The Second Amendment Two-Step

William Connell Cawthon Jr.
7 min readJul 1, 2022

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.

Since the Supreme Court rulings in Heller and McDonald, the two-step test has become a workaround to allow all sorts of judicial mischief.

In the majority opinion in Bruen, Associate Justice Clarence Thomas wrote: “Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

On Thursday, June 30, the Supreme Court released a list of orders that largely cleared…

William Connell Cawthon Jr.

Professional writer. Passionately interested in facts. Founder of