The Second Amendment Two-Step

The favorite dance of federal circuit court judges is ending

The bad news for gun control fans just keeps on coming. In the aftermath of the landmark Supreme Court ruling in New York State Rifle and Pistol Association v. Bruen, everyone has been so caught up in impact on discretionary carry permitting laws in California, the District of Columbia, Hawaii, Maryland, Massachusetts, New Jersey, and New York that they have overlooked what arguably is the core of the court’s opinion: ruling out the use of the two-step test that has become extremely popular in some federal judicial circuits.

The two-step test, also known as “interest balancing” or “means-end” testing has become a favorite in the Second, Third, Fourth, and Ninth Circuit appellate courts, especially in the Ninth Circuit, where en banc reviews have upheld or reversed district or appeals court rulings, based more on opinions than the law. Unsurprisingly, the Ninth Circuit has been reversed by the Supreme Court more than any other federal judicial circuit.

Basically, the two-step test looks first at the Second Amendment to see whether or not a law complies with the amendment’s requirements. If it doesn’t, the court then moves to the second step, whether the state has a compelling interest in allowing the violation to stand.