I sat on a panel at the Federalist Society’s 2025 National Lawyers Convention this November with Professor J. Joel Alicea of Catholic University Law and Professor Eric Ruben of SMU, moderated by Third Circuit Judge Paul B. Matey. The panel was titled “The Viability of Bruen: Challenges and Applications,” and I want to share Professor Alicea’s contribution because it is the cleanest articulation of how Bruen step two should actually work that I have heard from any scholar. Alicea is a former Alito clerk and the St. Robert Bellarmine Professor of Law at Catholic. When Wolford v. Lopez, No. 24-1046, is decided, every 2A litigator in the country is going to want the framework he laid out in this thirteen-minute presentation.
Bruen’s Two-Step, In Plain English
Alicea opens by re-stating the methodology that New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), prescribes — because, as he notes, even what Bruen requires has become “a topic of contestation in the lower courts and among scholars.” Step one is textual: is the rights claimant part of “the people,” is the object an “arm,” and is the conduct “keep[ing] or bear[ing]” an arm? If all three boxes are checked, the conduct is presumptively protected and the burden shifts to the government.
Why does the burden shift? Alicea’s answer is important and often missed:
Bruen seems to be presupposing that the textual description of the right is very good prima facie evidence of what the contours of the underlying natural right as understood in our law in 1791 were. And so insofar as you have a violation of the text, that’s at least presumptive evidence of violation of the underlying right.
In other words, the text is not the right itself — it is the codification of a pre-existing natural right. That framing is straight out of District of Columbia v. Heller, 554 U.S. 570 (2008), and it sets up everything Alicea says next.
Traditions Are Principles, Not Practices
At step two, the government must show its modern regulation fits within “the historical tradition of firearms regulation.” Alicea makes a move here that I want every 2A litigator and every district judge to internalize:
Traditions are reflected in practices but they are not reducible to practices… what traditions consist of are principles that unite and explain the different practices.
The Ninth Circuit and other hostile courts have been trying to operate Bruen as a matching game — find a colonial-era statute that looks like the modern one. Alicea’s point is that this misreads the methodology. The historical statutes are evidence of underlying principles; they are not themselves the constitutional standard. Bruen’s “how and why” inquiry exists precisely to extract those principles.
The Level-of-Generality Problem
This is where Alicea makes his signature contribution. Every originalist methodology runs into the level-of-generality problem: how abstractly do you describe a historical analog? He gives a deliberately silly example — imagine a colonial law enacted on a Tuesday. Is that legally relevant? Obviously not. But why obviously not?
His answer is that the legally relevant features of the historical tradition are those that pertain to the underlying right itself. He calls these substantive features. Everything else — the day of the week, the legislature’s name, the color of the ink — is an incidental feature: part of the record, but not legally cognizable.
The practical stakes are enormous. The higher the level of generality at which you describe the tradition, the more likely the government wins, because almost any modern restriction will fit some abstract description of “regulating arms.” The more substantive features you require the modern law to match, the harder the government’s burden becomes. The doctrine has to give judges a principled way to sort substantive from incidental, or step two collapses into outcome-driven hand-waving.
How Judges Actually Sort Substantive From Incidental
Alicea’s solution is to immerse the judge in the normative and political premises of the founding era — 1791 (or 1868 for incorporation, an open question the Court has not yet resolved) — and reason forward from those stipulated premises to which features matter. He argues this is not exotic or novel:
It’s very similar to what I’m describing… instead of cases, we have historical materials that are supplying those premises and principles to evaluate the features.
That is exactly the analogical reasoning judges already do every day with precedent. The premises come from somewhere outside the judge (prior caselaw, or here, founding-era materials), and the judge applies them to a new fact pattern. Bruen step two is not the radical new exercise its critics paint it as. It is common-law reasoning sourced from history.
Wolford v. Lopez as the Worked Example
Alicea then applies the framework to the case the Supreme Court has agreed to hear: Wolford v. Lopez, No. 24-1046, the challenge to Hawaii’s “vampire rule” requiring express permission from a landowner before a license-holder can carry on private property generally open to the public. The Ninth Circuit upheld Hawaii’s law largely by analogy to historical anti-poaching statutes.
Here is where the substantive-vs-incidental distinction does real work. The Ninth Circuit had to ignore two features of those anti-poaching laws: (1) they targeted carrying for the specific purpose of poaching game, and (2) they generally applied to land that was not otherwise open to the public. Strip those features out as “incidental” and Hawaii’s law fits the tradition. Treat them as substantive and it doesn’t.
Alicea’s test asks which choice respects the founding-era premises. There is abundant historical evidence that the Second Amendment right was not to be interpreted in a way that effectively nullifies public carry. If you set the level of generality so high that Hawaii’s near-total ban on private-property carry qualifies as “consistent with tradition,” you have already eviscerated the principle the founders codified. Therefore the poaching purpose and the not-open-to-the-public character of those colonial laws must be substantive features. Hawaii loses at step two.
Why This Framework Matters Going Forward
I think Alicea nails it because his framework gives lower-court judges something they have been desperate for since Bruen came down: a principled, non-arbitrary way to decide how closely a modern law has to match a historical analog. Without that tool, hostile courts have been free to crank the level of generality up to whatever altitude is needed to save the modern restriction. Substantive vs. incidental features is the doctrinal lever that pulls them back to earth. Litigators briefing Wolford, and every step-two case after it, should be using this vocabulary.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.