Case Study 2 — New York State Rifle & Pistol Association v. Bruen (2022)
In 2020, two New York residents — Brandon Koch and Robert Nash — applied to their county licensing officer for unrestricted concealed-carry handgun licenses. New York's Sullivan Act, in force since 1911, required applicants for unrestricted licenses to demonstrate "proper cause" — a special need for self-defense beyond what an ordinary citizen might claim. Koch and Nash gave generic self-defense reasons: living in rural areas, traveling for work, the absence of nearby police response. The licensing officer denied unrestricted licenses, granting only restricted licenses for hunting and target shooting.
Six other states maintained similar "may issue" regimes (California, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island), under which applicants had to demonstrate something beyond ordinary self-defense interest to obtain a concealed-carry permit. The other 43 states were "shall issue" or constitutional-carry jurisdictions, where any qualifying applicant received a permit and many residents could carry without a permit at all.
The Supreme Court agreed to hear New York State Rifle & Pistol Association v. Bruen and decide whether New York's "proper cause" requirement was constitutional under the Second Amendment. The decision, issued in June 2022 by a 6-3 majority, did two things at once. It struck down New York's regime. And it announced a new doctrinal framework for evaluating all firearms regulations.
The framework before Bruen
After Heller (2008) recognized an individual Second Amendment right and McDonald (2010) incorporated it against the states, lower federal courts adopted a two-step framework: first, ask whether the challenged law burdened protected conduct; if yes, apply intermediate scrutiny to evaluate whether the regulation served a substantial government interest. In practice through 2008-2022, the framework sustained most challenged regulations — assault-weapons bans, magazine bans, "may issue" regimes, sensitive-places restrictions, age-based requirements. Gun-rights advocates argued the deferential application had practically nullified Heller's individual-rights holding.
The Bruen test
Justice Thomas's majority opinion in Bruen abandoned the two-step framework. It announced what is now the operative test:
"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. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"
The test has two stages, but they are different from the previous two-step framework:
- Plain text — Does the Second Amendment's text, as understood at ratification, cover the regulated conduct? If yes, presumption of protection.
- History and tradition — Has the government identified historical regulations sufficiently analogous to the challenged regulation to demonstrate that the regulation falls within the Second Amendment's tradition? If yes, the regulation is sustained. If no, struck down.
Notice what is missing: scrutiny of the government's interest. Bruen eliminates the means-ends balancing of the previous framework. Either there is a sufficiently analogous historical regulation, or there isn't. Modern policy interests do not factor into the analysis except to the extent the historical record reflects them.
The application to New York
Applying that test, the Court struck down New York's "proper cause" requirement. The Court reviewed historical American firearm-licensing regimes and found that requiring an individualized showing of special need before issuing a concealed-carry permit had no sufficiently analogous tradition in early American firearm regulation. (Some early American jurisdictions had restricted concealed carry while permitting open carry; some had required surety bonds for those who threatened breach of peace; but none had imposed a general "proper cause" pre-screen on otherwise qualifying applicants.) New York's regime, the Court held, fell outside the historical tradition.
The opinion was careful to limit its reach. Justice Thomas noted that the holding did not address (a) regulation of firearms in "sensitive places" like schools and government buildings, (b) qualifications for permits unrelated to special-need showings, or (c) restrictions on commercial sale or possession by certain categories of persons (felons, the mentally ill). Concurring opinions by Justice Kavanaugh (joined by Chief Justice Roberts) and Justice Alito emphasized this narrowness, suggesting that "shall issue" licensing regimes with reasonable qualifications would survive Bruen.
The dissent, written by Justice Breyer (joined by Justices Sotomayor and Kagan), argued that the new test was unworkable in practice, that the historical record was sparser and more contested than the majority allowed, and that the elimination of means-ends balancing left lower courts without the tools to evaluate the modern public-safety interests at stake in firearms regulation.
The aftermath
Lower federal courts have grappled with the new test in unsettled ways.
Sustained under Bruen: Most "shall issue" licensing regimes; restrictions on possession by convicted felons (in most circuits); restrictions on those with serious mental illness; federal restrictions on commercial sales by unlicensed dealers. United States v. Rahimi (2024) addressed a related question about domestic-violence restraining orders.
Struck down or under serious challenge: Parts of New York's revised "sensitive places" list and its social-media disclosure requirement; various California regulations in waves; federal bump-stock regulations (Cargill v. Garland, on agency-interpretation grounds).
Unsettled: State assault-weapons bans, large-capacity magazine bans, and private-property carry restrictions remain in active litigation with circuit splits as of 2026.
The largest practical effect has been in "may issue" jurisdictions, all of which have been required to convert to "shall issue" regimes.
The empirical question
What have the Heller and Bruen doctrinal expansions of the individual right meant for firearm violence in the United States?
This is a question on which the empirical evidence is genuinely mixed and contested.
The high-quality state-level natural-experiment literature on concealed-carry liberalization (the shift from "may issue" to "shall issue") is substantial. John Lott's earlier work argued such shifts produced reductions in violent crime; subsequent reanalyses (Donohue and others) found the reductions were either smaller, absent, or actually associated with modest increases in violent crime depending on the time period and statistical specification. The National Academies' 2018 review found insufficient evidence to draw firm causal conclusions either way; the question turns on highly technical methodological choices about how to control for time trends, regional differences, and concurrent policy changes.
The shift from Heller through Bruen coincided with broader social and economic changes that affected violent crime — the early 2010s decline, the 2020-2021 spike during pandemic disruption, and the 2022-2024 decline. Disentangling the doctrinal contribution to those trends from other contributors is genuinely difficult.
The 2022 federal data: approximately 48,000 firearm-related deaths in the United States, roughly 58% suicide and 38% homicide. The per-capita rate remains substantially higher than peer democracies. Whether Bruen's test produces meaningful changes in that rate over the next decade is an open empirical question; the early evidence is too thin to support strong conclusions in either direction.
The doctrinal arguments, steel-manned
The conservative argument
Defenders of Bruen — including most originalist scholars and the Bruen majority itself — make the following case:
The Second Amendment's text, in its original public meaning, protects an individual right to bear arms for self-defense. Heller established this; McDonald incorporated it. The previous two-step framework had nullified that holding in practice, by allowing intermediate-scrutiny means-ends balancing to sustain almost any regulation a legislature wanted to enact. That is not how individual rights are normally analyzed in American constitutional doctrine — strict scrutiny, not intermediate scrutiny, is the standard for fundamental rights.
The history-and-tradition test does not produce arbitrary results. It binds judges to the actual constitutional text and the actual historical record. Where the historical record shows that the Founding generation tolerated a category of regulation, that category survives; where the historical record shows that the Founders rejected such regulation (and the prevalence of armed self-defense among the citizenry was central to their political theory), the regulation falls.
The result is that gun rights are protected the way other fundamental rights are protected — by a clear test that does not vary with judicial sympathy for a given regulation. A judge who follows the Bruen test cannot smuggle policy preferences into the analysis, because the test asks the historical question, not the policy question.
The empirical question — whether more concealed carry produces more gun violence — is irrelevant to the constitutional analysis. The Constitution protects rights even when their exercise has costs. A First Amendment that protected speech only when the speech did not produce social harm would be no First Amendment at all. The same applies to the Second.
The liberal argument
Critics of Bruen — including the dissenters and most scholars writing in the constitutional-tradition register from the political left — make the following case:
The "history and tradition" test sounds neutral but operates with substantial discretion. The historical record from the Founding era is genuinely incomplete, and the historical record from the post-Founding period (including Reconstruction) is more complicated than the majority's analysis allowed. Different judges, surveying the same historical archive, reach different conclusions about whether a given regulation has a sufficiently analogous tradition.
The level-of-generality problem is severe. Almost any modern regulation can be matched to some historical analogue if the analogue is described at a high enough level of generality (any restriction on firearm possession by some category of persons), and almost no modern regulation can be matched to a historical analogue if the analogue must be described at a low level of generality (a regulation operating on the same technological context). The choice of generality is not provided by the test; it is supplied by the judge.
Post-Bruen lower-court decisions have shown wide variance, with circuit splits on assault-weapons bans, magazine restrictions, and "sensitive places" lists. That variance is not what a rule-bound test produces. It is what a discretionary test produces.
The elimination of means-ends balancing is a methodological choice, not a textual command. The Second Amendment's text says nothing about how to evaluate modern public-safety regulations. Reading the text to require historical analogy and to forbid means-ends balancing imports a specific interpretive philosophy into a clause that does not specify one.
The empirical question matters because the costs of the doctrinal choice are real. The United States has substantially higher firearm-death rates than peer democracies. A doctrinal framework that disables means-ends review of regulations addressing that gap has real costs, and pretending those costs are constitutionally invisible is itself a substantive choice.
Why both arguments matter
A reader of this case study should be able to articulate both arguments in their best form, because both are held by serious constitutional scholars and serious judges. The conservative argument is not "we want more guns." The liberal argument is not "we want fewer guns." The arguments are about how to interpret the Second Amendment — about the role of text, history, and modern policy in constitutional analysis.
The same disagreement plays out across other doctrinal areas. Originalist methodology in religion (Bremerton) produced one set of results; living-constitutionalist methodology produced different results. Originalist methodology in unenumerated rights (Dobbs) reached one outcome; living-constitutionalist methodology reached a different outcome. Brandenburg (Case Study 1) did not turn on this disagreement — both originalists and living constitutionalists tend to defend Brandenburg — but on most contemporary contested constitutional questions, the methodological disagreement is the disagreement.
The pairing of Brandenburg and Bruen is deliberate. Both reflect the Court's commitment to robust individual-rights protection. Brandenburg's commitment cuts against majorities that would prefer to suppress disfavored speech; Bruen's commitment cuts against majorities that would prefer to regulate firearms more aggressively. In both cases, the Court protected a doctrinal right against contemporary political preferences. In both cases, the protection runs across the political map: the Klan rally and the civil-rights speaker; the rural homeowner concerned about response time and the urban homeowner who wishes neither would be armed.
A serious civil-libertarian assesses each doctrine on its merits, not on whose ox it gores in the contemporary political moment. That is the discipline this chapter is asking you to develop.