The Constitution and conventional wisdom suggest that lower courts must follow the most persuasive interpretations of U.S. Supreme Court precedent.  But that does not always happen.  Scholars recognize judicial under enforcement of Supreme Court precedent in several fields.  This Essay contributes to this scholarship by analyzing lower court applications of New York State Rifle & Pistol Ass’n v. Bruen, in which the Supreme Court held that firearm laws must be consistent with the nation’s historical tradition of firearm regulation.  The lower courts vary widely in their approaches to analyzing gun laws under this standard.  On one end, a small handful of courts has required near historical twins or tight analogues to uphold challenged regulations.  Other courts feel comfortable upholding modern gun laws based on historical enactments that are only remotely analogous.  Finally, some courts have avoided a historical inquiry entirely by fashioning a “Bruen Step Zero” or by relying on pre-Bruen circuit precedent that they find to be binding.

One impetus for Bruen was judicial under enforcement of the Second Amendment in the decade following District of Columbia v. Heller.  Whether Bruen will experience the same fate remains to be seen.  Accordingly, to ensure that lower courts properly enforce Second Amendment claims, this Essay suggests that the Supreme Court clarify the level of generality that Bruen requires.