Bruen’s Historical Tradition Test: Steps, Eras, and Rahimi

Under the Bruen historical tradition test, a court evaluating a firearm regulation asks two questions in sequence: does the plain text of the Second Amendment cover the conduct being regulated, and if so, has the government shown that the regulation is consistent with the nation’s historical tradition of firearm regulation? The framework comes from New York State Rifle & Pistol Association, Inc. v. Bruen (2022) and was refined in United States v. Rahimi (2024), which clarified that courts look for shared historical principles rather than statute-for-statute matches.

Step One: Does the Text Cover the Conduct?

The analysis starts with the words of the Second Amendment. If a person is carrying a handgun for self-defense in public, the text protects that conduct and the inquiry moves forward. If the regulated activity or object falls outside the amendment’s scope, the challenge ends and the regulation stands.

Three phrases do the work at this stage. “The people” refers broadly to members of the political community, tracking the Court’s reading of the same phrase elsewhere in the Constitution.¹ “Keep and bear” protects both possession at home and carry in public. And “arms” is not frozen at the founding; the right reaches all bearable instruments of self-defense, including those that did not exist in 1791.²

If the text covers the conduct, the Constitution presumptively protects it.³ The government cannot cut the analysis short with policy arguments about public safety or social necessity. Those arguments belonged to the balancing framework Bruen discarded, which had allowed intermediate or strict scrutiny to save regulations lacking any historical pedigree.⁴ Legislative findings, empirical studies, and expert testimony about a regulation’s effectiveness no longer decide the constitutional question.

The Common-Use Standard for Weapons Bans

When a regulation targets a specific type of weapon rather than a specific act, courts apply a related test from Heller: whether the arm is “in common use” for lawful purposes. The Second Amendment protects weapons “typically possessed by law-abiding citizens for lawful purposes” and does not protect weapons that are both “dangerous and unusual.”¹ Both elements must be present for a ban to survive. A weapon that is dangerous but owned by millions is not “unusual” and stays protected.

This standard looks at present ownership patterns, not historical ones. Widespread modern ownership qualifies a firearm as “in common use” even if the technology did not exist at the founding. The standard has driven much of the litigation over semiautomatic rifles and large-capacity magazines.

Step Two: The Government’s Historical Burden

Once the text covers the conduct, the burden flips. The government must show the regulation “is consistent with the Nation’s historical tradition of firearm regulation.”³ Fail that burden and the law is unconstitutional. There is no fallback to public-interest balancing.

Practically, the government has to identify actual laws from American history that imposed comparable restrictions for comparable reasons. If the founding generation could have restricted something and chose not to, that silence carries weight. Courts will not accept the argument that the founders simply never thought of the problem.

The “How and Why” Comparison

The government does not need an identical statute from the 1790s. Both Bruen and Rahimi instruct courts to look for a “relevantly similar” analogue, not a “dead ringer” or “historical twin.”⁵ The old law and the new law need to share underlying principles.

Courts run the comparison along two dimensions the Supreme Court calls “how” and “why.” The “how” asks whether the modern and historical laws impose a comparable burden on armed self-defense. A total ban is a heavier burden than a permit requirement, so a historical permit rule would not justify a modern outright prohibition. The “why” asks whether the two laws address a similar justification. If a modern law targets people who pose a demonstrated threat, the court looks for historical laws that addressed the same concern.²

Both dimensions have to line up. A historical law that hit the right concern through a wildly different mechanism, or that used the same mechanism for an unrelated purpose, will not satisfy the test. That prevents the government from picking a superficially similar statute that actually operated on different logic.

Outliers Don’t Make a Tradition

A handful of isolated regulations cannot establish the kind of broad tradition the test demands. The Bruen majority said it would “not give disproportionate weight to a single state statute and a pair of state-court decisions,” and refused to rely on “a handful of temporary territorial laws that were enacted nearly a century after the Second Amendment’s adoption, governed less than 1% of the American population, and also contradict the overwhelming weight of other, more contemporaneous historical evidence.”⁶ Laws that existed on paper but were rarely enforced fare worse still; the Court treated a “barren record of enforcement” as another reason to discount a claimed analogue.

This is where many government arguments fall apart. Three colonial-era laws from small jurisdictions or one outlier territorial statute does not build a national tradition. Courts expect evidence of a widespread, consistently applied regulatory approach across multiple jurisdictions.

Which Historical Eras Carry Weight

Not all history counts equally. The Court has fixed two primary reference points and drawn limits around what falls outside them.

The Founding Era, Around 1791

Evidence from around 1791, when the Bill of Rights was ratified, carries the most authority. Laws, commentary, and legislative debates from that period reflect the understanding of the people who adopted the Second Amendment.³ Colonial-era statutes and the first decades of the republic form the core of most tradition arguments.

The Reconstruction Era, Around 1868

Courts also consider the period around ratification of the Fourteenth Amendment in 1868, which extended the Bill of Rights against state governments. Scholars continue to debate whether 1791 or 1868 should control when the two suggest different conclusions, but both count as legitimate reference points.⁷ Because more statutes were enacted in the mid-to-late 1800s than at the founding, governments defending regulations often lean on this era.

English Common Law and Twentieth-Century Statutes

English common law before the founding can provide background context, but American courts prioritize American traditions. English statutes the colonists rejected or modified do not bind constitutional interpretation.

At the other end of the timeline, the Court has warned against giving “postenactment history more weight than it can rightly bear.” Post-ratification evidence can confirm what the text already suggests, but “to the extent later history contradicts what the text says, the text controls.”⁶ Twentieth-century laws carry little to no weight because they are too far removed from the constitutional source to reflect original public understanding.

Categories the Court Has Called Presumptively Lawful

The historical tradition test does not put every firearm regulation in doubt. The Court has flagged categories of “presumptively lawful regulatory measures” that survive scrutiny. Heller said “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”¹ The Court called the list non-exhaustive.

Bruen reaffirmed those carve-outs and expanded on the sensitive-places idea. Schools and government buildings are the clearest examples; historical restrictions on carrying weapons in legislative assemblies, courthouses, and polling places go back to the colonial era. The outer edges of the doctrine remain contested. Post-Bruen litigation has split over whether parks, public transit, houses of worship, and private businesses open to the public qualify. The strongest historical support attaches to places where other fundamental rights are exercised, such as voting, petitioning, and accessing the courts.

How Rahimi Refined the Test

Two years after Bruen, the Court answered the framework’s most pressing practical question: how strictly should judges demand historical matches? In Rahimi, an 8–1 majority upheld the federal law barring firearm possession by people subject to domestic violence restraining orders.² The Fifth Circuit had struck down the law by reading Bruen to require a near-identical historical statute. The Supreme Court said that reading was wrong.

The majority stressed that the Second Amendment “permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.”² Courts look for consistency with the “principles that underpin our regulatory tradition,” not a statute-by-statute match, “applying faithfully the balance struck by the founding generation to modern circumstances.”³

Surety and Going-Armed Laws

The historical laws that saved the federal domestic violence provision were surety laws and “going armed” laws from the founding era. Surety laws let local magistrates require someone suspected of future violence to post a bond; failure to post meant jail, and violence after posting meant forfeiture. They applied broadly to various threats, including spousal abuse and firearm misuse.²

Taken together, the Court said, those laws confirmed a simple principle: “When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” The federal statute at issue required a court finding of credible threat to an intimate partner’s safety before the firearm bar attached. That judicial determination mirrored the founding-era magistrate’s role, making the modern law “relevantly similar” in both how and why it burdened the right.²

What Rahimi Left Open

Rahimi resolved the question for people judicially found to pose a credible threat of physical violence, but it left major questions unanswered. The Court explicitly declined to address whether the federal felon-in-possession statute survives Bruen review. Lower courts have split: at least one federal appellate court has struck down the felon ban as applied to nonviolent offenders, while multiple others have upheld it. Similar uncertainty surrounds laws disarming unlawful drug users, noncitizens, and people under 21, all of which have produced conflicting decisions since Bruen.

How Lower Courts Have Applied the Framework

The results have been uneven. Federal appellate courts have generally upheld bans on assault-style weapons and large-capacity magazines, finding support in traditions restricting unusually dangerous weapons. Age-based restrictions have gone both ways, with at least one circuit striking down a law effectively barring 18-to-20-year-olds from carrying firearms in public. The sensitive-places doctrine has been pulled in opposite directions, with some courts sustaining broad state designations and others rejecting specific ones as unsupported by history.

The deepest practical problem is consistency. Because the test depends on how each judge reads a contested historical record, similar regulations can produce opposite outcomes. Two judges reading the same founding-era statutes may disagree about whether they represent an isolated outlier or a widespread tradition. Rahimi pushed courts toward a more flexible, principles-based reading, but it did not eliminate the underlying issue: reasonable people can disagree about what history teaches, and the framework gives them no tiebreaker other than more history.

1
Justia Law. District of Columbia v Heller, 554 US 570 (2008)
2
Supreme Court of the United States. United States v Rahimi, 602 US __ (2024)
3
Constitution Annotated. Rahimi and Applying the Second Amendment Bruen Standard
4
Legal Information Institute. The Bruen Decision and Concealed-Carry Licenses
5
Legal Information Institute. Rahimi and Applying the Second Amendment Bruen Standard
6
Supreme Court of the United States. New York State Rifle and Pistol Association Inc v Bruen, 597 US 1 (2022)
7
Harvard Journal of Law and Public Policy. Attention Originalists: The Second Amendment Was Adopted in 1791, Not 1868