This article describes why a constitutional test that relies exclusively
on history and tradition for deciding modern firearm regulations is woefully
inadequate when applied to modern technologies. It explains the unique
advancements in firearm technology — specifically, ghost guns — that
challenge the viability of a purely historical test, even if legal scholars
or judges attempt to reason by analogy. This article argues that the
prevailing, two-step approach, which incorporates both history and
tradition, and requires a judicial examination of the purposes and methods
supporting a challenged firearm regulation, should apply nationwide. That a
dissenting faction of conservative judges seeks to ignore the prevailing
approach presents a potentially dangerous path for Second Amendment
jurisprudence. This article draws from certain historical gun laws to
illustrate the difficult legwork that analogies must do under a purely
historical test. It uses the advent of ghost guns as a case study to offer
guidance for judges in their rulemaking practices regarding Second Amendment
cases.