With the justices now on summer recess, let’s take a minute to reflect on the term and its impact on the Second Amendment. As a reminder, the court heard two Second Amendment challenges this time around: United States v. Hemani and Wolford v. Lopez. These cases mark the first time since the court recognized an individual right to own a firearm for self-defense in District of Columbia v. Heller that the justices have decided more than one Second Amendment case in a single term.
The first Second Amendment decision we got was Hemani, decided on June 18, where the justices unanimously held that the federal government could not prohibit someone who admitted to using marijuana every other day from possessing a firearm. The government offered “habitual drunkard” laws in support of the federal regulation to demonstrate that the law was consistent with a historical tradition of firearm regulation. At the founding, the government contended, there was a practice of disarming individuals who drank so much as to fall under that category – which they asserted was analogous to drug users like Hemani. The court disagreed – with Justice Neil Gorsuch writing for the majority that such laws “targeted different kinds of people, did so for different reasons, and operated in different ways.”
A week later, the justices announced their opinion in Wolford v. Lopez. In a 6-3 decision, the court struck down a Hawaii law that made it illegal for anyone to bring their firearm onto private property open to the public without explicit consent from the property owner. Justice Samuel Alito, writing for the majority, held that the Hawaii law implicated the “plain text of the Second Amendment,” and that, because the government failed to produce “relevantly similar” historical analogues in support of the law, it too violated that amendment.
As a quick reminder, in 2022 the Supreme Court rejected the means-end scrutiny mode of analysis that many of the lower courts had adopted in the years following Heller, in which they weighed the government’s justification in passing the law against the right being burdened. In New York State Rifle & Pistol Association v. Bruen, the justices recognized a different framework for analyzing Second Amendment challenges, and this is what was applied in both Hemani and Lopez. Under this framework, courts must first ask whether “the Second Amendment’s plain text covers an individual’s conduct.” If the answer is no, the analysis comes to an end. If the answer is yes, the conduct is “presumptively protected” by the Constitution. The government must then show that the regulation “is consistent with the Nation’s historical tradition of firearm regulation.” If the government can satisfy this burden, then the regulation is enforceable consistent with the Second Amendment. If not, it will be struck down as unconstitutional.
But let’s unpack that.
Bruen’s step one “plain text” inquiry
Up until recently, we have not had much guidance on what the “plain text” analysis at step one of Bruen’s history and tradition framework was supposed to look like. In Wolford, Alito clarified that this inquiry consists of three questions: (1) “does the law apply to ‘the people’—which is to say, ‘all members of the political community’?”; (2) “does it concern any form of “Arms,” which he defined as “any weapon customarily used for offensive or defensive purposes’?”; and (3) “does the law place any restrictions” on the keeping or bearing of arms?
Taking these in questions order, the first reveals next to nothing about who counts as part of “the people” – we already knew from Heller that this group was limited to “members of the political community” (for what that means, see my earlier piece). Alito’s description of “Arms” (which I have written about here) also went unchallenged.
The final part of the inquiry was a bit more interesting. According to the opinion, if the law places any restriction on the keeping or bearing of arms then this threshold has been met. While that may seem underwhelming, lower courts have not conducted the plain text analysis quite that way. For example, the U.S. Court of Appeals for the 4th Circuit rejected a challenge to Maryland’s handgun qualification license requirement because plaintiffs had not demonstrated that the law “infringe[d]” or “effectively denie[d]” the right to keep and bear arms. Relatedly, the U.S. Court of Appeals for the 9th Circuit held that “laws imposing conditions and qualifications on the sale and purchase of arms do not implicate the plain text of the Second Amendment” because Heller carved out this category of regulations as “presumptively lawful.” Alito’s language would seem to throw these rulings into doubt.
This reading is further enforced by Justice Amy Coney Barrett’s concurrence, in which she characterized – in a footnote – the disagreement between the majority and dissent as being over “whether courts can smuggle additional limits, drawn from our regulatory tradition, into the plain text stage of the inquiry.” According to Barrett, “[t]he answer is and always has been no.”
Bruen’s step two historical analysis
As noted above, if step one is satisfied (that is, the conduct at issue is covered by the Second Amendment), the court moves on to step two, in which the government must show that the regulation being challenged “is consistent with the Nation’s historical tradition of firearm regulation.”
At the outset, one question that the court again declined to answer in both Hemani and Wolford is whether the “historical tradition” being considered dates back to 1791 or 1868. The Bill of Rights, including the Second Amendment, was ratified in 1791, but – at that time – this only applied to the federal government. As held by the court in McDonald v. City of Chicago, with the passage of the due process clause of the 14th Amendment in 1868 the Second Amendment came to apply to the states. So which date should count? For now, we don’t know.
Moving on to the substance of the analysis, Wolford divides the second step into three more inquiries. First, Alito explains that when considering whether there exists a historical tradition, one may look to see if there is a “historical analogue” to today’s regulation. When assessing a historical analogue, courts should initially consider “the number of jurisdictions in which [the analogues] were adopted.” In Bruen and again in Wolford, the majority cautioned that “[a]n outlier legal rule adopted in a few locales” is not going to be sufficient to demonstrate a historical tradition (though just how many such rules are necessary to have existed the court left unresolved).
The second and seemingly interrelated inquiry that Alito lays out is “the extent to which [the analogues] were well-accepted.” Courts may find that there was express acceptance through studying judicial decisions construing such laws, or such acceptance may be implied – as when a firearm regulation was “open, widespread, and unchallenged.”
The final question that a court must answer is whether the analogues are “‘relevantly similar’ to the modern law.” That is, a court needs to assess “how” and “why” the historical analogue restricted the Second Amendment right and ensure that these two reference points are “sufficiently similar.” In Wolford, the court cautions that this will not be a “mechanical” determination but rather requires “an exercise of judgment.”
In Hemani, for example, the court found that the government’s analogues had not met this standard because habitual drunkard laws “targeted different kinds of people [than casual marijuana users], did so for different purposes, and operated in different ways.” So, we know that a historical analogue cannot differ on all three of these points. But the justices declined to decide whether any one of these differences on their own “would prove fatal to the government’s cause.”
Wolford provides one more piece of information about how to conduct this historical analysis. In defense of its law, Hawaii cited an 1865 Louisiana statute which made it generally illegal for anyone to carry a firearm onto another person’s property without their express consent. The majority concluded that this law “carries no weight” because it was “neither widespread nor widely accepted.” But the opinion did not stop there. The law, Alito explained, was enacted as part of the “so-called Black Codes” that confederate states used “to perpetuate the subjugation of blacks” between the end of the Civil War and the beginning of the Reconstruction era, used as “a tool for disarming” this population of people. Because “the Republicans in Congress who were responsible for drafting, approving, and securing the ratification of the Fourteenth Amendment” were well aware of the importance of the right to keep and bear arms for black individuals at this time, “Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.”
Yet the majority does not explain how to evaluate the pedigree of similar history going forward. As Justice Ketanji Brown Jackson asked in her dissent, “how [is] one is to go about accurately identifying such a verboten law”? That question is not just academic: it may well emerge again, perhaps in cases involving felon disarmament where lower courts have routinely relied on historical laws disarming categories of people such as Native Americans and religious minorities as a basis for upholding the modern felon-in-possession prohibitions.
The 2026-27 term and beyond
Although Hemani and Wolford provide more information about how to apply Bruen’s history-and-tradition analysis, many questions remain, among them whom the right protects and how far it extends. While we do not know exactly what the next term holds at this point, we do know that we will have more answers to at least one of these questions: what counts as an “Arm” for the purpose of the Second Amendment. On June 30, the justices issued an orders list from their “clean-up conference” which included a cert grant in Viramontes v. Cook County and Grant v. Higgins (these two cases have been consolidated). In those cases, the justices will consider whether the Second Amendment protects the right to possess semiautomatic rifles such as AR-15s.
In the same orders list, the justices declined to hear a number of cases about the constitutionality of restrictions on the ability of individuals under the age of 21 to acquire or possess firearms. Justice Clarence Thomas indicated he would have granted review in West Virginia Citizens Defense League v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, which involves a challenge to the federal law that bans the commercial sale of handguns to such persons. Thomas may not have gotten his way – for now – but it is only a matter of time before the court addresses some of the many other lingering questions in this rather fraught area.
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