This post is based on a paper that was presented at the 2026 Firearms Law Works-In-Progress Conference. The Conference is held each year on a home-and-away basis with the University of Wyoming Firearms Research Center. This post also appears on the FRC’s Forum. This guest post does not necessarily reflect the views of the Duke Center for Firearms Law.
Constitutional rights adjudication actually involves two distinct inquiries, which the late, great Fred Schauer called coverage and protection. Coverage asks whether a right is even “in play”—whether the claimant’s conduct is the kind of thing the right is about. If so, protection asks whether the government can nonetheless regulate the covered activity.
The First Amendment makes this distinction easy to see, in ways with which most people are familiar. Perjury, fraud, threats, blackmail—these are all carried out through language, but they aren’t speech within the meaning of the Free Speech Clause. The government need not satisfy any particular First Amendment scrutiny to regulate language falling into one of these buckets. By contrast, political protests are very clearly within the scope of the right, which means the government can regulate those protests only if it satisfies a relatively demanding test focused on the strength of the government’s interest in doing so and the narrowness of its regulation.
In short, because, as Schauer put it, “not every case is a First Amendment case,” you need a methodology—a coverage doctrine—for deciding which cases are First Amendment cases. So too with every individual constitutional right. Students don’t get jury trials before receiving detention; red lights and stop signs aren’t Fourth Amendment “seizures”; taxes aren’t takings. Each of these issues is determined by the right’s scope of coverage.
My work-in-progress explores a puzzle at the heart of Second Amendment jurisprudence: where is the coverage doctrine? It has been nearly two decades since the Court’s decision recognizing an individual Second Amendment right in Heller. The Supreme Court and lower courts alike routinely publish hundreds of pages of methodological debate in Second Amendment cases. Yet the scope of the Second Amendment right remains murky—we lack answers to what “arms” are protected; who is included within “the people” to which the Amendment refers; and where the right applies. Indeed, even the most fundamental question—how we answer coverage questions—does not have a satisfying answer.
I ask how and why this has happened, and explore what this doctrinal dead zone means for the law.
I. A Brief History of Second Amendment Coverage
The story, unsurprisingly, begins with Heller. There, the Court explicitly disclaimed the obligation to specify the full scope of the right. But the Court provided a list of “presumptively lawful” regulations—things like restrictions on possession in schools, by felons, and of dangerous and unusual weapons. The list suffered from several serious conceptual defects, but chief among them was the absence of any sort of coherent underpinning. The Court called them “longstanding,” but many in fact weren’t. They had no obvious basis in the text of the Amendment or in the originalist reasoning the Heller majority was otherwise applying. These were, per Carlton Lawson, “exceptions in search of a theory.”
Theoretical defects aside, they became a cheat sheet for lower courts. Within its scope, this “Heller List” offered lower court judges the primary benefit of coverage doctrine—the efficient disposition of claims that only peripherally implicated a constitutional right. And so it is hardly a surprise that the Heller List would become, in the period between Heller and Bruen, Heller’s most-cited passage. (The federal judges yearn for a coverage doctrine!) But this gave rise to two unintended consequences:
First, the cheat sheet inhibited the independent development of coverage doctrine. Without a coherent methodological foundation—a formula that generated the List’s specific answers—the List was limited to its terms. Federal courts could easily dispose of cases involving “felons and the mentally ill,” but violent misdemeanants, undocumented immigrants, and 18-to-20 year-olds posed questions that the Heller List didn’t answer. In those cases, the federal courts of appeals quickly reached consensus around a preferred approach: assume coverage, and move on to protection. Thus, with startlingly few exceptions, in the fourteen years between Heller and Bruen, the lower federal courts made almost no new law on the question of the Second Amendment’s scope.
Second, including lots of marginal or peripheral activity under the assumed coverage of the Amendment exerted a “hydraulic” weakening effect on the Amendment’s protection doctrine. The Second Circuit’s 2021 decision in United States v. Perez is a perfect example. There, an undocumented immigrant was charged with illegal possession after he fired a gun in the air to break up a fight. Rather than deciding if undocumented immigrants fall within the scope of the Second Amendment, the Second Circuit assumed so, and then upheld Perez’s conviction under a deferential standard of review. Judge Menashi, concurring only in judgment, argued that Perez’s conduct was the kind of self-defense behavior at the core of the Second Amendment right, and deserved much stronger protection than that provided by intermediate scrutiny. The failure to exclude Perez at the coverage stage, Menashi argued, therefore “watered down” the strength of the right as, he argued, rightfully limited to American citizens.
In this way, the failure to develop coverage doctrine contributed to the weak protection doctrine that constituted a perceived maltreatment of the Second Amendment. That, in turn, led to Bruen, in which the Court announced a dramatic shift in Second Amendment protection doctrine, intended to generate a more gun-friendly jurisprudence. At the protection stage, Bruen announced, gun laws must be measured against the nation’s “history and tradition” of firearms regulation.
II. The Other Bruen Test
But Bruen also announced a coverage rule. One need only turn to history and tradition, the Court said, after finding that the Second Amendment’s “plain text covers [the claimant’s] conduct.”
Unfortunately, the Second Amendment is not written with the precision of self-executing code, and its text raises more questions than it answers. Are felons, the mentally ill, noncitizens, twenty-year-olds, violent misdemeanants, etc. included in “the People”? Are large capacity magazines (LCMs) “Arms”? What about silencers? Machine guns? Can you “keep and bear” arms in a school? A courthouse? The Amendment’s “plain text” raises every coverage question Heller left open and offers clear answers to none of them. Bruen’s coverage test, in short, is less a methodology than the place a methodology is supposed to go.
Silence would be one thing, but Bruen made matters worse by combining methodological silence with analytical mess. The Court appeared to embrace some not-in-the-plain-text parts of the Heller List as coverage-stage inquiries—for example, by noting that the challengers in that case were “ordinary” and “law-abiding” (as opposed to felons or the mentally ill, presumably) and that their guns were not dangerous or unusual (nor the circumstances under which they possessed them). But a different part of the Heller List—the “sensitive places” rule—was instead analyzed as part of the Court’s protection-stage “history and tradition” test. And the rest of the justices in the majority notably declined to join a concurrence by Justices Roberts and Kavanaugh asserting that Bruen did not call the Heller List into question. Thus, after Bruen, Second Amendment coverage doctrine was actually less clear than it was after Heller, as Bruen opened a new host of questions about the continued viability and treatment of the Heller List, as well as about the status of pre-Bruen, circuit-level precedent that relied on the List.
III. A Brief History, Continued
In light of this, it is perhaps unsurprising that the development of coverage doctrine remains stunted, and whatever happened in Bruen is almost entirely irrelevant to it. Lower courts still routinely assume coverage without deciding, as the Eleventh Circuit did with 18-20 year-olds in NRA v. Bondi (2025); the First Circuit did with assault weapons in Capen v. Campbell (2025); and the Tenth Circuit did with undocumented immigrants in United States v. Duque-Ramirez (2025). Others continue to apply the Heller List, sometimes even going so far as to assert that “the two-part test announced in Bruen does not apply to a law restricting a felon’s possession of a firearm.” People v. McTizic, (Ill. App. Ct. 2025).
Others actually have started to develop coverage doctrine, albeit doctrine that bears no discernible relationship to a “plain text” analysis. For example, in upholding New York’s law requiring a background check for the purchase of ammo, the Second Circuit in 2025 concluded that because the law was a “condition and qualification on the commercial sale of arms” (part of the Heller List), it would ask whether the law “meaningfully constrained” the Second Amendment right, and concluded that a short delay to purchase ammo did not do so. N.Y. State Firearms Ass’n v. James.
For its part, the Supreme Court has contributed nothing meaningful since Bruen. In Rahimi, the Court confronted a Second Amendment challenge by an individual who had been adjudicated dangerous under a domestic violence restraining order. Whether individuals like Rahimi were covered was within the scope of the questions presented for review at the Court and was the subject of a split in the lower courts. Yet, in seven separate opinions totaling 100 pages, coverage received a single brief, non-load-bearing mention in a concurrence. In June’s Hemani, the Court simply asserted that “§ 922(g)(3)’s unlawful user provision burdens conduct presumptively protected by the Second Amendment” and moved on.
Then along came Wolford, in which coverage actually was meaningfully debated. Remarkably, Justice Alito’s majority opinion doubled down on Bruen: “plain text” means plain text and only plain text—not even history can come in at the coverage stage, which is limited to deciding if the individual’s conduct falls into the “literal language” of the right—possessing or carrying a gun. If we are to take this articulation of Bruen step one literally, its upshot, when combined with Bruen’s burden-shifting framework, is that in any case in which “a gun owner cannot do what she wants with her firearm,” the government’s action is presumptively unconstitutional.
IV. Constitutional Hydraulics
The failure to develop a coherent coverage methodology has consequence, beginning with the burden-shift described immediately above. Presumptive unconstitutionality is relatively rare in American constitutional law; but, taking Wolford seriously, it appears to now be the default rule for any and every gun law, as well as for any and every individual prosecution or other negative government action based in any part on possessing or carrying a gun.
The problem is not necessarily that I think there’s going to be rash of gun laws overturned that otherwise wouldn’t be; my concern is actually closer to the opposite. Many courts are unwilling to strike down broad swaths of gun regulation, presumption of unconstitutionality notwithstanding. But after Bruen and Wolford, they don’t have coverage doctrine to help them eliminate weak claims. Instead, they have nowhere to turn to but Bruen’s history-and-tradition test—so to uphold the laws they are unwilling to invalidate, they will have to bend that test instead. The protection inquiry will absorb the work that coverage should have done, and it will buckle under the load.
This is the “hydraulic” effect that Judge Menashi bemoaned in Perez, but at scale. American constitutional rights traditionally are strong because they are narrow. The Second Amendment right is now keyed to its textual maximum, and many broadly popular regulations will now be subject to presumptive unconstitutionality and the “history and traditions” test. What will emerge from this reshaped right?
The answer, I think, looks like Rahimi itself. There, the Court did obvious violence to Bruen’s historical method—as Bruen’s author pointed out in dissent—in order to sustain a conviction that no one (save Justice Thomas, willing to bite the methodological bullet) wanted to overturn. Rahimi took Bruen’s method and made it both less protective and less predictable. In fact, it made it look a lot like intermediate scrutiny—the very test that Bruen set out to purge from Second Amendment doctrine. It’s not hard to imagine similarly questionable applications of Bruen’s methodology as laws previously covered by the Heller List are increasingly forced into that test.
Which raises an obvious question. No one on any side of the gun debate wants a broader, weaker, and less predictable gun right, all consequences of an underdeveloped coverage doctrine. So why is this the path we’ve taken? There is one beneficiary of the vacancy: the Court itself. Coverage doctrine, by definition, consists of rules capable of deciding more than a single case. A Court that announces such a rule eliminates the legal ambiguities that produce and incentivize litigation, minimizes the opportunity for circuit splits, and at least theoretically binds its own hands. The absence of coverage doctrine therefore serves well an “imperial” Court that appears focused on maximizing its own authority.
