The Volokh Conspiracy

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Bruen Bids Farewell To The Two-Step Test

The Court abrogated a decade of circuit court precedent, and vitiated mountains of Second Amendment scholarship.


If you have paid attention to Second Amendment litigation over the past decade, you have become familiar with the two-step framework. Under this framework, those challenging gun control laws usually prevail at step one, and lose at step two. The specifics are largely unimportant for the reasons that Judge VanDyke explained. And, over the past decade, there has been a mountain of scholarship that have endorsed the two-step test. During this time, the Supreme Court was asked over and over again to clarify the proper standard under Heller. And time and again, the answer was "cert denied."

Now, New York State Rifle & Pistol v. Bruen has bid farewell to the two-step test. And it did so very, very briskly:

In the years since, the Courts of Appeals have coalesced around a "two-step" framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach. . . .  Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment's text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

I haven't checked Westlaw, but this paragraph probably placed red flags on dozens of circuit court cases. And almost all Second Amendment scholarship that was premised on the two-factor test has now been vitiated.

The lower courts are going to scramble, and try to find language in the majority, and in Justice Kavanaugh's concurrence, to stick to their old ways. But it will be much tougher.