Recalibrating Bruen: The Merits of Historical Burden-Shifting in Second Amendment Cases

Authors

Kevin G. Schascheck II

Abstract

After Bruen, the prevailing assumption was that the Second Amendment framework shifted radically for all gun laws. Courts throughout the country have already invalidated key gun safety statutes while applying the new test. However, such holdings fail to grapple with the full weight of Second Amendment doctrines. A proper application of the doctrine in toto will result in no significant changes to the constitutionality of the vast majority of gun laws after Bruen.

This Article explains the underdeveloped interaction between two principal Second Amendment doctrines - presumptions of legal validity and historical analyses. That interaction, framed in its simplest terms, is that the presumption acts either conclusively or as a burden-shifting device when considering historical evidence. By making explicit the procedural assumptions in Second Amendment cases, courts applying a historical burden-shifting approach will reduce the political pressures inherent int he doctrine and maintain the constitutionality of most gun safety laws.

Recommended Citation

Schascheck, Kevin G. II (2023) "Recalibrating Bruen: The Merits of Historical Burden-Shifting in Second Amendment Cases," Belmont Law Review: Vol. 11: Iss. 1, Article 2.
Available at: https://repository.belmont.edu/lawreview/vol11/iss1/2