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SCOTUS Landmark 2nd Amendment Decision

New York State Rifle & Pistol Association Inc. v. Bruen | June 23, 2022

While the Supreme Court’s Bruen decision lifted most state restrictions on the public carrying of weapons, it also did something much more significant. It changed the way in which courts must judge Second Amendment challenges to gun regulations and restrictions.

In Bruen, a New York State law criminalizing possessing a firearm without a license inside or outside a home was challenged as unconstitutional. To carry a firearm outside the home an individual could apply for a permit but only if a person could prove “proper use” existed, which included a special need for self-protection greater than that for the general community. Two individuals applied for a permit but were denied because proper cause was not met.

The Supreme Court and Bruen ruled that the 2nd Amendment’s plain “text” covers an individual’s right to carry arms, including guaranteeing a right to possess and carry weapons in case of a confrontation. However, the Court went even further in its decision.

Before the Bruen decision, a majority of federal courts used a two-step framework for weighing the constitutionality of gun regulations. If historical evidence showed that the regulated conduct was outside the Second Amendment’s original scope, then the conduct or activity was not protected. But if text and history were unclear, then courts applied what is known as intermediate scrutiny to the regulation. The government, to prevail, had to show that the regulation was “substantially related to the achievement of an important governmental interest.” This two-step process often resulted in gun regulations being upheld.

In the Bruen decision, the Court rejected the two-step framework as “one step too many.” Instead, going forward, in order for the government to prevail on a challenged gun regulation, it must prove that the challenged regulation is consistent with the nation’s historical tradition of firearm regulations. In making this historical inquiry, courts must now use reasoning by analogy to determine whether a historical regulation is a proper analogue for a distinctly modern firearm regulation.

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