“When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy-a commonplace task for any lawyer or judge. Likewise, he said, if that societal problem was historically addressed using a type of regulation different than the one now before a court, that is also evidence that the modern law is unconstitutional. “Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” Thomas said.Ĭourts are required to “assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding,” Thomas said.įor instance, he wrote, if a gun law is addressing a societal problem that also existed in the 18th century, it is evidence that the modern law is unconstitutional if there was no similar regulation then. “Despite the popularity of this two-step approach, it is one step too many,” Thomas wrote Thursday, calling the second step inconsistent with the Supreme Court’s previous gun rights precedents. If it did, then they assessed whether the regulation’s means justified its ends.

Lower courts have looked at, first, whether the regulated activity falls within the scope of conduct protected by the Second Amendment. In the fallout of a case called District of Columbia v Heller – a landmark 2008 ruling where the Supreme Court established that the Second Amendment protect an individual’s right to bear arms – appeals courts across the country had coalesced around a two-step legal approach for analyzing the constitutionality of a gun regulation. Virtually any other type of gun regulation, including age-based regulations, restrictions on certain types of firearms and limits on high-capacity magazines, will now be viewed by courts in a harsher light.

Up for grabs is not just public carry laws like the New York regime before the court. The ruling will also likely prompt a bevy of new legal challenges, with gun rights proponents now able to push more aggressive arguments for why a restriction should be struck down. There are cases already in motion where courts will now adjust their approach and raise the threshold that governments will have to overcome in defending their gun safety laws. This new standard will change the legal playing field around gun laws.

Supreme Court strikes down New York's handgun law The US Supreme Court is seen in Washington, DC on February 8, 2022.

Supreme court decisions