The New Bruen Flow Chart
When the Supreme Court adopted the new history-and-tradition test in Bruen, the Court said it was simplifying from the court of appeals’ existing two-part framework, which Justice Thomas described as “one step too many.” Although cutting one of two steps might imply the new test would be a single step, no one took that suggestion seriously. Lower courts immediately began describing and applying Bruen as a different two-step test: first ask whether the plain text covers the relevant conduct, and if the answer is yes, then ask whether the government has shown the challenged law is consistent with historical tradition.
Yet in just the few short years since Bruen’s issuance in 2022, the test has already become much more convoluted: it now takes a complex flow chart to track just some of the relevant inquiries, sub-inquiries, and sub-sub-inquiries the test demands. That complexity, and the concomitant discretion tucked hidden away at each stage, seriously undermines Bruen’s insistence that its new test would be “more legitimate, and more administrable” than the one it replaced. Although some circuit judges want to imagine these complexities are manufactured by enemies of the Second Amendment, the reality is that judges of all stripes (even those striking down laws) and scholars of all persuasions recognize the remarkable uncertainty attending application of the test.
Here’s where, to the best I can understand it, Bruen’s test stands today.
I. Step One: Does The Plain Text Protect What the Challenger Wants To Do? The burden is on the claimant, with three subsidiary sub-questions:
A. Is the conduct “keep[ing]” or “bear[ing]” a weapon?
B. Is the claimant among “the people”?
C. Is the weapon an “arm”?
If the answer to each sub-question is Yes, move to Step Two. If the answer is No, end the inquiry and reject the challenge.
*The Court in Wolford suggested step one is an easy hurdle for challengers to clear; it focuses on the “literal text” and is informed by history, if at all, only in the sense of understanding the semantic meaning of the separate words at the time of ratification.
II. Step Two: Is the Challenged Law Consistent With Historical Tradition? Now the burden has shifted to the government, with three subsidiary sub-questions (newly announced, it’s worth noting, in Wolford):
A. How many historical jurisdictions adopted the proposed analogues?
B. Were those proposed analogues historically “well-accepted”?
C. Are those proposed analogues actually “relevantly similar” to the challenged law? Sub-question II.C. entails a series of sub-sub questions:
1. Does the challenged law implicate “unprecedented societal concerns or dramatic technological changes”? If Yes, apply a “more nuanced approach” when using analogical reasoning. If No, apply ordinary (?) analogical reasoning.
2. Ask about the comparability of the “why”: Do the proposed analogues share a comparable justification with the challenged law?
3. Ask about the comparability of the “how:” Do the proposed analogues impose a comparable burden as the challenged law? Sub-sub-question II.C.3. entails a series of sub-sub-sub questions. As the 7th Circuit recently described it in Barnett v. Raoul: “The ‘how’ component of the Bruen inquiry in turn encompasses at least four considerations:”
i. “how the [challenged] Act operates mechanically,”
ii. “how much it burdens the right of armed self-defense,”
iii. “the restriction’s duration,” and
iv. “the penalty associated with violating it.”
In addition to all that, the Court has expressly declined to determine whether laws from the period surrounding 1791 or 1868 are the most relevant, notwithstanding the vastly different historical records at each time period.
Using Gemini, I asked for a flow chart of what I had written out as a description of the framework. After an unhealthy amount of time using my (well below average) Microsoft Paint skills to clumsily edit the image, it came out with something I think approximates what it is Bruen now directs courts to do.
This chart shows just the questions judges have to ask. The Court has offered some—though astonishingly little and often contradictory—guidance on how to go about answering them, especially at step two. For example, a principal question the test directs courts to ask is how many jurisdictions adopted the proffered analogues. Yet, besides suggesting that a law in a single jurisdiction is insufficient, the Court did not say what would suffice (and despite just two sentences earlier expressly saying that “[a] party defending against a Second Amendment claim may rely on a single analogue or a group of analogues” (emphasis added)).
Another thing the chart cannot capture is the level-of-generality question that lurks behind the framing of answers to almost every question. As Reva Siegel, Amanda Tyler, and many others have written, the history-and-tradition test makes choosing a level of generality often outcome determinative.
Is the conduct the challenger wants to engage in “carrying a gun in public” or “carrying a gun onto private property without securing permission”? Nothing in the framework says how to choose. (The Wolford majority chose the former; the dissent the latter. The Rahimi majority, it bears noting, had operated at a high level.) Does a historical anti-poaching law regulating guns on private party stand for a principle that lawmakers can legislate default rules about guns on private property to address the harms they pose or only a principle about the power to prevent the specific harms from trespassing hunters? (The Wolford majority chose the latter; the dissent the former.) The Wolford majority’s asymmetric approach to abstraction level—broadly characterizing the right while narrowly charactering regulation—has been a recurrent problem in Second Amendment cases and one an amicus brief several of us filed in Rahimi addressed head on.
In answering the two framing questions of Bruen’s test, I count more than a dozen subsidiary questions that judges must address in every case, sometimes for each particular claim in a case, as when a court undertakes this inquiry for each of numerous spaces deemed sensitive locations. Some specific types of challenges will necessitate more and more complicated questions (e.g., what types of evidence can be used determine dangerousness if that’s the relevant principle for disarming categories of people, what types of lawful purposes count for determining whether a weapon is in common use by law-abiding citizens). From where I sit, it’s hard to disagree with the charge Justice Jackson leveled in her Wolford dissent: “With this decision, the Court has now manipulated Bruen into a free-for-all that lets the Judiciary thwart the will of legislatures by privileging access to firearms above all else.”