In the landmark 2022 case of New York State Rifle & Pistol Association v. Bruen, the Supreme Court struck down New York’s concealed carry law as inconsistent with the Second Amendment. In doing so, the court established a two-step analysis for determining whether one’s rights had been violated. Only several years later circuit courts keep misconstruing this test and confusing what Bruen actually held, perhaps most prominently in cases relating to the commercial sale of firearms. So where have they gone wrong?
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The Second Amendment’s operative clause provides that “the right of the people to keep and bear Arms, shall not be infringed.” In 2008’s District of Columbia v. Heller, the court made clear that this protects an individual right to keep a handgun in one’s home for self-defense. Approximately 14 years later, in Bruen, the Supreme Court established a two-step, text-first, history-second test for analyzing claims that a law violates the Second Amendment.
At the first step, courts ask whether the Second Amendment’s “plain text” covers the conduct regulated by the challenged law. As the court clarified in the case of Wolford v. Lopez, decided this term, this is a simple and straightforward linguistic inquiry. The key terms are “people,” “Arms,” and “keep and bear.” A law implicates the plain text of those terms if it “appl[ies] to the people,” “concern[s] any form of Arms,” and “place[s] any restrictions on either the … possession … or the … carrying … of arms.” In other words, it is a simple question of whether the law in question regulates conduct that falls within the plain-text meaning of the terms used in the Second Amendment. If it does, then the regulation is “presumptively unconstitutional” – i.e., it presumptively infringes the right. In this way the analysis is much like the analysis of First Amendment claims, as laws that regulate speech presumptively abridge the freedom of speech.
If Bruen’s first step is satisfied, the analysis then proceeds to the second step to determine whether the challenged law ultimately infringes the right. To prevail at this step, the government must demonstrate that the challenged regulation “is consistent with the Nation’s historical tradition of firearm regulation.” As the court explained in Wolford, the government can do so by pointing to “widespread, well-known, and widely accepted” historical laws that demonstrate historical limits on the scope of the right. If the government can make such a showing, a court may then conclude that even though a law regulates conduct within the literal terms of the Second Amendment, it does not infringe the right to keep and bear arms. Again, the analysis is similar to that under the First Amendment. As the court explained in 2011’s Brown v. Entertainment Merchants Association, there are certain “well-defined and narrowly limited classes of speech” – such as obscenity, incitement, and fighting words – “the prevention and punishment of which have never been thought to raise any Constitutional problem.” Thus, while speech in these categories is speech, it can be regulated without abridging the freedom of speech.
In the recent case of United States v. Berger, a U.S. Court of Appeals for the 3rd Circuit panel nonetheless reached the conclusion that a challenge to a conviction under the National Firearms Act, which mandates that individuals register with the government and (at the relevant time) pay taxes on certain categories of firearms, failed at “Bruen’s step one” and that this challenge therefore did not even present a Second Amendment case. This conclusion is startling. But it reflects a mode of analysis that is proliferating throughout the federal circuits. In Rocky Mountain Gun Owners v. Polis, the U.S. Court of Appeals for the 10th Circuit held that a challenge to a Colorado ban on firearm purchases by 18-20-year-olds failed at Bruen step one. And in Beckwith v. Frey, the U.S. Court of Appeals for the 1st Circuit similarly rejected at Bruen’s first step a challenge to a Maine law subjecting firearm purchases to a 72-hour cooling-off period.
To reach these erroneous conclusions, all three courts misconstrued a passage in Heller discussing conditions and qualifications on the commercial sale of firearms, among other types of restrictions. Specifically, in the course of holding that District of Columbia laws banning possession of handguns and requiring firearms in the home to be kept locked up or inoperable violated the Second Amendment, the Heller majority stated in dicta that
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
It then described these restrictions as “presumptively lawful regulatory measures.” In Berger, the 3rd Circuit reasoned that the “best way to understand the Court’s presumptive endorsement” of rules such as conditions and qualifications on the commercial sale of arms is “at Bruen’s step one” because “[o]nce a challenger gets to step two, courts must presume regulations unconstitutional.” Rocky Mountain Gun Owners and Beckwith similarly relied on this passage in Heller in determining that the challenges to the commercial regulations at issue in those cases failed at the get-go.
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So where do Heller’s “presumptively lawful regulatory measures” fit into the Bruen analysis? As the circuit courts above held, this might appear to be relevant to step one, given the language in Heller appears to presume that these regulations are unconstitutional. But that seems contrary to the language of Bruen and Wolford. According to Wolford, challenges to laws implicating the plain text of the Second Amendment pass step one if they “place any restrictions” on the possession or carrying of firearms. Heller’s “presumptively lawful regulatory measures” do just that – they include laws flatly banning the possession of firearms by felons and the carrying of firearms in sensitive places.
Does Bruen then contradict Heller? Is there a separate analytical track for analyzing laws on Heller’s “presumptively lawful” list? Or should we just throw up our hands and declare the Supreme Court’s Second Amendment jurisprudence, at least in this regard, as hopelessly incoherent? The answer to these questions is no – Heller’s discussion of presumptively lawful regulatory measures fits comfortably and coherently in the second, historical step of the Bruen analysis.
I begin with the assumption that the Supreme Court’s Second Amendment jurisprudence can and should be read harmoniously and that nothing in Bruen contradicts anything in Heller. That certainly is how the court itself has described its enterprise. Although Bruen led to a sea change in how lower courts analyze Second Amendment claims, on the Supreme Court’s own telling Bruen simply “made the constitutional standard endorsed in Heller more explicit.”
And reading Heller through the lens of Bruen, it is apparent that Heller’s discussion of“presumptively lawful regulatory measures” takes place at the second, historical stage of the analysis. As an initial matter, that discussion occurs after Heller concluded that the Second Amendment, as a matter of plain text, “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” And it takes place in a part of the opinion addressing “limitation[s]” on the scope of the right supported by “historical tradition.” As Justice Amy Coney Barrett explained in her Wolford concurrence, “the answer is and always has been no” to the question “whether courts can smuggle additional limits, drawn from our regulatory tradition, into the plain-text stage of the inquiry.” Surely the court itself was not doing such smuggling in Heller. Indeed, the fact that this passage is part of a discussion of historical limits on the scope of the right indicates that the regulations discussed do implicate the plain text; otherwise, there would be no need to include them in a list of historical limitations on the scope of the right.
This conclusion is also supported by the nature of the laws themselves: “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Laws in the first two categories straightforwardly place restrictions on the possession or carrying of arms by Americans. And restrictions on firearms commerce can as well – as demonstrated by the laws at issue in Berger, Rocky Mountain Gun Owners, and Beckwith.
That leaves one last question: If the laws in Heller’s presumptively lawful categories implicate the plain text, how can they then be said to be presumptively lawful? The best reading of Heller is that the court was identifying categories of conduct akin to fraud, obscenity, and incitement in the First Amendment context that can be regulated despite being covered by the plain text of the right. They are not carveouts from the Bruen methodology or regulations of arms-bearing conduct that somehow escape coverage by the Second Amendment’s plain text. As Justice Brett Kavanaugh put it in his United States v. Rahimi concurrence, they are “categories of traditional exceptions to the right.”
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That was a lot of textual analysis. But what does this all mean as a practical matter? In short, Heller’s discussion of “presumptively lawful regulatory measures” does not provide a “get out of history free” card allowing the federal or state government to avoid meeting its burden under Bruen’s second step. Which is to say, there are not “safe harbors” of people, place, or status that are exempt from normal Second Amendment scrutiny. While Heller identified categories of historical exceptions to the right, it did not define their scope; rather, the court itself stated that “there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.” Until then, it is the government’s burden to demonstrate the historical scope of those exceptions, and to demonstrate that a challenged law fits within that scope. What the government cannot do is point to Heller’s “presumptively lawful” language and end the inquiry there. It is the role of courts to prevent this from continuing to happen.
Recommended Citation: Pete Patterson, How courts keep getting Bruen wrong , SCOTUSblog (Sep. 17, 2026, 10:00 AM), https://www.scotusblog.com/2026/09/how-courts-keep-getting-bruen-wrong/