What Is the Bruen Test for Second Amendment Cases?

The Bruen test is the two-step framework the Supreme Court adopted in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), for deciding Second Amendment cases. A court first asks whether the Second Amendment’s plain text covers the conduct the law restricts. If it does, the government must then show that the restriction is consistent with the nation’s historical tradition of firearm regulation.¹ There is no third step for weighing public safety benefits or applying intermediate scrutiny. That kind of balancing, which federal appellate courts had used for over a decade, is what Bruen swept away.²

The case itself involved New York’s concealed carry law, which required applicants to show “proper cause” — a special self-defense need beyond that of the general public — before receiving an unrestricted permit. The Court struck the scheme down and, in the process, told every lower court how to evaluate Second Amendment challenges going forward.¹

Step One: Does the Plain Text Cover the Conduct?

The first question is whether what the person is doing falls within the Second Amendment’s text: “the right of the people to keep and bear Arms, shall not be infringed.” Courts break that language into its components.³

“The people” means members of the national community generally, not only those serving in an organized militia. “Arms” reaches beyond eighteenth-century firearms to modern weapons in common use for lawful purposes, though weapons that are both dangerous and unusual may fall outside protection. “Keep” refers to possession; “bear” refers to carrying a firearm for confrontation or self-defense. Together, those words protect keeping a firearm at home and carrying one in public.

At this stage the analysis asks only whether the text applies. It does not ask whether the regulation makes sense as policy. Someone carrying a commonly owned handgun in public for self-defense clears this threshold without difficulty. Harder questions arise with unusual weapons, accessories, or categories of people who may not count as part of “the people.”⁴

If the text covers the conduct, the Constitution presumptively protects it and the burden shifts to the government.

Step Two: Historical Tradition of Firearm Regulation

Once step one is satisfied, the government must justify the restriction by showing that it fits the nation’s historical tradition of regulating firearms. Nothing else will do. Statistical evidence about crime, expert testimony about public safety, and legislative findings about the harms a law addresses cannot substitute for historical proof.⁵

This is the sharpest departure from the pre-Bruen approach. Under the earlier framework, a court could uphold a gun law by finding it substantially related to an important government interest. Bruen ruled that method off-limits for Second Amendment cases. Courts cannot weigh social costs and benefits. They can only ask whether the type of restriction has roots in American legal history.²

The government’s lawyers have to produce evidence of historical statutes, common law traditions, or court rulings that support the modern law. If the historical record they build is thin or unpersuasive, the law falls. Courts have made clear they will not do the government’s research for it.

How Close Does the Historical Match Have to Be?

A modern regulation does not have to be identical to a founding-era law. The Bruen opinion acknowledged that exact matches will often be impossible given changes in technology and society. Instead, courts look for a “relevantly similar” historical analogue, measured along two dimensions: how the regulation burdens the right to armed self-defense, and why the burden was imposed.¹

The “how” examines the type and severity of the burden — outright ban, location restriction, licensing condition. The “why” examines the justification — preventing violence in specific places, keeping weapons from dangerous individuals, protecting particular activities. A modern law that addresses a similar problem through a comparable mechanism has a strong chance of surviving. When either the burden or the justification is fundamentally different from anything in the historical record, the analogy fails.

Two years after Bruen, the Court sharpened this point in United States v. Rahimi (2024). Some lower courts had been reading Bruen to require something close to an identical historical twin: if no founding-era law looked just like the modern one, the modern law failed. The Rahimi majority rejected that reading. Chief Justice Roberts wrote that a challenged regulation need not be a “dead ringer” or a “historical twin.” Courts must ask instead whether the regulation is consistent with the principles underlying the historical tradition, applying the balance struck by the founding generation to modern circumstances.⁶

Rahimi itself upheld 18 U.S.C. § 922(g)(8), which bars firearm possession by someone subject to a domestic violence restraining order that includes a finding of credible threat to an intimate partner’s physical safety.⁷ No founding-era law looked exactly like it. But the Court concluded, 8–1, that the nation’s tradition of disarming individuals who pose a threat to others supplied a sufficient historical principle.⁸

For genuinely new circumstances — advanced weaponry, mass transit systems, technologies that did not exist in the eighteenth century — courts are expected to apply analogical reasoning with some flexibility rather than demanding a precise match. The goal is to identify the principle behind a historical regulation and ask whether it extends to the modern context.

Which Historical Period Controls

The Bruen majority declined to definitively choose between two candidate time periods: 1791, when the Second Amendment was ratified, and 1868, when the Fourteenth Amendment made the right enforceable against states. For the public carry question in front of it, the Court found the original understanding essentially the same at both points, so the choice was unnecessary.²

The choice matters because the two eras produced very different regulatory environments. Firearm restrictions were relatively sparse in the founding period. By Reconstruction, many states had enacted far more restrictive laws. Governments defending modern regulations generally prefer 1868 for its richer set of analogues; challengers prefer 1791.

The Bruen opinion emphasized that constitutional rights are “enshrined with the scope they were understood to have when the people adopted them,” and cautioned that late-nineteenth-century evidence “cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.” Lower courts have read those signals to mean that 1791 is the primary reference point, with 1868 evidence useful mainly to confirm rather than contradict the founding-era understanding.

Who Bears the Burden

The burden allocation is one of the test’s most consequential features. At step one, the challenger must show that the conduct the law restricts falls within the Second Amendment’s plain text. For common activities like possessing a handgun or carrying one in public, this is usually straightforward.

Once the challenger clears that threshold, the burden shifts entirely to the government. It must affirmatively demonstrate that the regulation fits within the historical tradition, producing specific historical statutes and explaining how they satisfy the “how” and “why” comparison.³

If the government’s historical showing is inadequate, the law is struck down. This is where many modern gun laws prove vulnerable, not necessarily because they are poor policy, but because the attorneys defending them may lack the historical expertise or resources to build the required record.

Sensitive Places Are Treated Differently

One important boundary sits outside the ordinary two-step analysis. In District of Columbia v. Heller, the Court called laws forbidding firearms in “sensitive places such as schools and government buildings” presumptively lawful.⁹ Bruen reaffirmed that principle but warned against stretching it so far that it covers every place where people gather.

Since 2022, federal judges have generally upheld firearm restrictions in locations with clear historical parallels, including schools and colleges, government buildings and courthouses, polling places, and certain healthcare facilities. The harder cases involve parks, mass transit, houses of worship, and private businesses open to the public. Courts have split on those, and the Supreme Court has not yet drawn a definitive map.

What the Test Has Changed So Far

Bruen’s most immediate real-world effect was forcing several states to dismantle discretionary concealed carry permitting. Before the decision, New York, New Jersey, California, Hawaii, Maryland, and Massachusetts all operated some version of a “may-issue” regime, where officials could deny a permit even to an applicant who met every objective requirement. After Bruen, an applicant who satisfies the objective legal requirements must receive a permit. Some states tightened other rules in response — expanding prohibited locations, imposing new training mandates, raising fees — but the discretionary gatekeeping function is gone. Many of those replacement laws are themselves being challenged under Bruen.

Beyond concealed carry, several categories of laws are working through the courts under the new framework.

Assault Weapons and Magazine Restrictions

Federal courts remain divided on whether bans on semiautomatic rifles and large-capacity magazines survive Bruen. The Fourth Circuit upheld Maryland’s ban on certain semiautomatic rifles, comparing them to historically restricted “dangerous and unusual” weapons. Other courts have split on magazine restrictions, with some concluding that magazines holding more than ten rounds are not “arms” protected by the text at all and others finding them protected but upholding bans on historical grounds. In June 2025, the Supreme Court declined to review one such case, though Justice Kavanaugh said in a statement that he expected the Court to take up the question within the next term or two.¹⁰

Felon-in-Possession Laws

The federal ban under 18 U.S.C. § 922(g)(1) prohibits firearm possession by anyone convicted of a crime punishable by more than one year in prison, whether or not the underlying offense involved violence.⁷ Challengers with nonviolent priors argue that founding-era disarmament laws targeted only individuals who had demonstrated dangerousness, not felons categorically. The Supreme Court has received a wave of petitions on the question. As of spring 2026, several as-applied challenges are pending.

Drug Users and Private Property

The Court has agreed to hear United States v. Hemani, testing whether a blanket firearm prohibition on unlawful users of controlled substances is consistent with historical tradition, or whether an individualized finding of dangerousness is required — a question Rahimi left open. In Wolford v. Lopez, the Court is considering whether Hawaii can presumptively prohibit carrying handguns on private property open to the public unless the owner has affirmatively consented.

Why Application Has Been Uneven

Four years into the Bruen era, trial and appellate judges have found the historical-tradition test genuinely difficult to apply, and several have said so on the record. The test requires lawyers and judges to perform original historical research into eighteenth- and nineteenth-century law, a task most were not trained for. One federal judge described the demand as “original historical research into somewhat obscure statutory and common law authority from the eighteenth century by attorneys with no background or expertise in such research.” Another noted that the Supreme Court in Bruen had the benefit of eighty amicus briefs from PhD historians, while a typical appellate panel has twenty minutes of oral argument and a handful of law review articles.

The results have been inconsistent. Different courts examining the same type of regulation reach opposite conclusions depending on which historical sources the government’s lawyers found and how the judge read them. One federal judge stated the problem directly: the same regulation could be upheld in one courthouse and struck down in another, with both courts faithfully applying Bruen, simply because one government legal team was better at historical research.

Some judges have also questioned the premise that modern constitutional questions can be resolved by historical analogies alone, warning that keyword searches through colonial-era statutes can treat the past as a differently-dressed version of the present without accounting for deep changes in political structure and language. Rahimi‘s emphasis on principles over precise historical matches suggests the justices are aware the framework needs room to breathe, and further clarification is likely as the pending felon-in-possession, drug-user, and private-property cases work their way through.¹¹

1
Supreme Court of the United States. New York State Rifle and Pistol Association, Inc. v. Bruen
2
Congress.gov. Constitution Annotated – Amdt2.6 Bruen and Concealed-Carry Licenses
3
Congress.gov. Constitution Annotated – Second Amendment
4
Justia U.S. Supreme Court Center. New York State Rifle and Pistol Association, Inc. v. Bruen
5
Legal Information Institute. The Bruen Decision and Concealed-Carry Licenses
6
Legal Information Institute. United States v. Rahimi
7
Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts
8
Supreme Court of the United States. United States v. Rahimi
9
Justia U.S. Supreme Court Center. District of Columbia v. Heller
10
Congressional Research Service. Supreme Court Declines Review of Decision Upholding Assault Weapons Ban
11
Legal Information Institute. Rahimi and Applying the Second Amendment Bruen Standard