges, who increasingly have to perform the work of historians, poring over 18th- and 19th-century statutes to find an ancient analogue for a proposed modern law. Many judges, appointed by presidents of both parties, have lamented that the complex framework often produces contradictory outcomes.
Further, according to The Trace:
“[R]ather than remove ideology from the equation, an analysis of more than 1,600 2nd Amendment rulings over the past two years … found that it appears to be as big a part of judicial decision-making as ever. Post-Bruen, judges appointed by Republican presidents are more likely to strike down gun restrictions, while Democratic appointees are more likely to uphold them.”
Bruen’s promise to streamline 2nd Amendment adjudication has instead resulted in policymaking paralysis, legal confusion, and…more politics.
Latest Example: California’s Open Carry Ban
Earlier this month, a federal appeals court ruled that California’s ban on openly carrying firearms in most of the state is unconstitutional under Bruen. The San Francisco-based Ninth Circuit held in a 2-1 decision that the ban, which prohibits open carry in counties with populations over 200,000, violates the 2nd Amendment because open carry was historically widespread at the time of the nation’s founding.
Judge Lawrence VanDyke, writing for the majority, argued that California’s law cannot stand under Bruen’s approach since the historical record “makes unmistakably plain that open carry is part of this Nation’s history and tradition.” State officials are expected to seek a review of the three-judge panel’s ruling by the full appeals court.
California is arguably the most aggressive state in America on gun regulation, so it’s not at all surprising that one of its laws was tripped up by Bruen. But no matter what your opinion is of open carry, the issue is that Bruen insists that 21st-century policymaking take a back seat to centuries-old precedents. As California Attorney General Rob Bonta noted following a prior Bruen court challenge, the test wasn’t intended to create a “regulatory straitjacket for states.” But in effect, it has, hampering the ability of lawmakers to adequately address modern public safety concerns.
A Broken Test in Practice
What Bruen does is force courts to answer questions like: “Did 1791 Americans require background checks for ammunition purchases?” or “Did Reconstruction-era jurists impose one-gun-a-month limits?” (referencing two other California regulations that were ruled unconstitutional under Bruen). Modern harms like mass shootings and ghost guns simply have no exact historical analogue, which means that, under Bruen, rational regulations that don’t violate the 2nd Amendment can still be legally doomed.
Experienced federal judges, including Reagan and Clinton appointees, have openly criticized Bruen’s historical inquiry requirement as unworkable, warning that it leads to absurd classifications and inconsistent rulings. The result? Policymakers caught between today’s real-world public safety imperatives and debates over the precise text of colonial ordinances.
Not Entirely Unworkable
Some cases have passed the Bruen test with a little legal creativity. For example, we congratulated the Supreme Court last year for its decision in U.S. v. Rahimi, which preserved critical protections for domestic violence victims and reinforced the legitimacy of red flag-type statutes. A lower court had previously ruled that such laws are unconstitutional because there is no historical precedent.
In our amicus brief, we argued that while laws that disarm individuals subject to domestic violence protection orders did not exist in 1791, other similar regulations did. The Founders themselves prevented certain groups of people from possessing firearms based on perceptions of dangerousness. The Supreme Court agreed with us.
As a result of Rahimi, the high court provided a rare corrective, clarifying that the Bruen test requires only a historical analogue, not a historical twin. The implication? The Bruen test had been interpreted too literally in lower courts. It was a welcome admission, but that fix remains the exception, not the rule. Bruen still heavily ties legitimacy to historical precedent in cases with little real historical comparison possible.
The Bottom Line
What will be the ultimate fate of California’s open carry law? That remains to be seen, but the Bruen test isn’t going anywhere for the foreseeable future. By appending 2nd Amendment doctrine with an added legal hurdle, it’s made it harder for states to pass and defend sensible gun policies that address 21st-century problems. Rather than interpret Constitutional rights for our modern age, courts are forced to become gatekeepers of history, and legislators are compelled to justify contemporary laws by referencing Revolutionary- and Civil War-era statutes.
That’s the true burden of Bruen, and until the test is rethought or recalibrated, gun policy in America will continue to face the same challenges.