The Supreme Court’s preferred method of interpreting the Constitution is originalism, which requires judges to abide by the original public meaning of the constitutional text. This is often more complicated in practice than in theory. Few areas of the law demonstrate the pitfalls better than the Second Amendment.
Since the Supreme Court adopted what’s come to be known as the “history and tradition” test in Second Amendment cases three years ago, the lower courts have wrestled with countless questions about how to apply it. I’ve noted before how judges have taken a wide range of approaches to finding historical counterparts for modern gun laws. Perhaps the most consequential question is the most obvious one: What exactly counts as history and tradition, and when does it begin?
Some lower courts have focused on gun restrictions that existed when the Second Amendment was ratified in 1791. Others extend that analysis to the laws in effect when the Fourteenth Amendment’s due process clause was ratified in 1868. This debate, though somewhat arcane, could have immense practical consequences for gun rights and gun control in 2025 and beyond.
One petition for review pending before the court, Antonyuk v. James, asks the court to resolve the question by revisiting New York’s gun laws. After the Supreme Court struck down its previous concealed-carry law in 2022, New York lawmakers quickly passed the Concealed Carry Improvement Act to address the court’s ruling. Among other provisions, it required license applicants to demonstrate their “good moral character” and forbade them from bringing a gun to certain “sensitive locations.”
A group of prospective applicants quickly sued to challenge the new law on Second Amendment grounds. They claimed that the “sensitive locations” requirement made it all but impossible to carry a gun in New York City and elsewhere. The “good moral character” clause also drew their ire. “To implement this ahistorical morality test,” they fumed in their petition for review, “the CCIA demands character references, information about cohabitants and adult children, a personal ‘interview’ with a licensing official, more than two full days of firearms training, a list of social media accounts, and ‘such other information’ as might be demanded.”
From there, this conflict has followed a circuitous path through the judicial system. A federal district court judge issued a preliminary injunction to block the law from going into effect, but the Second Circuit Court of Appeals reversed it. The applicants asked the Supreme Court to intervene, but the justices ruled last year that the Second Circuit should review its ruling to account for a major Second Amendment ruling that the high court had just issued. The Second Circuit upheld its original ruling last December, thereby bringing everyone back to the Supreme Court.
In both decisions, the Second Circuit took a broad view of what historical eras could be studied. “While we recognize that evidence nearest to 1791 can differ from that nearest to 1868, such discrepancy does not mean that the right to keep and bear arms was calcified in either 1791 or 1868,” the panel explained. “Rather, 1791 and 1868 are both fertile ground, and the adjacent and intervening periods are likewise places in the historical record to seek evidence of our national tradition of firearms regulation.”
The plaintiffs challenging the New York law rejected that approach. They contend that courts should primarily focus on 1791 and the gun restrictions in effect in that era to find any relevant historical analogues. Focusing on the 1790s over the 1860s would likely be decisive for their case: The Second Circuit found no eighteenth-century analogues, the plaintiffs told the justices, and instead relied on nineteenth-century ones to uphold the New York law.
Why those two eras in particular? When Congress and the states ratified the Fourteenth Amendment in 1868, they effectively carried out a second American Revolution. The new amendment defined and expanded American citizenship, guaranteed the equal protection of the laws, and gave Congress new tools to protect the nascent multiracial democracy that had emerged from emancipation.
Among the amendment’s provisions was the due process clause, which declared that no state “shall deprive any person of life, liberty, or property, without due process of law.” Before then, the Bill of Rights and its manifold protections only protected Americans from the actions of the federal government. State constitutions typically had their own bills of rights, which could vary greatly in strength and scope from their federal counterpart. By the early twentieth century, federal courts began to use the Fourteenth Amendment’s due process clause to apply the federal Bill of Rights and its broad protections to the states themselves.
This process is known as “incorporation.” In the 2008 case District of Columbia v. Heller, for example, the Supreme Court held that the Second Amendment protects an individual right to bear arms. But the court’s decision in that case did not immediately apply to state governments because D.C. is a federal enclave. The justices incorporated the Second Amendment against the states two years later in McDonald v. Chicago.
After McDonald, the justices took a decade-long break from Second Amendment cases until New York State Pistol and Rifle Association v. Bruen, where they laid down the test for lower courts to use when weighing the constitutionality of a gun restriction. Many lower courts had relied on balancing tests that often favored state legislatures. Justice Clarence Thomas, writing for the court, instead adopted a purely originalist test that required courts to look solely at history and tradition.
“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” he explained. “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.”
Left unanswered by Bruen was the temporal question: Which time frame should courts use when determining what counts as the “historical tradition”? Originalism generally holds that the Constitution should be interpreted based on the original public meaning of the text. But incorporation effectively created two original public meanings: the one held by Americans in 1791 when they ratified the Second Amendment, and the one held in 1868 when they ratified the Fourteenth Amendment.
Thomas’s opinion, by default, took an expansive view. He cited historical evidence that spanned from medieval England to late-nineteenth-century America to argue that New York’s concealed-carry law fell outside “the nation’s historical tradition of firearm tradition.” But he disclaimed that this approach was the definitive one, pointing to an “ongoing scholarly debate” about whether courts should defer to the founding era or to Reconstruction.
It also helped matters that he and his colleagues thought the answer in Bruen would be the same one either way. “We need not address this issue today because, as we explain below, the public understanding of the right to keep and bear arms in both 1791 and 1868 was, for all relevant purposes, the same with respect to public carry,” Thomas wrote.
In a concurring opinion, Justice Amy Coney Barrett echoed Thomas’s caution—while also putting her thumb on the scale for focusing on 1791. “Today’s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights,” she wrote, quoting from Thomas’s opinion. “On the contrary, the Court is careful to caution ‘against giving postenactment history more weight than it can rightly bear.’”
Adopting the history-and-tradition test raised a host of methodological issues that the lower courts are still wrestling with. The Supreme Court itself pared back Bruen’s test last year in United States v. Rahimi, where the court upheld a federal ban on gun ownership for domestic abusers. Instead of excavating multiple centuries of the Anglo-American legal tradition, the majority held that surety and “going armed” laws in the founding era were a sufficient historical analogue to meet Bruen’s standard.
Rahimi’s practical effect was to make it easier for lower courts to uphold gun restrictions by allowing states to cite a “historical analogue” to a challenged restriction instead of a “historical twin.” On the temporal question, Barrett also appeared to gain the upper hand. Writing separately again, she argued that “evidence of ‘tradition’ unmoored from original meaning is not binding law” and warned that “scattered cases or regulations pulled from history may have little bearing on the meaning of the text.”
“For an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law,” Barrett wrote. “History (or tradition) that long postdates ratification does not serve that function.” Though she was not explicit about when the clock starts, her concurring opinion is written from the presumption that the 1791 date is the controlling one. When discussing historical analogues, for example, she wrote that being too strict about potential analogues “forces 21st-century regulations to follow late-18th-century policy choices.”
If the court follows Barrett’s lead, the Second Amendment will be interpreted against a much less restrictive backdrop. Americans in the early eighteenth century often relied on guns for sustenance by hunting for wild game, making it far less likely that state legislatures would restrict their access to them. The early American state was too rudimentary to conduct background checks or track purchases. Self-defense was also a far more immediate concern in 1791 than it is today. There would be no municipal police departments for another three decades, and skirmishes with Native American tribes were still common on the frontier.
At the same time, the Supreme Court itself has often relied on 1868-adjacent laws to define the contours of the Second Amendment. Justice Antonin Scalia’s opinion in Heller devotes two sections to analyzing how nineteenth-century Americans viewed an individual right to bear arms during Reconstruction. It goes without saying that Justice Samuel Alito’s opinion in McDonald, which focused on the Fourteenth Amendment, discussed that history at length as well. “Strictly speaking, New York is bound to respect the right to keep and bear arms because of the Fourteenth Amendment, not the Second,” Thomas observed in Bruen.
But Thomas also noted that the court’s prior incorporation decisions “have generally assumed that the scope of the protection applicable to the federal government and states is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.” That has not stopped the lower courts from following the Supreme Court’s lead and looking to Reconstruction-era gun laws for guidance. When the Second Circuit issued its decision in December, for example, it explicitly parted ways with the neighboring Third Circuit Court of Appeals, which looks only to 1791.
The Supreme Court may ultimately decline to hear the Antonyuk case on other grounds. The justices may be reluctant to weigh in through a preliminary injunction and instead wait for a fully decided case to reach them. But it is almost certain that as long as Bruen’s history-and-tradition test remains the law of the land, the court will eventually have to decide exactly what history and what tradition can be examined when scrutinizing gun regulations in twenty-first-century America.
