The Second Amendment: Heller, McDonald, Bruen's Historical Test, and the Red Flag Law Fight
Three Supreme Court decisions have reshaped Second Amendment law in 20 years. Heller created an individual right. McDonald ar(--text-light);font-size:1rem;max-width:640px;margin:0 0 8px;"> Three Supreme Court decisions have reshaped Second Amendment law in 20 years. Heller created an individual right. McDonald applied it to the states. Bruen replaced the constitutional test with a historically-based standard that has thrown dozens of gun laws into doubt, from assault weapon bans to restrictions on domestic abusers. Here is where the law stands in 2026.
- Heller (2008) established an individual right to keep firearms for self-defense at home; Bruen (2022) expanded it by requiring gun laws to be grounded in historical analogues from 1791
- The "Bruen test" has made it harder to uphold modern gun regulations — lower courts have struck down restrictions on bump stocks, ghost guns, and large-capacity magazines using the historical test
- ~63% of Americans support stricter gun laws (Gallup, 2026); support is highest among Democrats (84%) and lowest among Republicans (34%) — a 50-point partisan gap
- Red flag laws (Extreme Risk Protection Orders) allow courts to temporarily remove firearms from people deemed dangerous; 21 states have them; their constitutionality is being tested in multiple circuits
The Three Landmark Cases
| Case | What It Decided | Vote |
|---|---|---|
| Heller (2008) | 2A protects individual right to keep handguns at home; DC ban struck down; right not unlimited | 5-4 |
| McDonald (2010) | 14th Amendment incorporates 2A right against states; Chicago handgun ban struck down | 5-4 |
| Bruen (2022) | NY concealed carry permit law struck down; replaced balancing test with historical tradition test | 6-3 |
| Rahimi (2024) | Federal law barring domestic abusers subject to restraining orders from guns upheld — historical surety analogues found | 8-1 |
Why It Matters for 2026
Post-Bruen, several federal district courts have found state assault weapon bans unconstitutional because there is no Founding-era historical analogue for restrictions on semi-automatic weapons. The 7th Circuit upheld Illinois's assault weapon ban; the 9th Circuit struck down California's similar law in a panel ruling that was later reheard en banc. The Supreme Court is expected to take an assault weapon case by 2027. The legal status of AR-15-style rifle restrictions is now genuinely uncertain.
The Supreme Court struck down a Trump-era ATF rule banning bump stocks in Garland v. Cargill (2024) — not on Second Amendment grounds but because the ATF lacked statutory authority to classify bump stock-equipped rifles as machine guns. The Biden ATF rule on "ghost guns" (unserialized privately made firearms) was also challenged; courts split on its validity. Trump's ATF withdrew the ghost gun rule in 2025. These regulatory losses have closed off executive branch gun control without congressional action.
The 2022 Bipartisan Safer Communities Act — the most significant federal gun legislation in 30 years — enhanced background checks for buyers under 21, closed the "boyfriend loophole" in domestic violence gun bans, and funded state crisis intervention (red flag) programs. Its provisions have been challenged under Bruen with mixed results in lower courts. The law's constitutionality under the historical tradition test remains unsettled, making it a potential future Supreme Court case.
Frequently Asked Questions
What did District of Columbia v. Heller decide?
Heller (2008) established that the Second Amendment protects an individual right to possess firearms for self-defense, independent of militia service. DC's handgun ban was struck down. The 5-4 majority opinion by Justice Scalia noted the right is not unlimited — it does not protect all weapons, does not prevent restrictions on carrying in sensitive places, and does not prohibit laws barring felons or the mentally ill from firearms. McDonald (2010) applied Heller to state and local governments.
What did Bruen change about Second Amendment law?
Bruen (2022) struck down New York's proper-cause requirement for concealed carry permits and replaced the previous two-step interest-balancing test with a "historical tradition" test. Gun regulations are now constitutional only if the government can show they are consistent with historical firearm regulation at the time of the Founding (1791) or Reconstruction (1868). This has made many modern gun laws legally vulnerable because historical analogues are often difficult to establish for regulations addressing modern weapons technology.
Are red flag laws constitutional under Bruen?
The constitutional status of red flag (Extreme Risk Protection Order) laws is contested under Bruen. Some courts have found historical analogues in Founding-era surety laws that required dangerous individuals to post bonds. Others have found the temporary deprivation of firearms without criminal conviction lacks sufficient historical precedent. The Supreme Court upheld a related domestic violence firearms restriction in Rahimi (2024), but had not directly ruled on red flag laws as of early 2026.
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