Bruen Bids Farewell To The Two-Step Test

Must read

Report: Sinema Wants Changes To $740 Billion Tax Hike/Global Warming Bill, Says She’s ‘Taking Her Time’

Senator Kyrsten Sinema is playing coy on whether or not she’ll support the Democrats’ so-called ‘Inflation Reduction Act’...

What Did We Do About Inflation Before Economists?

By John Tamny for RealClearMarkets In their new book America In Perspective, David Sokol and Adam Brandon...

Biden Press Sec. Falsely Claims Supreme Court Ruling on Abortion Was ‘Unconstitutional’ – Prompting Mockery

White House press secretary Karine Jean-Pierre raised eyebrows by declaring the Supreme Court decision overturning Roe v. Wade...

Manchin-Schumer Energy Deal Proves the Power of The Swamp

By Robert Bryce for RealClearEnergy Never doubt the power of The Swamp. That’s the apparent lesson...

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.

More articles

Latest article

Report: Sinema Wants Changes To $740 Billion Tax Hike/Global Warming Bill, Says She’s ‘Taking Her Time’

Senator Kyrsten Sinema is playing coy on whether or not she’ll support the Democrats’ so-called ‘Inflation Reduction Act’...

What Did We Do About Inflation Before Economists?

By John Tamny for RealClearMarkets In their new book America In Perspective, David Sokol and Adam Brandon...

Biden Press Sec. Falsely Claims Supreme Court Ruling on Abortion Was ‘Unconstitutional’ – Prompting Mockery

White House press secretary Karine Jean-Pierre raised eyebrows by declaring the Supreme Court decision overturning Roe v. Wade...

Manchin-Schumer Energy Deal Proves the Power of The Swamp

By Robert Bryce for RealClearEnergy Never doubt the power of The Swamp. That’s the apparent lesson...

Brits advised to spend less time in the shower

Brits should reduce their showering time by at least 60 seconds to avoid water shortages, The Sunday Times reported, citing sources at companies dealing...