The Roberts Court is preparing to strike down state laws banning weapons of mass shooting. These are the laws that stood between a public classroom and the rifle that made it a mass grave. The Court on Tuesday agreed to hear challenges to assault-weapons bans in Connecticut and Cook County, Illinois, on a Second Amendment question presented against the doctrinal architecture the Court built in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1, 17 (2022). The Bruen framework requires the government to defend a firearm regulation by identifying a “historical tradition” of comparable regulation — a test that loads the analysis in one direction by design. The lower courts upheld both bans. The Court has selected the cases for merits review knowing the analytical framework petitioners’ counsel will deploy, and that framework is the framework that will determine the outcome. The cert grant — the Court’s order agreeing to hear a case on the merits — is not neutral case management. The cert grant is the choice to put state public-safety authority in the path of invalidation.
The working position supporting the cert grant is defensible on its own terms. The Court has an obligation, where the lower courts have divided on the meaning of a constitutional right, to resolve the question and clarify the doctrinal landscape. After Bruen’s text-and-history test, the federal appeals courts have divided on what kinds of historical analogues count as “relevantly similar” to modern firearm regulations — that is, what kinds of historical American firearm laws establish the kind of regulatory tradition the modern law must fit within. The Seventh Circuit and the Second Circuit upheld the Cook County and Connecticut bans by concluding the bans were sufficiently analogous to historical regulations of “dangerous and unusual” weapons, a phrase from the Court’s pre-Bruen Second Amendment doctrine. The cert grant, on this reading, is the ordinary process of resolving a circuit split. A working-bar attorney aligned with the petitioning gun-rights organizations would recognize that reading and would defend the Court’s intervention as routine merits docket work.
The audit follows. There are four named departures, each documented in the record.
The first is that the cert grant is the case the Court wants, not the case the docket produced. Across the post-Bruen terms, the Court has taken up gun-rights cases in a pattern that maps the litigation pipeline the conservative legal movement built after the Court’s foundational Second Amendment decisions — a pipeline that produces vehicles presenting the question in postures the doctrinal framework can resolve in the gun-rights direction. The cert grants have been concentrated in cases where the historical record can be curated to favor invalidation. The cert denials have been concentrated in cases where the historical record on state and federal regulation of military-style semi-automatic firearms — the 1920s and 1930s state laws, the National Firearms Act of 1934, the federal assault-weapons ban of 1994 — would complicate the petitioners’ analytical posture. The cert grant here is the next instance of the pattern documented at SCOTUS-7 in the catalog: the docket treated as a litigation-strategy artifact rather than as neutral case management.
The second is that Bruen’s framework is the engine. The text-and-history test, as deployed across the post-Bruen docket, places the burden on the State to produce analogues that share a “general principle” with the modern law — meaning the historical regulation must have addressed the same kind of problem with the same kind of mechanism. The “principle, not a mold” formulation appeared in Justice Barrett’s concurrence in United States v. Rahimi, 602 U.S. ___ (2024) (slip op., at 8–9), an attempt by a member of the conservative bloc to discipline the more aggressive methodology without changing its direction. The State must show historical regulation addressed the same problem with the same mechanism. For assault-weapons bans, the question is whether the State can identify historical regulation of military-style semi-automatic firearms that addressed the problem of mass public shootings. The historical record on that question is documented in the scholarly literature — including the early-twentieth-century record on regulation of Thompson-submachine-gun-era civilian-accessible weapons. The Court’s cert grant here signals that the question will be resolved in the direction petitioners’ counsel are asking for.
The third is the asymmetric deployment. The history-and-tradition method runs in one direction in the hands of the current Court. Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2242–66 (2022), used the same method to overrule the abortion precedents the Court had recognized for half a century; the historical record on nineteenth-century reproductive regulation was surveyed selectively to support the conclusion that the constitutional right to abortion was not “deeply rooted.” The same method, deployed in the Bruen line, requires the State to demonstrate historical grounding for modern firearm regulation. The methodology is the same. The directional application is opposite. The pattern is the one documented by Joseph Fishkin and David Pozen on asymmetric constitutional hardball and by Reva Siegel on history-and-tradition as memory game. The cert grant here extends the pattern.
The fourth is the consequence. The state assault-weapons bans in roughly a dozen jurisdictions — covering major cities including New York, Los Angeles, and Washington, D.C. — and the local bans in Cook County, Denver, and other major cities, were enacted because the state and local legislative bodies concluded that military-style semi-automatic firearms were instruments of mass public shooting. The Court has not been presented with the record on the rate of mass-shooting deaths from assault-style weapons, the lethality differential between assault-style and other rifles, or the trajectory of these weapons’ deployment in mass shootings over the past three decades. The cert grant is on the constitutional question only. The empirical record on which the public-safety laws rest is not before the Court. The Court has selected these cases on a doctrinal frame that does not engage the public-safety record.
The working-bar position is that the Court has an obligation to clarify the doctrinal landscape. The audit position is that the Court has selected these cases to do that clarification on a doctrinal frame that will not engage the public-safety record, in a cert-grant pattern that has consistently favored one coalition’s analytical posture, in a methodological deployment the same Court has run in the opposite direction when the constitutional right at issue was reproductive autonomy. The two positions are not in equipoise. An honest application of the text-and-history test would take the public-safety findings of the state legislatures as the starting point for the constitutional analysis, not as evidence to be set aside. The Court has not signaled it will do that work. The first move is the most revealing. The Court has made it.