History and tradition test

The history-and-tradition test asks courts to decide certain constitutional questions by looking at how the nation has understood and regulated the right at issue, rather than by weighing modern interests under tiers of scrutiny.

Its best-known application is in New York State Rifle & Pistol Association v. Bruen (2022). The Court held that when the plain text of the Second Amendment covers conduct, the government must justify a regulation by showing it is consistent with the nation's historical tradition of firearm regulation, and courts may not use means-end balancing such as intermediate scrutiny. United States v. Rahimi (2024) clarified that a modern law need only be "relevantly similar" to historical ones, not a "historical twin." A similar approach appears in Dobbs v. Jackson Women's Health Organization for unenumerated rights and in the Establishment Clause after Kennedy v. Bremerton.

Supporters, often originalists, say it constrains judges by tying decisions to evidence. Critics argue it asks judges to act as historians, that historical records are incomplete and contested, that lower courts have applied it inconsistently, and that it may be poorly suited to modern technology such as automatic weapons or ghost guns.