'What kind of odd, elite parlor game is happening?'

Still, the historical test was robustly applied in the June decisions.

“What we see is the justices sort of tacking back and forth, trying to make this Bruen history and tradition test work across the spectrum of gun rights and regulation questions that come up,” said Darrell Miller, a University of Chicago law professor and Second Amendment expert.

Miller agrees with Jackson’s criticisms that the test has not delivered on its promises of being simpler to apply and more constraining on the ability of judges to reach their preferred outcome compared with the previous approach of analyzing whether a restriction was sufficiently tailored to a modern policy goal.

Plus, the debates about historical analogies can leave observers scratching their heads, he said.

“When they come down with decisions that ask questions like, `Is a modern jet airplane more like a horse, or is it more like a carriage, or is it more like a boat?,’ I think people that are paying attention just feel a little bewildered,” Miller said. “It’s like, `What kind of odd, elite parlor game is happening up there?’”

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