The Supreme Court handed down a unanimous ruling Wednesday striking down a federal law that barred regular marijuana users from owning firearms, and Justice Ketanji Brown Jackson used the occasion to launch her most direct assault yet on the constitutional test the Court itself created just four years ago to evaluate gun regulations.
Jackson, joined by Justice Sonia Sotomayor, wrote a concurring opinion calling the "historical tradition" test established in the landmark 2022 case New York State Rifle & Pistol Association v. Bruen "unworkable." She urged her colleagues to consider, in a future case, "whether to retire the failed Bruen experiment."
That language, "failed experiment", is remarkable coming from a sitting justice describing a framework her own Court adopted by a 6-3 conservative majority. It is also a transparent bid to chip away at one of the most consequential Second Amendment rulings in modern history. And it deserves scrutiny, not applause.
The ruling centered on Ali Danial Hemani, a Texas man prosecuted under a 1968 federal statute for possessing a firearm while using marijuana. The New York Post reported that the same statute was used to convict Hunter Biden, who was found guilty of purchasing a firearm while addicted to crack cocaine before receiving a presidential pardon from his father.
Justice Neil Gorsuch authored the majority opinion. He found the government could not justify the sweeping categorical ban under the Second Amendment's historical tradition test, the very framework Jackson now wants discarded. Gorsuch noted the contradiction in the federal government's position, given that more than half of U.S. states now allow licensed dealers to sell marijuana to adults.
Newsmax reported that the decision leaves limited room for prosecution in cases involving individuals who are addicted or actively intoxicated while possessing firearms. Gorsuch drew the line carefully, writing:
"Affording the government broad power to designate any group as dangerous and thereby disqualify its members from having a gun would risk allowing it to quickly swallow the Second Amendment."
That warning should resonate with anyone who has watched federal agencies try to define entire categories of lawful citizens out of their constitutional rights.
Gorsuch also offered a sharp historical aside. He cited founding-era laws restricting the rights of habitual drinkers, noting they were far narrower than the modern marijuana ban. USA Today reported that Gorsuch wrote: "Had habitual drunkard laws applied to those who simply drank regularly, many notable early Americans could have faced trouble."
The point was well taken. The federal statute at issue carried a sentence of up to fifteen years, as Just The News noted, and Hemani was never accused of using his weapon while under the influence. The government was, in effect, criminalizing mere status, regular marijuana use, rather than dangerous conduct.
Jackson agreed with the outcome. She agreed Hemani's prosecution went too far. But she used her concurrence to argue that the problem is not the federal statute, it is the test the Court uses to evaluate gun laws in the first place.
Her objection: the Bruen framework requires judges to sift through centuries-old evidence rather than evaluate whether a modern regulation "justifiably addresses a modern problem." She called the test "unworkable" and urged the Court to take up the question of scrapping it entirely in a future case.
This is not a minor procedural quibble. It is a frontal challenge to the analytical framework that protects Second Amendment rights from the kind of interest-balancing tests that allowed governments to regulate firearms almost without limit for decades before Bruen. The Supreme Court's recent term has been packed with consequential rulings, but few carry the stakes of the ongoing battle over how gun rights are measured.
Before Bruen, lower courts routinely applied "means-end scrutiny", a flexible balancing test that asked whether a gun regulation served a sufficiently important government interest. In practice, the test almost always favored the government. Bruen replaced that approach with a requirement that any modern gun regulation be "consistent with this Nation's historical tradition of firearm regulation." The shift was seismic. It forced governments to justify restrictions by pointing to actual historical analogs, not by invoking generalized public-safety arguments.
Jackson wants to go back. She frames her position as pragmatic, judges are not historians, the record is messy, lower courts are confused. But the practical effect of abandoning Bruen would be to return enormous discretion to the very legislatures and bureaucracies that spent years restricting gun rights under the old balancing framework.
Jackson and her allies point to real disagreements in the lower courts. Haley Proctor, an associate professor at Notre Dame Law School who specializes in the Second Amendment, described the landscape bluntly:
"Meanwhile, lower court decisions on 'sensitive place' laws are all over the map. They uniformly recognize that the government may ban firearms from sensitive places but disagree on what makes a place 'sensitive.'"
That is a fair observation. Lower courts have struggled to apply Bruen consistently, particularly on questions about where firearms may be carried. But lower-court confusion is not evidence that a constitutional test has failed. It is evidence that courts are working through a new framework, exactly what happens after any landmark shift in constitutional law.
The Court itself has already taken steps to address the growing pains. In 2024, all justices except Clarence Thomas signed onto an opinion involving domestic abusers and gun ownership that made it easier to apply the historical tradition test. Thomas has shown his own willingness to challenge long-standing legal doctrines, but on Bruen, he has held firm, he authored the original opinion and declined to water it down.
The pending Hawaii case could sharpen the picture further. That case involves a state law requiring gun owners to obtain permission before bringing a firearm into a store or other private property open to the public. During oral arguments in January, a majority of justices sounded ready to rule that the Hawaii law fails the historical tradition test. A decision is expected by the end of June.
Jonathan Lowy, president of Global Action on Gun Violence, seized on Jackson's concurrence. He issued a statement agreeing that judges are not equipped to play historians and that the Bruen test should be abandoned:
"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. Twenty-first century gun violence can't be solved with 18th century solutions."
The framing is revealing. Lowy's argument, and Jackson's, treats the Constitution's text and history as obstacles to modern governance rather than as the foundation of individual rights. The Second Amendment is not an eighteenth-century suggestion. It is a binding constitutional guarantee. The question Bruen answers is not whether old laws are aesthetically satisfying to modern sensibilities, but whether the government's proposed restriction has any grounding in the tradition that produced the right in the first place.
AP News reported that the ruling represents a loss for the Trump administration, which had defended the 1968 law. That detail underscores the breadth of the decision: even the executive branch's position could not survive the Court's unanimous application of the very test Jackson wants to discard.
Carrie Severino of the Judicial Crisis Network offered a different take, as Fox News reported: "It's a good day for the Second Amendment when all nine justices can agree to protect gun rights."
She has a point. The unanimity of the ruling is itself the strongest rebuttal to Jackson's claim that the Bruen framework is broken. All nine justices, including Jackson herself, agreed on the outcome. The test produced a result that every member of the Court could endorse. That is not what failure looks like.
The broader pattern matters more than any single case. Since Bruen, gun-rights challenges have multiplied across the country. The Court has been willing to reverse lower courts when constitutional rights are at stake, and the historical tradition test has given Second Amendment claims a firmer footing than they had under the old regime.
Jackson's concurrence is a two-justice opinion with no binding force. But it is also a signal, a marker laid down for future litigation and future Court compositions. If the liberal wing can attract even one vote from the conservative majority, the framework that currently protects gun owners from open-ended government regulation could be in jeopardy.
The ACLU's legal director, Cecillia Wang, framed the Hemani ruling as a victory for civil liberties: "The court has sent a strong message that the government cannot criminalize the conduct of large numbers of people by making categorical and unfounded assumptions about whether they are dangerous." That statement is correct, and it was made possible by the very test Jackson wants to abolish.
The Court's recent willingness to intervene decisively in cases touching fundamental rights shows that the justices take their gatekeeping role seriously. The question is whether that role will continue to be guided by constitutional text and history, or by the kind of open-ended balancing that let governments restrict gun rights almost at will for decades.
Jackson called Bruen a "failed experiment." But the experiment she wants to run in its place is the one Americans already lived through: a regime where courts deferred to legislatures on gun restrictions, where the Second Amendment was treated as a second-class right, and where the practical ability to keep and bear arms depended on the political preferences of whichever government happened to be in charge.
Bruen is not perfect. No constitutional framework is. Lower courts will continue to wrestle with its application, and the Supreme Court will continue to refine it, as it did in 2024, and as it may do again in the Hawaii case this month.
But the answer to growing pains is not amputation. When a unanimous Court applies a test and reaches a result that vindicates individual rights, the test is not the problem. The people who want to get rid of it are telling you what they would do without it.