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Trouble’s Bruen: The Lower Courts Respond


New York State Rifle & Pistol Ass’n v. Bruen revolutionized the understanding of how Second Amendment cases are to be adjudicated. Rejecting the tiered-scrutiny analysis around which the lower courts had coalesced since the 2008 Heller decision, the Court instructed courts to look to history and tradition after it was determined that state or federal regulations limited activities that fell within the protections afforded by the Second Amendment’s text. Justice Thomas’s opinion, however, left open significant questions about how the history-and-tradition method is to operate in practice. The Court recently held oral arguments in United States v. Rahimi, in which the justices will have an opportunity to provide answers to some of those questions, should it choose to do so. In many ways, Rahimi is a good vehicle for the Court to fill in the lacunae created by Bruen, which the lower courts have struggled with in the last two years. Using Rahimi as our point of departure, we will summarize the case, highlight what we think are the significant open questions the Court should address, and then look at how the courts of appeals have answered those questions. While our approach here is largely descriptive, we do include some opinions about what the correct answers to those open questions are.