The Bruen Problem: Writing Gun Laws That Can Withstand Constitutional Challenge

One of the most pressing public policy issues in the United States is gunregulation. An incredibly polarizing topic, it pits those who prioritize thepreservation of their constitutional rights against those who prioritizesafeguarding the American youth. Advocates for the latter push for more ferventgun legislation, but as the Supreme Court’s decision in New York State Rifle &Pistol Association v. Bruen (2022) clearly holds, many contemporary gun controllaws are not legally robust. It is now more critical than ever to write gun controllaws that are both effective and capable of withstanding constitutional scrutiny.But how is this achievable in the post-Bruen landscape? Recent legal challengeshave exposed ambiguities and pitfalls in the “text, history, and tradition” test,making its application difficult. This paper examines early interpretations of theSecond Amendment, the influence of the landmark Bruen decision and its lowercourt predecessors (including U.S. v. Rahimi), and proposes solutions to draftinggun control legislation that both protects and considers constitutional precedents.