In less than a week, the U.S. Supreme Court’s conservative justices have replaced the usual tests for weighing constitutional violations in the arenas of guns, abortion and religion with a history-tradition test that cements their professed belief in originalism, and creates new challenges for judges and litigants.
In the Second Amendment gun case, New York State Rifle & Pistol Association v. Bruen, the 6-3 majority said, a two-step approach to deciding the constitutionality of gun restrictions commonly used by federal appellate courts was wrong. That approach was a combination of history and intermediate, or means-end, scrutiny.
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