When the U.S. Supreme Court decided New York State Rifle & Pistol\u00a0Association v. Bruen, it provided the lower courts with a detailed roadmap to\u00a0ensure proper application of the text-first and history-second methodology\u00a0employed by the Court in the Second Amendment context since District of\u00a0Columbia v. Heller. Yet notwithstanding the Court\u2019s explicit directions, many\u00a0lower courts fail to follow Bruen and either take a wrong turn or implement their\u00a0own shortcuts when deciding constitutional challenges to modern-day firearm\u00a0restrictions. Some of these cases arose as challenges to gun control laws enacted\u00a0pre-Bruen; other cases are challenges to laws enacted after Bruen and in seeming\u00a0defiance of that decision. This article seeks to clarify some of the confusion that\u00a0has arisen post-Bruen, and to explain how the Supreme Court\u2019s clear reasoning\u00a0and instructions in Bruen\u2014and Heller before it\u2014provide direct and simple guidance that lower courts are bound to follow in cases implicating the constitutional\u00a0right to bear arms.<\/p>\n
At the outset, the Bruen decision marks a dramatic move by the Supreme\u00a0Court to put Second Amendment jurisprudence back on the right track.\u00a0Following the Heller decision in 2008, which embraced an originalist text-first,\u00a0history-second interpretive approach, many lower courts declined to follow\u00a0Heller\u2019s originalist methodology. Instead, those courts imported interest balancing tests, such as intermediate scrutiny, from the context of the First\u00a0Amendment. By balancing the government\u2019s asserted interest in \u201cpublic\u00a0safety\u201d against the degree that a law infringes on the right to keep and bear\u00a0arms, it was possible to guarantee that in virtually every case the government\u00a0would win, and fundamental constitutional rights would be eroded. That happened even though Heller expressly rejected interest-balancing.<\/p>\n
Fourteen years later, Bruen made it clear beyond any doubt that interest balancing cannot be used to decide Second Amendment cases. It instructed that the plain\u00a0text of the Second Amendment must be faithfully followed, and that the government bears the burden to justify any modern regulations, if it can, using historical\u00a0analogue laws. In applying Bruen, the Court in United States v. Rahimi again\u00a0rejected interest-balancing as an acceptable Second Amendment framework for\u00a0the lower courts to apply.<\/p>\n