A text and history standard, and what it means for local regulation.
Esshaki Legal Media TeamCurrent as of February 2026
Firearms regulation is assessed by asking whether the conduct is covered by the
constitutional text and, if so, whether the regulation is consistent with the
nation’s historical tradition of firearm regulation.
Step one. Does the plain text cover the individual’s conduct? If so, the
conduct is presumptively protected.
Step two. The government must justify the regulation by demonstrating that
it is consistent with historical tradition. Means-end scrutiny — balancing the
government’s interest against the burden — is not the framework.
Analogical reasoning. A historical analogue need not be a twin. The inquiry
considers how and why the regulation burdens the right, and whether historical
regulations imposed a comparable burden for comparable reasons.
Sensitive places. Regulation of carry in locations such as legislative
assemblies, polling places and courthouses is supported by historical practice,
and the boundaries of that category are actively litigated.
Presumptively lawful measures identified in prior decisions include
prohibitions on possession by felons and conditions on commercial sale.
Municipal relevance. Ordinances restricting carry in parks, municipal
buildings and at public meetings require a historical justification, and many
states preempt local firearms regulation entirely, which is the first question.