The Bruen Test: Text, History and Tradition

The standard

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.

New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 24 (2022)

Before Bruen, most lower courts used a two-step test that weighed the government’s interest against the burden on the right. Bruen rejected that means-end balancing. Instead, courts now ask whether the law fits the historical tradition, using historical “analogues.”

Proper cause and may-issue permits

New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.

Bruen, 597 U.S. at 71

At the time, the Court counted 43 “shall-issue” states, where a general desire for self-defense was enough for a permit, and six states plus D.C. with “may-issue” laws that required a special need. In footnote 9, it said nothing in its analysis should be read to suggest the shall-issue regimes were unconstitutional, while noting that “any permitting scheme can be put toward abusive ends.” After Bruen, the may-issue jurisdictions changed their laws.

How Rahimi refined the test

In United States v. Rahimi, 602 U.S. 680, 692 (2024), the Court explained that “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” In other words, a modern law need not be a “historical twin.” It must fit the principles behind historical laws. Lower courts continue to apply the test to age limits, prohibited-person laws, sensitive places and bans on particular arms.

This guide explains the law in general and reports what courts have held. It is not legal advice. Firearm laws change often and differ by state and city, so check the current law where you are.

Researching Bruen test in your state

First, find the statute or rule that governs Bruen test where you live. State law controls most of these questions, so the answer can change from one state to the next. Next, read recent decisions from the appellate courts in your state. They show how judges apply the law today. Also, check the local rules of the court that would hear your case. Our state procedures guide links to each state’s official rules. In addition, the Research Center explains how to confirm a source is still good law.

Sources and further reading

Official sources used on this page:

• supremecourt.gov
• supremecourt.gov

Related reading on Lawtopolis:

• Second Amendment Supreme Court Cases: Heller to Wolford
• Concealed Carry Permits and Permitless Carry
• Who Cannot Own a Gun: Prohibited Persons Under 18 U.S.C. § 922(g)