Home > Journals > WMLR > Vol. 67 (2025-2026) > Iss. 6 (2026)
William & Mary Law Review
Abstract
In 2022, in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court revolutionized the Second Amendment, achieving the long-held conservative goal of limiting gun restrictions by imposing an expansive, originalist view of the right to bear arms. However, within just three years, Bruen is showing cracks. Lower court judges are struggling mightily to apply it and are expressing their frustrations in exceptionally frank ways. And already the Supreme Court, in Rahimi v. United States, was forced to reconsider its approach. The Court has been here before, when it tried to revitalize the Tenth Amendment in the 1970s in National League of Cities v. Usery. As in Bruen, Usery attempted something doctrinally ambitious: to impose a broad, amorphous prohibition on congressional interference with “traditional government functions.” Then, too, lower courts tried and failed to give principled and workable meaning to that ambitious test. Within a decade, Usery was overruled as unworkable.
This Article details how difficult lower courts have found applying Bruen and how contradictory the resulting outcomes have been. It also shows just how reminiscent this difficulty is of the jurisprudential confusion and frustration of lower court judges endeavoring to give meaning to the new balance of state and federal power that Usery attempted to create. The lessons of Usery for the Bruen Court, however, are complex. Usery failed, but the Rehnquist Court eventually forged a more focused, less ambitious path for reanimating the Tenth Amendment that proved lasting. But that compromise was led by the sort of ideological moderates and methodological pragmatists who no longer dominate the current Court. Bruen may suffer the same fate as Usery due to its doctrinal ambiguities and practical infirmities. If so, whether the Roberts Court can mimic the “Rehnquist Revolution” and enshrine its vision of the Second Amendment in a lasting and workable way may hinge on whether the Bruen Justices can learn from their conservative brethren’s experiences in Usery and its aftermath. This Article outlines four possible paths forward, one of which is unique in being both principled and practical given the political realities of the current Court.