For the last 20 years, courts analyzing Second Amendment issues worked a two-step inquiry. The first step looked at whether the govern­ment could justify its regulation by establishing that the law regulated conduct falling beyond the scope of the right as it was originally understood. In the second step, the courts applied a means-end test where they looked at whether the interest protected was a core Second Amendment interest and what level of scrutiny was required. If a core right was burdened by the regulation, the courts applied strict scrutiny and required the government to show that the law is narrowly tailored to achieve a compelling governmental interest.

NYSRPA vs. Bruen Changed the Standard

In New York State Rifle and Pistol Association v. Bruen, the court rewrote the standards:

Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

In other words, when evaluating a Second Amendment claim, the inquiry is just whether the conduct at issue is outside the protection of the Second Amendment based. For example, do red flag laws or magazine limitations violate the Second Amendment based on history. In this regard, it would be difficult in the extreme to show that a magazine ban was outside the history. No regulation from 1791 through 1868 has ever attempted to regulate how much ammunition a person could have on hand, how much they could carry on their person and how it could be stored.

Which States May Be Affected?

Indeed, state statutes like Maryland’s “transportation of a firearm” statute, which simply criminalizes transporting a firearm in a vehicle, clearly burdens a core right. It’s the same with many of the state statutes in New York and New Jersey. In short, a sea change is coming to firearms regulations in these states. Lawsuits are going to be filed challenging these laws, and the Courts of Appeal are going to have to do the right thing.

For this reason, the long-term impact of the ruling in Bruen is going to be felt in both state and federal courts. And those courts are duty-bound to apply the law from the Supreme Court. We now have to see if they will.