Overview
The Text, History, and Tradition Test is the constitutional standard established by the Supreme Court in NYSRPA v. Bruen (2022) for evaluating Second Amendment challenges. It replaces the two-step means-end scrutiny test previously used by lower courts.
Core Principle: Modern firearm regulations must be consistent with the Nation's historical tradition of firearm regulation.
Burden: The government must prove historical tradition supports the regulation.
The Two-Step Test
Step 1: Plain Text Analysis
Does the Second Amendment's plain text cover the individual's conduct?
- If YES → Constitution presumptively protects that conduct
- If NO → Regulation is constitutional, analysis ends
Step 2: Historical Tradition
If the text covers the conduct, can the government demonstrate the regulation is consistent with this Nation's historical tradition of firearm regulation?
- If YES → Regulation is constitutional
- If NO → Regulation violates Second Amendment
Step 1: Plain Text Analysis
What the Text Covers
The Second Amendment's text presumptively covers:
- "Keep" → Possessing firearms
- "Bear" → Carrying firearms
- "Arms" → Weapons of offense or defense
- "The people" → Individual persons
Examples of Covered Conduct
- ✅ Possessing a handgun in the home
- ✅ Carrying a firearm in public for self-defense
- ✅ Purchasing common firearms
- ✅ Possessing ammunition
Potential Exclusions
Conduct potentially not covered by plain text:
- ❓ Possessing weapons not "in common use"
- ❓ Carrying in certain sensitive places
- ❓ Commercial manufacture or sale (vs. possession)
Step 2: Historical Tradition Analysis
Government's Burden
"The government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation."
— Justice Thomas, NYSRPA v. Bruen
What Government Must Prove
- Identify historical regulations that are relevantly similar
- Show how the historical and modern regulations are comparable
- Explain why the burden imposed is comparably justified
What Government Need NOT Prove
- ❌ A "historical twin" - exact match not required
- ❌ Identical technology or circumstances
- ❌ Regulations from every historical period
- ❌ That regulation is effective or wise policy
Understanding Historical Analogues
The "How" and "Why" Test
From Rahimi, courts examine:
"WHY" - Justification Comparison
- Do both laws address similar problems?
- Are the societal concerns comparable?
- Is the harm prevented analogous?
"HOW" - Burden Comparison
- Is the burden on the right similar?
- Are the restrictions comparable in scope?
- Is the regulatory mechanism relevantly similar?
Examples of Valid Historical Analogues
| Modern Regulation | Historical Analogue | Why Similar |
|---|---|---|
| Prohibiting guns in schools | Prohibiting guns in legislative assemblies (1776) | Both are sensitive government spaces |
| Background checks | Loyalty oaths during Founding | Both screen for disqualifying characteristics |
| Domestic violence restraining orders | Surety laws for threatening persons | Both disarm those posing specific threats |
Relevant Historical Time Periods
Primary Periods (Most Important)
1791 - Second Amendment Ratification
- Founding era (roughly 1760s-1790s)
- State constitutional provisions
- Early federal and state statutes
- Contemporary commentary
1868 - Fourteenth Amendment Ratification
- Relevant for incorporation against states
- Reconstruction era understanding
- Freedmen's Bureau Act period
Secondary Periods (Supporting Evidence)
- English Precedents: Pre-1791 English law as background
- 19th Century: Can confirm or contradict earlier evidence
- Early 20th Century: Less weight, especially if contradicts Founding
- Late 20th Century: Generally insufficient alone
The Rahimi Clarification (2024)
Not "Historical Twins"
United States v. Rahimi clarified that Bruen doesn't require:
- Exact historical matches
- Identical regulatory mechanisms
- Same technological context
- "Hyperliteral" historical analysis
Level of Generality
"The appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition."
— Chief Justice Roberts, US v. Rahimi
Before vs. After Bruen
❌ Pre-Bruen: Means-End Scrutiny
- Step 1: Is conduct within scope of 2A?
- Step 2: Apply scrutiny level:
- Strict scrutiny
- Intermediate scrutiny
- Rational basis
- Balance government interest vs. burden
- Consider effectiveness of regulation
- Judge policy wisdom
✅ Post-Bruen: Text, History, Tradition
- Step 1: Does plain text cover conduct?
- Step 2: Is regulation historically justified?
- No interest balancing
- No scrutiny levels
- Effectiveness irrelevant
- History, not policy
How Courts Apply the Test
Typical Court Process
- Plaintiff challenges regulation
- Shows conduct falls within 2A text
- Establishes presumptive protection
- Burden shifts to government
- Must identify historical analogues
- Expert historians often testify
- Court evaluates analogues
- Compares "how" and "why"
- Determines if relevantly similar
- Court rules
- Sufficient historical tradition → upholds
- Insufficient tradition → strikes down
Real-World Applications
✅ Regulations Upheld Under Test
- Domestic violence restraining orders - Rahimi (2024)
- Prohibitions in federal buildings - Various circuits
- Background check requirements - Generally upheld
- Felon prohibitions - Most circuits uphold
❌ Regulations Struck Down
- May-issue carry licensing - Bruen (2022)
- Some "good moral character" requirements - Various courts
- Certain age-based bans (18-20) - Some circuits
- Some assault weapon bans - Under challenge
⚖️ Currently Disputed
- Magazine capacity restrictions
- Assault weapon definitions
- Non-violent felon prohibitions
- Scope of sensitive places
- Universal registration requirements
Criticisms & Challenges
Practical Difficulties
- Judges as historians: Courts struggle with historical analysis
- Incomplete records: Many historical laws lost or unrecorded
- Interpretive disputes: Historians disagree on meaning
- Changing contexts: Modern problems lack historical parallels
Methodological Debates
- How similar must analogues be?
- Which historical sources count?
- How to weigh conflicting evidence?
- Role of post-ratification practice?
Justice Jackson's Critique
"I am not a historian. And I am not sure that the history that the Court has recounted today is correct."
— Justice Jackson, concurring in Rahimi
Related Resources
Key Cases
- NYSRPA v. Bruen (2022) - Established the test
- US v. Rahimi (2024) - Clarified application
- DC v. Heller (2008) - Foundation for text analysis
Historical Sources
Related Concepts
Further Reading
How to Cite This Page
SecondAmendment.net. "Text, History, and Tradition Test." Accessed [Date]. https://secondamendment.net/concepts/text-history-tradition/