The Bruen ruling, when laying out the historical prong of the test, said it was up to the government that was defending a gun law to prove the restriction had a parallel in the past.
This shift in burden has put gun rights groups at a greater advantage in court. It has also changed the type of work that government defenders – and the outside gun safety groups that often support them in litigation – must do to advocate for their laws.
“Imagine if you are a district attorney, somewhere in some random state, you suddenly get a lawsuit brought on this, on some gun law you’ve got, and then you’ve got maybe 30 days to respond to the lawsuit. What are you going to do?” said Carlton Larson, a professor at UC-Davis School of Law who specializes in the historical basis of Second Amendment rights.
“I am a legal historian by training,” Larson said. “I would find it very, very hard to turn around quickly on that and come up with something thoughtful.”
But gun rights advocates say this work of historical analysis is a better fit for courts than the means-ends balancing test that many lower courts were applying pre-Bruen. The old approach required courts to act like legislators, said Peter Patterson – a lawyer for the firm Cooper and Kirk, which has represented gun rights groups in high profile cases – while the historical analysis, he said, is “much more a judicial task.”
The Bruen decision has also put a greater focus on the first prong of the legal test – whether the conduct being burden is even covered by the Second Amendment in the first place – which was a question that was “underappreciated” in litigation over gun laws in the past, according to Tirschwell.
— Tierney Sneed in How the Supreme Court Put Gun Control Laws in Jeopardy Nationwide