User:The Wordsmith/Text, history and tradition

In U.S. constitutional law, the text, history and tradition test is the United States Supreme Court's framework for determining whether laws that constrain the individual right to keep and bear arms are consistent with the Second Amendment to the United States Constitution. The test clarifies and expands upon previous Second Amendment case law, establishing that such laws must be rooted in the "historical tradition" of firearms regulations.

District of Columbia v. Heller
An early version of this principle was employed in 2008 by Antonin Scalia in the majority opinion for District of Columbia v. Heller. Scalia cited the landmark 1934 decision in United States v. Miller, which determined that the Second Amendment protected the right to own weapons which were in common use and suitable for use in a militia. Scalia wrote that this holding was supported by the "historical tradition" of bans on the carrying of dangerous and unusual weapons. Additionally, in striking down the Washington, D.C. law banning handguns and requiring firearms to be stored "unloaded and disassembled or bound by a trigger lock", the Court determined that such restrictions made it impossible for citizens to use their Second Amendment rights for "the core lawful purpose of self-defense" and were thus unconstitutional.

An analysis by author and Second Amendment litigator Stephen Halbrook concluded that the majority opinion in Heller "relied on text, history, and tradition" to establish the right to keep and bear arms as an individual right, firmly rejecting the collective right theory. Halbrook asserted that this principle was a textualist interpretation confirmed by the historical context of the Second Amendment. Examples cited included the English Declaration of Rights of 1689 as well as "post-ratification commentary, antebellum judicial opinions, Reconstruction legislation, and post-Civil War commentary."

Two-part test
In an effort to apply the principles from Heller, Courts of Appeal coalesced around a two-step analytical framework. The first step of this framework determined if the activity being regulated by the challenged law fell outside the scope of the Second Amendment as it was originally understood. If so, the second step applied tiered scrutiny when reviewing the constitutionality of a specific law. Severe burdens to Second Amendment rights had strict scrutiny applied, while restrictions that were less onerous or fell outside the "core" of the Second Amendment were merely subject to intermediate scrutiny.

Bruen
On June 23, 2022, the Supreme Court issued its opinion in New York State Rifle & Pistol Association v. Bruen, which challenged the Sullivan Act, a New York law that required concealed carry permit applicants to show "proper cause" to carry handguns outside the home. In a 6-3 decision written by Clarence Thomas, the Court struck down the law with a determination that the ability to carry a pistol in public was a right guaranteed by the Second Amendment. In doing so, the Court also clarified that in order to survive a Second Amendment-based challenge, firearms laws must be rooted in the text and “historical tradition” of firearms regulation. This clarification rejected the previous “two-step” methodology that had been used in recent years by lower courts.