Bruen and Rahimi explained, the history test every gun law now faces

For fourteen years after Heller, federal judges tested gun laws the way a nervous man tests the bathwater: stick in a toe, ask whether it feels reasonable, and pull back if anything looked too hot. They called it "means-end scrutiny." You called it "whatever the judge thinks is sensible." If the state's goal sounded good, public safety, crime reduction, the law usually survived, no matter how much of your right it ate along the way.

In June of 2022 the Supreme Court said that is not how we treat a constitutional right. Judges don't get to decide whether a right is worth the trouble. They get to ask what the text and the country's history say. That's the Bruen test, and two years later Rahimi told us how far it goes. Every gun law in the country now has to face it, so it helps to know exactly what it asks.

The old test, and why it was a problem

After District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010) established that the Second Amendment protects an individual right that binds the states, the lower courts needed a method for deciding challenges to specific laws. Most of the federal courts of appeals settled on a two-step approach. Step one asked whether the law burdened conduct within the scope of the Second Amendment, often by looking at history. Step two, if it did, applied a level of "scrutiny," usually intermediate scrutiny, which weighs the government's interest against the burden on the individual.

Look at what that second step does. It asks a judge to decide whether the government's reasons for restricting your right are strong enough. A government can always produce reasons. Public safety is always a strong interest. So the test was tilted before the argument started, and in practice the courts of appeals upheld nearly every gun law they reviewed. It's a bit like a baseball game where the home team's manager also calls balls and strikes. The home team can still lose. It just doesn't lose often.

The justices in Heller had warned about this. Justice Scalia wrote that the Court knew of no other enumerated right whose core protection had been subjected to a freestanding "interest-balancing" approach. The lower courts adopted one anyway. Bruen corrected that.

The case: New York's "proper cause" rule

New York required anyone who wanted to carry a handgun outside the home to get a license, and the licensing law, whose roots go back to the early twentieth century, said that to get an unrestricted license an applicant had to show "proper cause." New York courts had read that to require a special need for self-protection that was distinguishable from the general community's. Living in a rough neighborhood wasn't enough. Being a law-abiding citizen wasn't enough. You had to prove you were in more danger than your neighbors, and a licensing officer decided whether you had.

Two upstate New Yorkers, Brandon Koch and Robert Nash, applied for unrestricted carry licenses and were turned down for lacking proper cause. They were each given restricted licenses, limited to things like hunting and target practice or travel to work. They sued together with the New York State Rifle & Pistol Association. The case was New York State Rifle & Pistol Association, Inc. v. Bruen, with Kevin Bruen as the state's police superintendent. The Court decided it on June 23, 2022, by a vote of 6-3.

What the majority held

Justice Clarence Thomas wrote the opinion for the Court. The holding has two parts, and the two parts make up the test.

1. Start with the text. When the plain text of the Second Amendment covers an individual's conduct, the Constitution presumptively protects that conduct. Carrying a handgun in public for self-defense is "bearing" arms. Done.
2. Then the burden shifts to the government. To justify the regulation, the government must show that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court say the conduct falls outside the amendment's protection.

Notice what disappeared. There is no step in which a judge weighs the government's interest. The history is the justification. If the government can't show a tradition that supports its law, the law fails, however good its aim.

Applied to New York, the answer was easy for the majority. The state could not point to a historical tradition of limiting public carry to those who showed a special need. It cited English statutes and colonial and early American laws, but the Court found them either too old, too late, too narrow, or not analogous. The proper-cause requirement was struck down.

"A historical analogue, not a historical twin"

The obvious objection is that the founders had no way of knowing about modern problems. There was no internet in 1791, no mass shootings in schools, no semi-automatic pistols. If the government must find a 1791 statute that matches the modern one exactly, almost nothing could ever be regulated.

The majority saw that coming. Thomas wrote that the test doesn't require a "historical twin." The government need only point to a well-established and representative historical analogue, a regulation that is relevantly similar. The key questions in the analogical reasoning are how the old and new laws burden the right and why they do so: does each impose a comparable burden on armed self-defense, and is each comparably justified? The Court gave an example of the method in the "sensitive places" discussion. Historical laws banning firearms in legislative assemblies, polling places and courthouses show a tradition, and the Court treated it as settled that such places can be protected, so a modern ordinance that covers a similar place can draw on the analogy.

Here's a hypothetical, labelled as one, to show the difference. Suppose a city bans carrying a gun inside its municipal courthouse. The government points to old laws against bringing arms into courts and legislatures. That's a close analogue: same kind of place, same kind of burden, same reason. Now suppose the city bans carrying a gun on every public street. The government points to the same courthouse laws. That analogy fails. A rule covering the whole public square is a far heavier burden than a rule covering a single building, and the old laws don't justify it. The test isn't mechanical, but it isn't a blank check either.

Justice Brett Kavanaugh, joined by the Chief Justice, wrote a concurrence making a point worth reading closely. Bruen, he stressed, does not prohibit states from requiring licenses that apply objective criteria, like background checks, fingerprinting, mental-health records checks and a firearms safety course, so long as the state issues the license to those who meet the criteria. That is the "shall-issue" model, and it leaves a great deal of room for regulation. What Bruen ended was licensing that left it to an officer's discretion to decide whether you "needed" your right. You'll find the four systems laid out side by side in four ways a state can regulate carrying a gun, side by side.

Justices Alito and Barrett also wrote concurrences. Justice Breyer dissented, joined by Justices Sotomayor and Kagan.

Rahimi: the test meets a hard case

Two years later the Court faced the question that critics said Bruen could not answer: does the test prevent the government from disarming someone who is dangerous?

Zackey Rahimi was subject to a restraining order issued by a Texas court in 2020 after a hearing in which he had notice and took part. The court found that he represented a credible threat to the physical safety of his former girlfriend, and the order barred him from possessing a firearm. A federal statute, 18 U.S.C. § 922(g)(8), makes it a crime to possess a firearm while subject to such an order. Rahimi was later charged under that law after he was involved in several shootings. He argued the statute violated the Second Amendment. The Fifth Circuit agreed, reading Bruen strictly and finding no matching tradition in the history.

The Supreme Court reversed. United States v. Rahimi, decided June 21, 2024, came out 8-1, with Chief Justice Roberts writing for the Court and Justice Thomas dissenting. The majority held that when an individual has been found by a court to pose a credible threat to the physical safety of another, the government may temporarily disarm him consistent with the Second Amendment. The analogues were "surety" laws, which allowed a person who showed reasonable cause to fear violence from another to ask a magistrate to require that person to post a bond, and "going armed" laws, which punished carrying weapons to terrorize the public. Together they showed a principle: the government can disarm those who present a clear threat of violence to others.

Two things to notice about the opinion. First, the Court looked for a principle in the history, not a duplicate. Roberts wrote that the Second Amendment permits more than just those regulations identical to ones that could be found in 1791, and that the way some lower courts had applied Bruen was too rigid. Second, the case was brought as a facial challenge, which means Rahimi had to show the law was unconstitutional in every application. He could not, because it plainly applied to him. The Court did not decide every other application of the statute.

There were many concurrences, from Justices Sotomayor, Gorsuch, Kavanaugh, Barrett and Jackson, each writing about method. Their disagreement, which I'll come to now, is a debate about how a court ought to use history.

The strongest objection: judges are bad historians

Here's the best case against the whole approach. Judges are trained in law, not history. Asking them to sift through English statutes and colonial records invites cherry-picking, with the judge finding the history that fits the result he wants. Different judges can look at the same record and find different traditions. A test that depends on historical research will produce unpredictable results across the country, and lawyers' briefs will become competing history seminars.

That worry isn't foolish. Justice Breyer made a version of it in his Bruen dissent, and Justice Jackson's concurrence in Rahimi pointed to confusion among the lower courts about how to apply the test. Reading the post-Bruen decisions from different circuits, you can find rulings that disagree about which laws count as analogues.

Here's the response, in numbered points.

1. The old test wasn't free of judgment either. Interest-balancing asks judges to weigh public safety against liberty. That's not a neutral exercise. It's a policy decision, made by unelected people with no accountability, in the one area where the Constitution has already made the choice. History at least gives the judge something outside himself to check.
2. Courts use history in other areas. The Seventh Amendment's jury-trial right and the Confrontation Clause are interpreted with reference to founding-era practice. Judges have been doing this for a long time.
3. The test is bounded by evidence. Lawyers cite the record. Opponents can respond. A wrong reading of history can be shown to be wrong in a way a wrong reading of "reasonableness" cannot.
4. Rahimi shows the test can say yes. Critics said Bruen would doom all restrictions. The 8-1 vote in Rahimi shows it doesn't. The government won, and the Court found a principle in the history that supports temporarily disarming dangerous people.

There is also a conservative point to be made on the other side, one that I think deserves honest weight: if originalism is to be credible, it has to be applied the same way when the result is uncomfortable. A conservative who likes Bruen and dislikes Rahimi has to say why the same method gives different answers. The honest answer is that the method gave a consistent result: a law-abiding citizen's right to carry cannot be conditioned on proving special need, and a person a court has found to be a credible threat can be disarmed for a time. Those two statements do not conflict.

What it means for the next law your legislature writes

Every legislature that writes a gun bill is now writing it with a court in mind. The question the court will ask is not "does this save lives?" but "where is the tradition?" A bill that fits a recognized tradition, such as restrictions in sensitive places, bars on possession by people found dangerous after a hearing, or requirements for licensing with objective criteria, is in good shape. A bill that has no analogue is vulnerable, whatever its sponsors intended.

For voters this is a healthy discipline. It forces lawmakers to build a record and keeps courts from improvising. For gun owners it means the weakest laws, those that rest on a bureaucrat's discretion, are the ones most likely to fall. The place to learn the whole line of cases is Heller, McDonald and Bruen Explain How Judges Now Read the Second Amendment, and the first step in that line is Why Heller got it right and the 'militia only' reading falls apart. If you want to know how courts treat a federal agency that tries to rewrite a gun statute by redefining a word, the answer lies in Garland v. Cargill and why an agency cannot rewrite a law by redefining a word.

The bottom line

• The test is text, then history. If the Second Amendment's text covers the conduct, the government must show the law fits the Nation's tradition of firearm regulation. No more weighing of "interests."
• The government needs an analogue, not a twin. A law can be new and still pass, if it is relevantly similar to old ones in how and why it burdens the right.
• Rahimi was 8-1 and kept disarming the dangerous on the table. A person a court has found to be a credible threat to another can be disarmed for a time. That fits a long tradition and does not reduce anyone else's right.
• The objection about judges as historians is real. It is a reason for care, not a reason to go back to a test that always favored the government.
• Ask your legislator the Bruen question. When a new gun bill comes up, ask: what's the historical tradition this fits? If there's no answer, that's your cue to speak up.