A recent shooting involving an elementary school in Bend, Oregon, has spread across social media and news channels, reigniting familiar debates over gun regulation. As devastating as it is, the headline is hardly shocking when it comes to the United States. The U.S. has the largest gun ownership rate at 120.5 guns owned per 100 civilians, as well as the highest gun homicide rate among its wealthy contemporaries like Australia and Canada. Part of the problem lies in court decisions like New York State Rifle & Pistol Association v. Bruen (2022), which made it difficult for courts to judge modern gun laws by requiring them to find similar laws from the nation’s past. This has led to confusion among lower courts. If courts are to have clearer tools for evaluating gun laws, which could help reduce gun violence in the U.S., then the Supreme Court must revisit Bruen and adopt a broader, clearly outlined approach that doesn’t purely rely on history.
Before Bruen, courts took history into account but also used means-end scrutiny tests, which weighed gun laws against other factors, such as public safety. These tests allowed courts to consider public safety and the social context in which laws were passed or challenged. With Bruen, this approach was thrown out. The Court ruled 6-3 that gun laws must instead fit within the nation’s historical tradition of firearm regulation. With this new approach, a two-step test was created. First, courts must determine whether the Second Amendment’s plain text covers the conduct in question. If it does, the government must then show that the law is consistent with firearm tradition in the U.S., usually by pointing to a similar law from the past. Justice Stephen Breyer, writing for the three dissenting justices, argued that lower courts may not have the means to carry out proper historical analyses and that Bruen could also allow for judges to wield history in their favor by excluding or including certain cases. His concern has proved right: lower courts have since reached conflicting conclusions.
The confusion is clear in the path that led to United States v. Rahimi (2024) and the lower-court rulings that preceded it. For example, a federal judge in Texas stated that prohibiting people under domestic violence protective orders from having guns violated their Second Amendment rights. Because he found few historical laws dealing with domestic violence, he concluded the ban could not be invoked. A federal appeals court reached the same conclusion in United States v. Rahimi in 2023, but the Supreme Court overturned that ruling in 2024 in an 8-1 decision, concluding that there is historical precedent for disarming people who posed a risk to the public. Proponents of the Bruen standard point to this ruling as evidence that the Court has corrected the confusion, but that is too simplistic. Different interpretations of historical evidence lead to conflicting ideas about what can be considered constitutional or not. If the Bruen standard were clear and easily applied, the Supreme Court would not have to keep explaining what it means or how to use it.
Earlier cases like District of Columbia v. Heller (2008) established that citizens have the right to keep a gun at home for self-defense, but the Bruen decision went further, stating that they also have a right to carry a handgun in public for self-defense. Supporters of Bruen argue that the old balancing tests gave judges too much room to let their own views on guns decide cases, for example by giving public safety too much weight. That is a fair point of concern, but Bruen hasn’t truly solved it. Instead of removing bias, it simply shifts it to how judges interpret history, leaving room for them to misread the record or cherry-pick evidence. If judges are basing their findings on their interpretations of history, then hasn’t the Bruen standard failed to accomplish what was promised?
As a first step towards bettering gun policy, the Supreme Court could make room for better regulation. The majority opinion has cited laws banning guns in “sensitive places,” such as schools and government buildings, as examples of restrictions that remain constitutional. However, they could expand the definition of sensitive places to include not just schools and government buildings, but other areas where it is in the public’s interest to not allow firearms, such as public transport and parks. By updating the definition to fit modern spaces, the Court could help judges reach more nuanced decisions and reduce the confusion among lower courts. This is just one example of how we could work within Bruen to address public safety. Even if this came to pass, there ultimately needs to be more work done, whether that is through dissolving Bruen and starting from scratch or allowing for means-end-scrutiny tests to be a factor again.
In terms of gun violence, the United States is an outlier among democracies. With so many lives being lost to guns, we can no longer accept lax regulation. The Bruen standard was meant to protect citizens’ rights, but it has led to confusion and uncertainty among lower courts. Rahimi offered some clarity, but the episode merely exposes the issue of relying too heavily on history to judge modern laws. Regulation doesn’t have to infringe on the rights granted in the Second Amendment, and it doesn’t have to be a bipartisan issue either; however, courts need a clearer standard if lawmakers are to properly address gun violence in a country that desperately needs a solution.
The Zeitgeist aims to publish ideas worth discussing. The views presented are solely those of the writer and do not necessarily reflect the views of the editorial board.
