Oregon voters handed gun reformers a major victory when they backed a ballot measure creating one of the countrys most stringent systems for buying and selling firearms in 2022. New gun purchases would require approval from local law enforcement a rule common in Europe but almost unheard of in the United States. Measure 114 banned both semi-automatic assault rifles and magazines capable of holding more than five rounds.

It was a fleeting triumph. The next month, a state judge barred the law from going into effect. Parallel legal challenges are also working their way through the federal courts.

A similar thing is happening across the country as courts toss out gun restrictions both new and old. In the past year, federal judges scrapped a variety of gun laws, including those limiting concealed carry in certain places in New York, a ban on ghost guns in Delaware, a ban on people under 21 carrying handguns in Texas, and restrictions on gun ownership by those under felony indictment and also those under domestic violence protection orders in Texas.

The sudden challenge to these laws in courts across the country is a direct result of the Supreme Courts rightward shift, mostly starkly symbolized by its June 2022 decision in Bruen v. New York State Rifle & Pistol Association .

That decision, written by Justice Clarence Thomas and joined by the courts other five conservatives, struck down New Yorks limits on issuing concealed carry permits. In doing so, it denied government arguments in court that gun restrictions promote an important interest like community safety. Instead, gun restrictions may only be upheld if they are consistent with this Nations historical tradition of firearm regulation.

This new historical test demands that those defending gun restrictions prove to a court that Americans in the 18th and 19th centuries approved similar restrictions and that such restrictions were widespread and long-lasting enough to be considered a tradition. If those long-ago Americans did not consider something a problem, neither can Americans today.

Its a completely crazy standard, University of Chicago legal scholar Albert Alschuler said. They have turned the interpretation of the Second Amendment completely upside down.

The Supreme Court decision turbocharged a gun rights movement that had already racked up game-changing court victories over the last 15 years. If enough cases tip this way, states abilities to pass significant reform legislation could be squelched in the coming years a potentially dramatic blow to a reform movement that has relied on statehouses to push forward measures sure to die on arrival in a deadlocked Congress.

All these things are being litigated like mad, Alschuler said. The court will have to take another Second Amendment case very soon.

From Heller To Bruen

The Supreme Courts transformation of the Second Amendment began 15 years ago, with Justice Antonin Scalias opinion in Heller v. District of Columbia , which overturned Washington, D.C.s ban on handguns in the home.

In a major legal shift, the ruling extended the right to bear arms beyond the militia participants named specifically by the Second Amendment to private citizens keeping guns in their homes for self-defense. It was the first time the court recognized the constitutional right for individuals to own firearms. Two years later, the court ruled in a separate case that Second Amendment rights could be used to challenge not just federal laws, but state and local laws as well.

Those decisions allowed opponents to wage new battles against longstanding gun laws. When District Judge Roger Benitez overturned Californias 34-year-old assault weapons ban two years ago, he pointed to Heller, saying that under the decision, it is obvious that the California assault weapon ban is unconstitutional.

Because the Heller ruling applied to guns in common use, the sheer volume of semi-automatic rifles in America protects them under the Second Amendment, according to Mark Oliva, a spokesperson for the National Shooting Sports Federation.

There are currently 24.4 million of these rifles in circulation today, Oliva said. To put that into context for you, there are more of these rifles in circulation today than there are F-150s on the road.

What the Heller decision didnt do was lay out a process for courts to judge laws in conflict with the newly recognized individual right to firearm ownership.

When lower courts took up post-Heller gun cases, they largely adopted the same two-part test used in First Amendment free speech cases. First, judges would look to see if the law in question directly burdened the Second Amendment right to firearms. If it did, they would then apply strict scrutiny to determine if the law upheld a compelling government interest, like public safety.

Benitezs overturning of the California assault weapons ban was unusual at the time for largely casting aside the states public safety concerns when weighing the laws constitutionality. But by the time the 9th U.S. Circuit Court of Appeals was ready to consider the case, the Bruen decision had changed the standard for judging the constitutionality of state laws under the Second Amendment.

The appeals court had little choice but to send the case back to Benitez. Since the Bruen decision kept the first part of the constitutionality test that lower courts had been using, Benitezs ruling isnt likely to change. But, because Bruen also replaced the second, strict scrutiny part of that test with a new history-based test, decisions will be more likely to look like the one Benitez wrote.

The application of strict scrutiny allowed state governments to claim that gun laws served an important safety interest. This allowed some laws to remain standing despite Hellers assertion of an individual right to own firearms.

The new historical test, however, provides sweeping power to judges to interpret history as they see fit to strike down gun laws they oppose.

The revolution has been going on at least since Heller, Alschuler said. But it took an enormous step with this Bruen decision.

CTRL-F History

Bruens new historical test promotes what Pepperdine Caruso Law School professor Jacob Charles calls CTRL-F history or cursory keyword searching to wring easy answers from complex historical sources.

Governments defending gun restrictions must identify a well-established and representative historical analogue, not a historical twin, Thomas wrote in Bruen.

According to Thomas, such analogues should come from either Americas founding period when the Second Amendment was enacted or the period before 1868 when the 14th Amendment was enacted, although he never says which period is more important.

These analogous laws must also meet the definition of a tradition, so there must be an unspecified number of them at least more than one that lasted for an unspecified amount of time in U.S. history. In Thomas view, this also means that analogous laws enacted by U.S. territories prior to statehood deserve little weight because of their transitory nature.

It is then the judges responsibility to decide what the bounds of these unspecified historical rules are when a gun law comes before them. The application has been unsurprisingly chaotic.