After Hemani, Bruen’s History and Tradition Test Has a New Target

Ever since the Supreme Court established the “History and Tradition” test in its 2022 Bruen decision, America’s legal landscape has been undergoing a seismic re-evaluation. Under this standard, any modern gun control law is presumed unconstitutional unless the government can prove it aligns with a historical analogue from the founding era.

Because centuries of American law were not built with this exact strict historical formula in mind, dozens of well-established federal, state, and local gun control measures are currently in danger of being struck down.

The primary gun restriction acts, categories, and mandates facing constitutional collapse under the history and tradition test reveal a shifting landscape.

1. State “Assault Weapon” and High-Capacity Magazine Bans

Perhaps the most high-profile battleground involves state-level bans on semi-automatic rifles (like the AR-15 platform) and magazines that hold more than 10 rounds. Ten states and Washington, D.C., currently have these restrictions, but multiple challenges (Bianchi v. Brown, Duncan v. Bonta) are stacked at the Supreme Court’s doorstep.

The History Test Problem: Under the first step of the Bruen test, courts look at whether the hardware in question constitutes “Arms” in common use by law-abiding citizens for lawful purposes. Because millions of AR-15 style rifles are owned nationwide, they easily clear Step 1.

The Missing Analogue: When moving to Step 2, states have struggled to find a founding-era equivalent. The closest analogues governments have produced are 19th-century bans on Bowie knives or concealed pocket pistols. However, gun rights advocates successfully argue that those historical laws targeted specific concealment methods of weapon carry, not a flat ban on owning an entire class of popular, standard-sized rifles and feeding devices.

2. The Blanket Federal Felon Disarmament Ban (18 U.S.C. § 922(g)(1))

For decades, federal law has maintained a lifetime, blanket ban prohibiting anyone convicted of a crime punishable by more than one year in prison from ever owning a firearm again. This applies universally—whether the crime was violent armed robbery or a non-violent corporate tax freeze, mail fraud, or selling smuggled goods.

Following the Supreme Court’s strict approach in United States v. Hemani, which struck down the federal gun ban for regular marijuana users because historical “drunkard laws” didn’t support it, the blanket felon ban is highly vulnerable to “as-applied” challenges.

The History Test Problem: Historians point out that the founding generation did not have a sweeping, automatic, lifetime ban on gun ownership for all felons.

The True Analogue: Historical laws from the 1700s only disarmed specific groups deemed actively dangerous to the public or rebellious against the state (such as British loyalists during the Revolution). Consequently, the federal government is finding it nearly impossible to prove a historical tradition of permanently disarming someone for a non-violent, modern-day felony like driving an unregistered vehicle or filing fraudulent tax paperwork.

3. Mandatory “Waiting Periods” for Firearm Purchases

Several states require a mandatory waiting period—typically between 3 to 10 days—between the time a citizen buys a firearm and when they can legally take it home. While designed as a “cooling-off” period to prevent impulsive acts of violence, these laws are facing a massive historical reckoning in federal appeals courts.

The History Test Problem: The text of the Second Amendment protects the right to “keep and bear” arms. Delaying a law-abiding citizen’s ability to “keep” an item they just legally purchased directly burdens that right, moving the case to the historical phase.

The Absolute Absence of History: There is virtually zero historical footprint for a purchase waiting period in early American history. In 1791, if you had the money to buy a musket or flintlock pistol, you took it home immediately. States have attempted to argue that the time it took to travel to a store or manufacture a weapon acted as a natural “delay,” but courts are increasingly rejecting these reaches, noting that logistical constraints are not the same as an intentional, government-mandated restriction on a constitutional right.

4. State “Sensitive Places” Coverages (The Private Property Default)

Following the Bruen ruling, several restrictive states shifted tactics. Instead of denying carry permits altogether, they passed sweeping “sensitive places” laws. The most controversial is the private-property default rule (currently being challenged in the Supreme Court case Wolford v. Lopez), which automatically outlaws concealed carry inside any private business open to the public unless the owner posts a explicit sign welcoming guns.

The History Test Problem: While the Supreme Court acknowledged that historically “sensitive places” like courthouses or polling stations could be protected, expanding that definition to blanket entire municipal maps fails the history test.

The Analogy Twist: States like Hawaii and New York have attempted to justify these laws by citing 19th-century anti-trespass laws. However, those historical laws were aimed at stopping armed intruders from entering private domestic estates, homes, and plantations. There is a glaring lack of an American tradition where the government dictates that a public-facing grocery store, blacksmith, or tavern must be a default “no-gun zone.”

Summary of Vulnerable Firearms Regulations

As courts continue to scrub the history books to satisfy the Bruen and Rahimi frameworks, the message is clear: if a gun regulation cannot trace its genetic lineage back to early American tradition, its days on the modern books are numbered.

About Sean Maloney

Sean Maloney is a criminal defense attorney, co-founder of Second Call Defense, and an NRA-certified firearms instructor. He is a nationally recognized speaker on critical topics, including the Second Amendment, self-defense, the use of lethal force, and concealed carry. Sean has worked on numerous use-of-force and self-defense cases and has personally trained hundreds of civilians to respond safely and legally to life-threatening situations. He is a passionate advocate for restoring the cultural legitimacy of the Second Amendment and promoting personal responsibility in self-defense.