The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen was, by any measure, one of the most consequential Second Amendment rulings since Heller in 2008. By requiring courts to evaluate the constitutionality of gun regulations against the “historical tradition of firearm regulation” at the time of the founding, it effectively invalidated the two-part interest-balancing test that lower courts had applied for fourteen years.
What it did not do was write a rulebook. And the absence of a rulebook has produced something approaching chaos in the federal district courts.
The Post-Bruen Patchwork
In the two years since the ruling, federal district and circuit courts have applied the historical-tradition test to hundreds of regulations — concealed carry permit requirements, restrictions on felons and domestic abusers, magazine capacity limits, assault weapons bans — with dramatically inconsistent results. The Fifth Circuit has reached different conclusions from the Ninth Circuit on questions that, on their face, appear identical.
Constitutional law scholars across the political spectrum agree that this divergence is unsustainable. “You essentially have a different Second Amendment depending on which circuit you’re in,” says Professor Elaine Voss of the University of Virginia School of Law. “That’s not a constitutional framework. That’s a patchwork that the Court is going to have to resolve.”
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