{"id":412,"date":"2026-07-21T13:40:24","date_gmt":"2026-07-21T13:40:24","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=412"},"modified":"2026-07-21T13:40:24","modified_gmt":"2026-07-21T13:40:24","slug":"heller-and-bruen-are-here-to-stay","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=412","title":{"rendered":"Heller and Bruen are here to stay"},"content":{"rendered":"
\n

The October 2025 Supreme Court Term was a good one for the Second Amendment. In United States v. Hemani<\/em>, the court held by a 9-0 vote that it violates the Second Amendment to disarm a person solely because of occasional marijuana use. And in Wolford v. Lopez<\/em>, the court refused to countenance a novel and creative way of circumventing the Second Amendment by holding unconstitutional Hawaii\u2019s presumptive ban on carrying firearms in establishments open to the public.<\/p>\n

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The court\u2019s Second Amendment decisions also further established and fleshed out the contours of reigning doctrine. After over 200 years of giving relatively little attention to the Second Amendment, the court in 2008\u2019s District of Columbia v. Heller<\/em>, 2010\u2019s McDonald v. City of Chicago<\/em>, and 2022\u2019s New York State Rifle & Pistol Ass\u2019n, Inc. v. Bruen<\/em>, held, respectively, that the amendment protects an individual right, that the right applies to the states, and that alleged violations of the right are to be assessed by a text-and-history approach. Operating within this governing paradigm, the past term\u2019s Second Amendment decisions made clear that Bruen\u2018<\/em>s text and history approach is firmly entrenched and demonstrated how that approach is aimed at ensuring fidelity to the original understanding of the Second Amendment right.<\/p>\n

***<\/p>\n

The Second Amendment provides, \u201cA well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.\u201d In Heller<\/em>, the court confirmed that the Second Amendment protects an individual right held by Americans generally, not one confined to the militia. And in Bruen<\/em>, the court established a two-step text-first, history-second test for determining whether a law infringes the Second Amendment right. Step 1 asks whether a challenged regulation restricts conduct covered by the plain text of the Second Amendment. If so, Step 2 then shifts the burden to the government to \u201cdemonstrate that the regulation is consistent with this Nation\u2019s historical tradition of firearm regulation.\u201d If the government cannot carry its burden at step two, the challenger prevails.<\/p>\n

The Heller-Bruen <\/em>regime is here to stay. None of the justices in the past term\u2019s cases questioned Heller<\/em>\u2019s basic proposition that the Second Amendment protects an individual right. And the decisions give no reason to believe that a substantial number of justices have misgivings about the Bruen<\/em> approach. While Justice Ketanji Brown Jackson stated in a concurring opinion in Hemani <\/em>that she \u201ccontinue[s] to believe that we veered off course in Bruen<\/em>,\u201d only Justice Sonia Sotomayor joined her opinion.<\/p>\n

The 2025-26 term\u2019s decisions also illustrate that, for the most part, the Bruen <\/em>test is unremarkable as a matter of constitutional doctrine and that in its rejection of interest-balancing (that is, evaluating whether a law is sufficiently tailored to a modern policy goal) it is aimed at ensuring fidelity to the original meaning of the Second Amendment right.<\/p>\n

First, Wolford <\/em>confirms that Bruen<\/em>\u2019s first step is a relatively simple one that seeks only to determine whether the case is, in fact, a Second Amendment case. In essence, if a challenged law places any restrictions on the possession or carrying of weapons by Americans, the law falls within the plain text of the Second Amendment, and the government therefore must justify it historically. As Justice Amy Coney Barrett explained in concurrence, the court confirmed that there is no warrant for courts to \u201csmuggle additional limits, drawn from our regulatory tradition, into the plain-text stage of the inquiry.\u201d To do so would be to flip the burden of proof to challengers and to rid the government of the burden to justify laws that regulate arms-bearing conduct.<\/p>\n

While Jackson criticized the court\u2019s application of Bruen<\/em>\u2019s textual step, it is in keeping with how the court treats other constitutional rights. In National Republican Senatorial Committee v. Federal Election Commission<\/em>, for example, also decided at the end of the term, the court explained that its First Amendment \u201cprecedents start with the basic precept that when \u2018the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.\u2019\u201d Similarly, under Bruen<\/em>, when the government restricts guns, the government bears the burden of proving the constitutionality of its actions.<\/p>\n

Second, Wolford <\/em>reiterates that the Second Amendment applies in the same way to both the states and to the federal government. Bruen <\/em>left open the question of what the baseline date is for establishing this shared application \u2013 1791, when the Second Amendment was adopted, or 1868, when the Second Amendment was made applicable to the states by adoption of the 14th Amendment. But Bruen <\/em>left no opening for arguing that the date could be different for the states and the federal government, stating that \u201cwe have made clear that individual rights enumerated in the Bill of Rights and made applicable to the States through the Fourteenth Amendment have the same scope as against the Federal Government.\u201d Wolford <\/em>reiterated that it is settled that \u201cthe Second Amendment embodies a uniform national standard,\u201d not one that varies between the states and the federal government, much less one that varies between individual states. Therefore, \u201cthe spirit of Aloha\u201d could not somehow alter the scope of the Second Amendment in Hawaii. This is in keeping with how the court treats incorporated provisions of the Bill of Rights generally. As Wolford <\/em>explains, \u201cnearly all rights protected by the First, Fourth, Fifth, Sixth, and Eighth Amendments \u2026 apply equally to the Federal Government and the States.\u201d<\/p>\n

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Third, Wolford <\/em>explains that when analyzing a law historically, courts must consider whether any historical analogs offered by the government were \u201cwidespread, well-known, and widely accepted.\u201d This makes sense, as one would expect that an established exception to a fundamental right would be well-attested in the historical record. It also defuses criticisms about the difficulty of performing the historical analysis required by Bruen<\/em>, because the search is not for obscure materials but rather for the historical mainstream. And it once again accords with how the court treats other constitutional rights. As the court explained in 2010\u2019s United States v. Stevens<\/em>, the First Amendment, like the Second, allows regulation of certain conduct within its textual scope when that conduct falls within \u201chistoric and traditional categories long familiar to the bar.\u201d In the First Amendment context, those categories include things like obscenity, defamation, fraud, and incitement. While the Second Amendment has its own categories of regulable conduct, the underlying analytical principles are the same.<\/p>\n

Fourth, Wolford <\/em>furthers the emphasis on the historical mainstream by rejecting reliance on provisions of the Black Codes that former slave states adopted \u201cthat aimed to perpetuate the subjugation of blacks.\u201d As I have explained at greater length elsewhere, discriminatory provisions such as these should never be used to justify Second Amendment restrictions. If the restrictions embodied by such provisions truly were \u201cwidespread, well-known, and widely accepted,\u201d they would be reflected in numerous sources not tainted by invidious discrimination. If anything, then, if a state relies on such laws, it is a signal that the regulation it seeks to justify falls outside <\/em>of mainstream historical practices.<\/p>\n

Fifth, Wolford <\/em>and Hemani <\/em>both hold firm in opposing interest-balancing in Second Amendment cases. To be sure, the court in Wolford <\/em>acknowledged that application of Bruen<\/em>\u2019s historical analysis requires an \u201cexercise of judgment\u201d that is \u201cnot mechanical\u201d and that requires courts to consider whether proffered historical analogs are \u201csufficiently similar\u201d to a challenged regulation \u201cto support the provision\u2019s constitutionality.\u201d But this does not mean that the Bruen <\/em>test is devolving into an interest-balancing approach.<\/p>\n

Under interest-balancing tests like intermediate scrutiny, a court analyzes whether a law is sufficiently tailored to some modern policy aim. In the years between Heller <\/em>and Bruen<\/em>, this was the approach generally adopted by the lower courts and, as Wolford <\/em>explains, those courts \u201crejected nearly all Second Amendment claims.\u201d It is not difficult to understand why. In almost every Second Amendment case, the government will claim that a challenged law advances an interest in public safety. And in almost every case, there will be empirical uncertainty about whether that is in fact the case. In such circumstances, courts tend to defer to the judgment of the legislature. This approach is not aimed at measuring a law against the original understanding of the Second Amendment, and it woefully underprotects the right in practice.<\/p>\n

Under Bruen<\/em>, by contrast, the question is not whether a law is sufficiently tailored to some modern policy aim, but rather whether a law is sufficiently similar to regulations historically understood to be consistent with the Second Amendment. Unlike an interest-balancing approach, this approach is aimed at assessing fidelity with the original understanding of the Second Amendment right, and it does so by analyzing types of materials and engaging in modes of reasoning that are familiar to judges in our constitutional system. As the Supreme Court\u2019s decisions indicate, there is no need for testifying \u201cexperts\u201d to tell courts what the Second Amendment means. Analyzing and comparing various legal sources are commonplace judicial tasks.<\/p>\n

***<\/p>\n

The Second Amendment is an increasingly active part of the court\u2019s docket. Second Amendment cases no longer are epochal, groundbreaking jurisprudential events that come along once a decade (or less). Going forward, we can expect more terms like this one, with the court deciding one or more Second Amendment cases as it continues to define the contours of the right under the Heller-Bruen <\/em>regime.\u00a0 <\/p>\n

Disclosure: <\/strong>Pete Patterson was counsel on amicus briefs supporting the Second Amendment challengers in <\/em>Hemani and <\/em>Wolford.<\/em>\u00a0<\/p>\n

Read more When it comes to getting the Supreme Court\u2019s attention, does one state have an edge?<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

The October 2025 Supreme Court Term was a good one for the Second Amendment. In United States v. Hemani, the court held by a 9-0 vote that it violates the Second Amendment to disarm a person solely because of occasional marijuana use. And in Wolford v. Lopez, the court refused to countenance a novel and […]<\/p>\n","protected":false},"author":1,"featured_media":411,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,18],"tags":[],"class_list":["post-412","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-commentary","category-scotus-outside-opinions"],"yoast_head":"\nHeller and Bruen are here to stay - American Service Review<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/americanservicereview.com\/?p=412\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Heller and Bruen are here to stay - American Service Review\" \/>\n<meta property=\"og:description\" content=\"The October 2025 Supreme Court Term was a good one for the Second Amendment. 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