Second Amendment: Clarifying Bruen Two-Step Test Misinterpretation

• The 2022 *New York State Rifle & Pistol Association v. Bruen* case established a two-step "text-first, history-second" test for Second Amendment challenges.
• This test requires courts first to determine if the Second Amendment's plain text covers the regulated conduct.
• The Supreme Court case *Wolford v. Lopez* was decided on June 25, 2026, and concerns the application of the *Bruen* framework to state laws restricting firearm carry on private property open to the public.
• Lower courts are frequently misinterpreting the *Bruen* two-step test, leading to Second Amendment analysis errors.
• These misinterpretations are particularly common in cases involving the commercial sale of firearms.

Despite the Supreme Court's clear articulation of this two-step methodology, lower courts have frequently demonstrated a significant Bruen two-step test misinterpretation.

In 2022, the Supreme Court issued a pivotal ruling in *New York State Rifle & Pistol Association v. Bruen*, which invalidated New York's concealed carry statute. This landmark decision fundamentally reshaped the legal landscape for Second Amendment challenges by introducing a new, two-step analytical framework for courts to apply. This framework dictates how judges must assess whether a particular law infringes upon an individual's constitutional right to keep and bear arms, moving away from previous balancing tests.

The *Bruen* decision built upon previous Second Amendment jurisprudence, notably the 2008 case *District of Columbia v. Heller*. In *Heller*, the Court affirmed an individual's right to possess a handgun in their home for self-defense, establishing the Second Amendment as an individual right. Fourteen years later, *Bruen* further clarified the methodology for evaluating Second Amendment claims, establishing a "text-first, history-second" approach. This new test prioritizes the plain meaning of the constitutional text before delving into historical analogues to determine the scope of the right and permissible regulations.

The analytical process established by *Bruen* begins with its first step, which requires courts to determine if the "plain text" of the Second Amendment encompasses the specific conduct regulated by the challenged legislation. This initial inquiry is designed to be a straightforward linguistic assessment. This step is not complex but rather a simple examination of language.

To satisfy this first step, courts must consider three critical terms within the Second Amendment's operative clause: "people," "Arms," and "keep and bear." A law is deemed to implicate the plain text of these terms if it "applies to the people," "concerns any form of Arms," and "places any restrictions on either the possession or the carrying of arms." This initial textual analysis serves as the gateway to any further historical inquiry under the *Bruen* framework.

Despite the Supreme Court's clear articulation of this two-step methodology, lower courts have frequently demonstrated a significant *Bruen two-step test misinterpretation*. Only a few years following the *New York State Rifle & Pistol Association v. Bruen* ruling, *circuit court Bruen application* has often veered from the intended framework, leading to widespread *Second Amendment analysis errors*. This misconstruing of what *Bruen* actually held is a persistent and concerning issue across various jurisdictions.

These analytical shortcomings are particularly evident in cases pertaining to the *firearms commercial sale Bruen* context. Courts are struggling to correctly apply the "text-first, history-second" test, especially when evaluating regulations that touch upon the commercial aspects of firearms. The ongoing confusion highlights a critical challenge for legal practitioners navigating Second Amendment litigation, as understanding these common errors is crucial for effective advocacy and client advisement.

This article warns lawyers that lower courts are frequently misapplying the *Bruen* two-step test for Second Amendment cases, particularly concerning commercial firearm sales. Practitioners must understand these common errors to effectively litigate, appeal, or advise clients on Second Amendment challenges and compliance.

Source: Insights from recent legal analysis