After New York Rifle & Pistol Ass’n v. Bruen and United States v. Rahimi overhauled the Second Amendment landscape, courts face convoluted and difficult questions about how to treat challenges to federal gun laws. In particular, the Supreme Court has not stated how the Bruen analysis applies against the “presumptively lawful regulatory measures” and “longstanding prohibitions on the possession of firearms” that the Court appeared to leave as substantive limits on the individual right to keep and bear arms in District of Columbia v. Heller. Are regulations prohibiting felons from possessing firearms (like 28 U.S.C. § 922(g)(1)) presumptively lawful because they do not burden the actual right, or merely presumptively lawful because they fit into the nation’s historical tradition for regulating arms? This question divides the Circuit Courts of Appeals. 

This paper concludes the Bruen analysis requires courts to take the latter route. Regulatory measures like § 922(g)(1) are presumptively lawful because of the nation’s historical tradition for barring felons from possessing firearms. Therefore, a defendant presenting an as-applied challenge to § 922(g)(1) can rebut that presumption by showing that the historical tradition does not actually apply to them. There is no categorical felon exception in the Bruen analysis: the government cannot declare certain regulations lawful without satisfying the actual Bruen test. The Supreme Court declared history and tradition define the Second Amendment right. Now, lower courts must apply the history and tradition test rather than seeking out exceptions.