The Supreme Court handed pro-gun groups a unanimous victory Thursday in Hemani v. United States, ruling that a regular marijuana user cannot be prosecuted under the federal firearms statute 18 USC §922(g)(3). All nine justices agreed on the outcome. But Justices Ketanji Brown-Jackson and Sonia Sotomayor could not resist using the occasion to launch a broadside against the Court's landmark 2022 Second Amendment framework, even though nobody asked them to.
Justice Neil Gorsuch authored the majority opinion. The vote was 9-0. On its face, the decision was a clean win for Second Amendment advocates who have long argued that §922(g)(3) sweeps too broadly. Yet the real news was what Brown-Jackson and Sotomayor tucked into their concurrence: a call to vacate New York State Rifle and Pistol Association v. Bruen, the 2022 decision that reshaped how courts evaluate gun regulations across the country.
That concurrence, filed in a case where neither party asked the Court to revisit Bruen, reads less like a legal opinion and more like a policy memo aimed at a future with different justices.
The concurrence does not hold back. Brown-Jackson, joined by Sotomayor, argued in her separate opinion that the Court should abandon Bruen's history-and-tradition test and return to means-end scrutiny, the balancing framework that lower courts used between the 2008 Heller decision and Bruen in 2022.
"I write separately to emphasize that means-end scrutiny, the approach courts applied before we adopted Bruen's 'history and tradition' metric, offers a more rational way of assessing the constitutionality of firearm regulations. As I and others have elsewhere explained, Bruen is unworkable."
She went on to outline how, under her preferred framework, the Court would weigh the severity of a law's burden on Second Amendment rights against the government's interest in keeping firearms from people who "pose a special danger of misuse." She described these as "familiar questions", a pointed contrast with Bruen's requirement that the government identify a historical analogue for any modern gun regulation it wants to defend.
Brown-Jackson then added a careful hedge, acknowledging that her opinion addressed only "the mechanics of the means-ends test" and not what result it would produce in this particular case. Her reasoning was simple: "neither party asks us to overturn Bruen and apply means-ends scrutiny."
That disclaimer is worth reading twice. If neither party raised the issue, why devote pages of a concurrence to it? The answer is plain enough. Brown-Jackson and Sotomayor are laying groundwork, signaling to litigants, lower courts, and future nominees that two sitting justices consider Bruen ripe for reversal.
This is not the first time Brown-Jackson has used a separate writing to broadcast disagreement with the Court's conservative majority. She has found herself isolated even from fellow liberals on multiple occasions since joining the bench.
Her willingness to press arguments that go well beyond the case at hand has drawn notice. She has taken her complaints about conservative colleagues to public venues like Yale Law School, a move that itself raised questions about judicial temperament and institutional norms.
Sotomayor, for her part, has her own track record. Her willingness to personalize disagreements on the bench has drawn criticism for breaching Court decorum.
Together, the two justices represent the Court's most vocal left flank on firearms. Their concurrence in Hemani follows a pattern: join the result when the law requires it, then use the filing to campaign against a precedent they lack the votes to overturn.
To understand the stakes, it helps to recall what Bruen changed. In June 2022, Justice Clarence Thomas authored the Court's opinion striking down New York's "good cause" requirement for pistol permits. Thomas grounded the ruling in historical gun laws and the debate surrounding ratification of the Fourteenth Amendment, establishing that modern firearms regulations must have a historical analogue to survive constitutional challenge.
The decision replaced the means-end scrutiny framework that lower courts had used since Heller. Under that old framework, judges balanced the government's regulatory interest against the burden on gun owners, a test that, in practice, gave enormous deference to the government.
How much deference? Konstadinos Moros, Director of Legal Research and Education at the Second Amendment Foundation, offered a striking data point. He told the Daily Caller News Foundation that from 2008, when Heller was decided, until Bruen arrived in 2022, the Ninth Circuit "did not strike down a single gun law even though it heard dozens of cases."
Zero. In fourteen years. Dozens of cases.
"The Jackson and Sotomayor concurrence complains that Bruen is 'unworkable' while calling for a return to a standard (means-end scrutiny) that was actually unworkable. As just one example, from when Heller was decided in 2008 until Bruen was decided in 2022, the Ninth Circuit did not strike down a single gun law even though it heard dozens of cases."
Moros did not stop there. He described the pre-Bruen framework as one that "even more strongly favored the government and drifted massively from the original intent behind the adoption of the Second Amendment."
"Perhaps that's what Justice Jackson and Sotomayor would prefer, but it was not a 'workable' status quo for a meaningful Second Amendment."
That is the core tension. Brown-Jackson calls Bruen "unworkable." Gun-rights advocates say the old test was the one that didn't work, unless you define "workable" as a framework that lets the government win every time.
One detail worth flagging: Justice Elena Kagan did not join the Brown-Jackson and Sotomayor concurrence. Moros noted the absence in a post on X, writing that it was "interesting that Kagan did not join the Jackson/Sotomayor dissent that calls for overturning Bruen and moving back to tiered scrutiny."
Moros also observed that Brown-Jackson and Sotomayor stopped short of calling for Heller itself to be overturned, or questioning "the core individual right" recognized in that 2008 case. For those tracking how far the Court's left flank is willing to push, that restraint, if it can be called that, is worth watching.
Reports have painted a broader picture of tensions among the liberal justices behind the scenes. Accounts of hostility toward clerks and staff suggest the friction is not limited to published opinions.
Kagan's decision to stay off the concurrence may reflect a strategic calculation. Joining a call to vacate Bruen in a case where the question was never briefed or argued would be an unusual step, even by the standards of a Court that has grown more comfortable with sweeping separate writings.
The Hemani ruling itself is a straightforward win for gun-rights organizations. A unanimous Court agreed that §922(g)(3) cannot be used to prosecute a regular marijuana user for firearms possession. The decision narrows the reach of a federal statute that Second Amendment groups have long challenged.
But the concurrence ensures that the legal fight over Bruen's framework is far from settled. Brown-Jackson and Sotomayor have now put on the record, in a published Supreme Court opinion, their view that the history-and-tradition test should be replaced. That language will be cited by litigants, quoted by law professors, and waved before Senate Judiciary Committee members the next time a Supreme Court vacancy opens.
The Court still has another Second Amendment case on its docket this term. Wolford v. Lopez is slated for decision before the current session ends. The details of that case were not addressed in the Hemani opinion, but its mere presence on the calendar means the justices will have at least one more opportunity to revisit, or relitigate, the boundaries of Bruen.
Brown-Jackson's concurrence also raises a procedural question that deserves honest scrutiny. She acknowledged that neither party asked the Court to overturn Bruen. She volunteered the argument anyway. In a judicial system built on the principle that courts decide the questions presented to them, that kind of freelancing invites a fair question: Is the concurrence legal analysis, or is it an open letter to the next Democratic president's shortlist?
Brown-Jackson frames the debate as one about which legal test is more "rational" and "straightforward." But workability is not an abstract concept. It has a track record. And that track record, at least in the Ninth Circuit, produced fourteen years of unbroken government wins on every gun case that came through the door.
A test that never constrains the government is not a constitutional standard. It is a rubber stamp. Bruen replaced that rubber stamp with a requirement that the government do what the Constitution demands: show that a modern regulation fits within the historical tradition of the right it burdens.
Brown-Jackson and Sotomayor may call that "unworkable." Gun owners who spent fourteen years watching courts wave through every restriction on their rights have a different word for it: overdue.
Nine justices agreed on the outcome in Hemani. Only two felt the need to use a win for gun rights as a vehicle to undermine the very framework that made the win possible. That tells you everything about where the real threat to the Second Amendment sits.
