Since the Supreme Court in 2008 recognized an individual right to bear arms in the Second Amendment, many federal courts had engaged in a cost-benefit analysis of gun laws—and indeed upheld most existing gun regulations by accepting the government’s stated interest in preventing gun deaths. But Thomas, who had long complained that this approach turned the Second Amendment into a “second-class right,” used Bruen to quash it in favor of an originalist one. Under the history-and-tradition test, courts can only look to whether the regulation in question had a “historical analogue” in the late eighteenth and early nineteenth centuries. If one couldn’t be found, then the restriction apparently ran counter to the original public meaning of the Second Amendment as early Americans would have understood it.
However reasonable this test sounded in theory—and it apparently sounded reasonable enough for five other justices to join Thomas’s opinion—it has been something entirely else in practice. Wielding the history-and-tradition test, federal judges have invalidated a wide range of gun restrictions in the year since Bruen was handed down, including bans on gun possession for people with felony convictions and for people with substance-abuse issues. Some have been overturned on appeal; others, like the Rahimi case, have not.
One issue with the Bruen test is the level of generality that courts must use when looking for historical analogues. Thomas, writing in Bruen, noted that judges need not find a “historical twin” or a “dead ringer for historical precursors” in the founding era for an existing law to survive. He noted, by way of example, that while states did not restrict gun possession in what are now called “sensitive places” like courthouses and polling places, “we are also aware of no disputes regarding the lawfulness of such prohibitions.” But beyond that, he offered few guideposts, thereby giving lower court judges broad discretion to read it as narrowly or broadly as they wished.
This problem is not limited to the domestic violence context. What counts as “historical evidence” or a “historical analogue” is open to interpretation. A federal judge in New Jersey, for example, struck down a ban on carrying firearms in casinos even though there were no casinos in the Thirteen Colonies and therefore no historical analogues to be found. She instead noted that French Louisiana had a casino in 1753, there was no evidence that it had banned firearms, and therefore neither could New Jersey.