* * *

Before Bruen, the Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), defined our approach to resolving Second Amendment challenges to firearms restrictions. Those cases established that the Second Amendment "protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." McDonald, 561 U.S. at 780, 130 S.Ct. 3020 (plurality). The right was not, however, "unlimited." Heller, 554 U.S. at 626, 128 S.Ct. 2783. Nodding to commentators from "Blackstone through the 19th-century cases," the Court acknowledged that some firearms restrictions could pass constitutional muster. Id.

Every circuit court responded to Heller by developing the same two-step test. See Bruen, 142 S. Ct. at 2126-27. At the first step, the government could defend the challenged restriction by showing that the regulated activity fell outside the scope of the Second Amendment as originally understood. See, e.g., Ezell v. City of Chicago, 846 F.3d 888, 892 (7th Cir. 2017). If history proved inconclusive or suggested the regulated activity was not "categorically unprotected," we then conducted a means-end analysis, weighing the severity of the regulation against the ends the government sought to achieve. See id. (quoting Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011)).

Bruen leaves no room for doubt: text and history, not a means-end analysis, now define the controlling Second Amendment inquiry. See 142 S. Ct. at 2131 (emphasizing that, although "judicial deference to legislative interest balancing is understandable -and elsewhere, appropriate-it is not deference that the Constitution demands here [under the Second Amendment]"). Accordingly, when the Second Amendment's "plain text" covers the regulated conduct, the government has only one way to defend the regulation-by proving that it is "consistent with this Nation's historical tradition of firearm regulation." Id. at 2126.

Atkinson v. Garland, 70 F. 4th 1018 (7th Cir. 2023)