Jackson's Concurring Opinion in Hemani Case Makes Laughable Argument Against Bruen
The Supreme Court decision in NYSRPA v. Bruen is probably the most important ruling the Court has made on the Second Amendment in history. While Heller and McDonald are critical as well, the Bruen test is a simple, straightforward test that can and should be easily applied to gun control laws. Did something like that exist at the time of the nation's founding? Was there something like it during the time of incorporation? No, then knock it off.
But while the Hemani decision was ultimately unanimous, Justice Kentaji Brown Jackson wrote a concurring opinion, along with Justice Sonya Sotomayor, arguing that the Bruen decision needs to be revisited.
Along with Justice Sonia Sotomayor, Jackson is advising the court to review its 2022 ruling in New York State Rifle & Pistol Association v. Bruen.
Jackson and Sotomayor said the 2022 decision is “unworkable” and that the court may need to “retire the failed Bruen experiment.” That test, according to Jackson, is based on centuries-old evidence that may not be relevant to today’s legal questions.
“It imposes on judges the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer ‘contested historical questions,’ and ‘applying those answers to resolve contemporary problems,'” Jackson said in her opinion, per Law & Crime.
“Given those challenges, it is unsurprising that Bruen’s test is vulnerable to inconsistent and arbitrary application, as judges draw different conclusions from the same historical evidence and reach divergent assessments of the same laws.”
I find it interesting that Jackson and Sotomayor seem to think that applying history to whether something would align with the Founding Fathers' intentions is problematic for "contemporary problems." Never mind that we still look at their intentions on, say, the Fourth Amendment as it relates to your cell phone data or what's on your laptop. The historic norms were that your person and your property were largely off limits without a warrant. While frisking was one thing--the things in your pocket, for example--it was easy for the Court to decide that your cell phone was a different thing.
Why is it that guns are a different matter? Is it because the history doesn't align with what these two justices really wanted?
Unsurprisingly, some of the usual suspects agree with this nonsense completely.
Jonathan Lowy, president of Global Action on Gun Violence, shared similar concerns.
“While the court was correct that a gummy at bedtime should not automatically disqualify someone from guns, that’s because of 2026 views on marijuana use, not because of 18th- or 19th-century laws that now determine the fate of all gun laws,” Lowy said in a statement, per USA Today.
“Twenty-first century gun violence can’t be solved with 18th-century solutions.”
Yeah, it can.
Look, say what you want about gun rights, but since the Bruen decision, we've seen the homicide rate drop like a Russian tank turret after hitting its apex. If "18th-century solutions" were the problem, you should have seen the opposite. We've got more guns on the streets of America than at any other time in history.
Gun rights keep Americans safe, just as they did when the Founding Fathers ratified the Second Amendment.
Further, just because the Court happened to issue a ruling that aligns with modern attitudes on marijuana use, the reality is that the case lines up well with those 18th-century laws that Lowy decries. There was a prohibition on carrying a gun while drunk, but not while being a drinker, and that's the entire point here. Yes, marijuana has gained a lot of acceptance during my lifetime, but the Bruen test supported that decision just as much, if not more so, than modern attitudes about pot.
There's no reason to relitigate the Bruen decision, and there's nothing wrong with it. The only issue is that too many in lower courts are contorting themselves to try and find a reason that sounds acceptable under that precedent that will let them restrict just about everything they wanted to see restricted before.
That's not Bruen's fault. That's because some judges can't be bothered to actually try to accept the decision based on the spirit of the ruling, rather than how they can manipulate the letter of it.
