Bruen historical – In a unanimous June 18 ruling that kept a marijuana-user from being barred from carrying a gun, Justice Ketanji Brown Jackson argued that the Supreme Court’s Bruen “historical tradition” test is unworkable—calling for a future retirement of the approach.
WASHINGTON — The Supreme Court agreed on June 18 that a federal gun law designed to keep firearms out of the hands of dangerous people went too far.
Even so, the justices’ disagreement over how judges should evaluate gun regulations never really disappeared. In a concurring opinion. Justice Ketanji Brown Jackson said the court’s “historical tradition” test—built in the landmark 2022 decision New York State Rifle & Pistol Association v. Bruen—is “unworkable,” and should be rethought.
Jackson joined Justice Sonia Sotomayor in writing that judges should not treat centuries-old evidence as the measuring stick for modern public-safety problems. Instead. she said. courts must sift through old laws to find a previous rule that is roughly equivalent to the modern gun restriction at issue.
She pointed to an example from the June 18 decision: Justice Neil Gorsuch cited the drinking habits of the founding fathers to illustrate why historical laws restricting the rights of “habitual drinkers” were a poor match for a modern rule that makes it a crime for a regular marijuana user to have a gun.
Jackson did not reject Gorsuch’s reasoning so much as the method itself. She said the test forces judges to play historians when evaluating gun rules, and she urged the court in a future case “whether to retire the failed Bruen experiment.”
The practical problem is that the court created Bruen’s framework in 2022. expanded the Second Amendment right to bear arms outside the home. and then—two years later—moved to make the historical tradition test easier to apply. All but Justice Clarence Thomas signed onto an opinion that made that approach more usable.
Yet lower courts still struggle with it.
The justices are now watching another case closely: a pending decision about a Hawaii law that requires gun owners to get permission before bringing a firearm into a store or other private property that’s open to the public. During the January oral arguments, a majority sounded ready to rule that the Hawaii law fails the historical tradition test.
But the June 18 decision in favor of the drug user came out relatively narrowly. and that could shape how far the court is willing to go next. Notre Dame Law School associate professor Haley Proctor. who specializes in the Second Amendment. said the Hawaii ruling—expected by the end of the month—may not meaningfully change the court’s test for gun rules.
Proctor said the court may not provide much guidance on whether there are other ways states can ban firearms in “sensitive” public places such as parks or public transportation. She pointed out that lower courts are not aligned on what makes a place “sensitive.”
Proctor said, “They uniformly recognize that the government may ban firearms from sensitive places but disagree on what makes a place `sensitive.’”
Outside the courtroom. the reaction to Jackson’s critique landed hard on the question of whether history is the right tool for today’s violence problem. Jonathan Lowy. president of Global Action on Gun Violence. said Jackson is exactly right that judges are not equipped to apply the Bruen test and that it should be scrapped.
Lowy said, “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.”
He added in a statement, “Twenty-first century gun violence can’t be solved with 18th century solutions.”
The sequence is stark: the justices unanimously agreed on June 18 that a federal restriction went too far. yet Jackson’s concurrence said the court’s own evaluative framework is the part that needs to change. The court may soon be asked again to draw the boundaries—this time in Hawaii’s “permission” rule for carrying firearms into places open to the public—and whether the justices narrow or broaden their approach could determine how quickly the country sees the next round of consequences.
Supreme Court Ketanji Brown Jackson Bruen Second Amendment historical tradition test gun regulations Hawaii gun law marijuana and guns Sonia Sotomayor Neil Gorsuch