The Supreme Court has introduced a two-step test for courts to evaluate Second Amendment challenges. This test, outlined in New York State Rifle & Pistol Ass’n v. Bruen, is designed to clarify how the Second Amendment is enforced.
Step one: Decide whether “the Second Amendment’s plain text covers an individual’s conduct.” If so, courts should move on to step two: Decide whether the regulation of that conduct “is consistent with the Nation’s historical tradition of firearm regulation.”
A recent decision reshapes the process
The court’s decision in Wolford v. Lopez emphasizes that the first step is a narrow textual inquiry. Courts should ask who is claiming the right, whether weapons are involved, and whether the law restricts keeping and bearing such weapons.
The Bruen decision mandates that courts apply the original meaning of the Second Amendment, using historical context to interpret its plain text. This means understanding terms like “arms” as they were defined when the Bill of Rights was ratified.
In District of Columbia v. Heller, the Supreme Court referenced 18th-century dictionaries to define “arms” as “weapons of offence, or armour of defence.” While the weapons themselves have evolved, the term’s meaning remains consistent.
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Lower courts misinterpret historical context
Some lower courts have argued that if historical context defines “arms,” then they can also consider historical evidence to limit the right to certain types of weapons.
This interpretation places the “common use” inquiry in the wrong step. Weapons not in common use are still considered “arms” under the Second Amendment. The government’s ability to regulate them falls under the second step, where it must prove historical justification.
Wolford clarified that historical materials are irrelevant in the first step. Rather, “the question is simply whether a challenged law falls within the Second Amendment’s plain text.” The case involved a challenge to a Hawaii law requiring permit-holders to get property owner permission to carry firearms on private property open to the public.
Wolford rejected Hawaii’s attempt to introduce “historical materials and precedents” into the “plain text” analysis. “[T]hey are out of place at Bruen’s first step,” the court pointed out. Rather, “the question is simply whether a challenged law falls within the Second Amendment’s plain text.” Even though the law didn’t outright forbid bearing arms, it made obtaining consent more difficult, thus restricting the right.
Wolford’s guidance is already influencing lower courts. In Association of New Jersey Rifle & Pistol Clubs v. Attorney General of New Jersey, the 3rd Circuit ruled that New Jersey’s ban on semi-automatic rifles and high-capacity magazines violated the Second Amendment. It correctly placed the “common use” inquiry in the second step.
Similarly, in Elite Precision Customs LLC v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, the 5th Circuit struck down a federal ban on interstate handgun sales. It rejected the argument that the ban was a minor infringement, holding that claimants only need to show the law restricts keeping and bearing arms.
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Despite Wolford’s clarity, some litigants continue to push lower courts to relocate step-two questions to step one. They rely on Heller’s dicta about “presumptively lawful regulatory measures,” such as prohibiting felons or the mentally ill from possessing firearms, or restricting firearms in sensitive places like schools.
In United States v. Berger, the 3rd Circuit misinterpreted this language, suggesting that these measures are exempt from the presumption of unconstitutionality in step one. This reasoning conflicts with Wolford, which emphasizes the government’s burden to prove historical justification in step two.
Wolford has refocused the first step on textual analysis, but confusion persists around “presumptively lawful regulatory measures.” Until the Supreme Court addresses this issue directly, lower courts may continue to misinterpret the burden of proof in Second Amendment cases.
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They require claimants to prove that regulations on these activities meaningfully limit their ability to exercise constitutional rights, not just burden conduct covered by the amendment’s text. This shifts questions about the extent of the burden from step two, where they would compare modern restrictions to historical traditions, to step one, where courts assess whether the regulation sufficiently burdens the right to trigger further scrutiny.
Wolford reinforces that step one focuses solely on whether a regulation falls within the Second Amendment’s plain text. Historical analysis, including the “common use” of weapons, belongs in step two. This clarification ensures courts do not prematurely dismiss challenges to regulations on firearms sales or accessories by conflating textual coverage with historical justification.
