“Guns don’t shoot, people shoot.”
President Trump vows to defend Second Amendment: “These things are terrible, but you can’t shoot them. It’s the people who shoot them. It’s, you know, words.”
WASHINGTON – The Supreme Court, often ideologically divided on gun control issues, unanimously agreed on June 18 to rule that a federal law aimed at keeping guns out of the hands of dangerous people goes too far.
But two of the court’s three liberal justices still want to change course on how the court evaluates gun control.
Justice Ketanji Brown Jackson said the test for the “historical tradition” of gun control established by the court in its landmark 2022 decision in New York State Rifle Association v. Bruen is “unworkable.”
Instead of evaluating whether gun control is a legitimate way to address modern problems, judges must sift through centuries of evidence to find earlier laws that are roughly equivalent, she wrote in a concurring opinion joined by Justice Sonia Sotomayor.
For example, in a case decided on June 18, Justice Neil Gorsuch cited the drinking habits of the Founding Fathers as evidence that historic laws restricting the rights of heavy drinkers are incompatible with modern laws that criminalize marijuana users’ possession of guns.
“If habitual drinking laws had applied simply to people who drank regularly, many prominent early Americans might have been in trouble,” he wrote.
Jackson agreed with that reasoning, but said the test itself was bad. He said the court should consider “whether to abolish the failed bruene experiment” in future cases.
The court, with a 6-3 conservative majority, split along ideological lines in ruling Bruen in a case expanding the Second Amendment’s right to bear arms outside the home.
Two years later, all but Justice Clarence Thomas signed an opinion making it easier to apply the historical tradition test.
However, lower courts continue to struggle with its application.
The justices could offer further guidance in a pending ruling regarding a Hawaii law that requires gun owners to obtain a permit before taking firearms into stores and other private property open to the public.
During oral arguments in January, the majority appeared ready to rule that the law fails the test of historical tradition.
But the fact that Thursday’s decision in favor of drug users was relatively narrow may also allow the justices to limit the impact of the Hawaii decision, said Hayley Proctor, an associate professor at the University of Notre Dame School of Law who specializes in Second Amendment issues.
Proctor said the Hawaii ruling, expected by the end of this month, may not significantly change the court’s review of gun regulations.
For example, judges may offer less guidance as to whether there are other ways states can prohibit the use of firearms in “sensitive” public places such as parks or public transportation.
“Meanwhile, lower court decisions regarding ‘sensitive places’ laws have been issued all over the world,” Proctor said. “While they universally recognize that the government may ban firearms in sensitive areas, they disagree on why a location is ‘sensitive.’
Jonathan Lowy, president of Global Action on Gun Violence, said Jackson was right that judges are not equipped to play historians and that the Bruen test should be abolished.
“The court was right to hold that eating a gummy before bed shouldn’t automatically disqualify you from using a gun, but that’s because of the 2026 view on marijuana use, not the 18th and 19th century laws that now determine the fate of all gun control,” he said in a statement. “21st century gun violence cannot be solved with 18th century solutions.”
