The case kicked off years of additional litigation, and in the absence of clear guidance from the Supreme Court, lower courts established their own tests for firearms regulations, largely applying a form of “intermediate” scrutiny that left intact a wide range of gun control measures, including bans on so-called assault weapons and large-capacity magazines. It left untouched the standard prohibitions against weapons possession, including by unlawful drug users.

Then, in 2022, the Supreme Court dropped a nuclear bomb on state gun regulations. In New York State Rifle & Pistol Association, Inc. v. Bruen, the court did two things. First, it established that the Second Amendment didn’t just establish a right to “keep” a gun in the home for self-defense, it also established a right to “bear” a gun outside the home. The right to bear arms outside the home wasn’t unlimited, however, which brings us to Bruen’s second, and most important, holding. In his majority opinion, Justice Clarence Thomas established a new constitutional test for gun regulations. Rather than applying conventional legal tests for constitutional rights, such as subjecting gun regulations to intermediate or even strict scrutiny, those regulations now have to be evaluated using the “text and history” of the Second Amendment.

Put in plain English, that means that modern gun control measures can be sustained only if the government can point to historical analogues, with an emphasis on those existing at the time the Second Amendment was adopted or when the 14th Amendment (which made the Second Amendment applicable to the states) was ratified.

The result, quite simply, has been legal chaos. The history of gun regulation is not so neat and clean as to yield easy historical parallels to the questions at issue today; American legal doctrine has developed considerably since the colonial and Reconstruction eras. As a result, unless the government can draw a bright line between history and the present day, its gun control measures are in mortal legal peril.

The federal court rulings after Bruen have been dramatic. In United States v. Rahimi, the Fifth Circuit reversed the federal conviction of a man who possessed a weapon while subject to a domestic violence restraining order. In April, a federal district judge struck down the gun possession charges of a marijuana user. In June, the Court of Appeals for the Third Circuit, sitting en banc, held that federal law violated the Second Amendment rights of a nonviolent criminal to purchase a firearm.