Jackson's Hemani concurrence is a blueprint for gutting the Second Amendment

The bottom line

Justice Ketanji Brown Jackson used a 9-0 gun-rights win to publish a roadmap for destroying the one legal standard that actually protects your Second Amendment rights. She called the Bruen framework “unworkable,” argued for restoring the balancing test Bruen expressly buried, and invited future progressive majorities to finish the job. This is not abstract legal housekeeping. It is a declared agenda.

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This article is based on analysis from Bearing Freedom. Watch the original video. This is commentary, not legal advice.

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A 9-0 win with a knife inside it

On June 18, 2026, the Supreme Court handed down United States v. Hemani, No. 24-1234, and the headline was unmistakably good. Nine justices, unanimous, ruled that the federal government could not strip Ali Hemani’s Second Amendment rights and throw him in prison simply because he smoked marijuana a few times a week. The law at issue, 18 U.S.C. § 922(g)(3), makes it a federal felony for any “unlawful user of or addicted to any controlled substance” to possess a firearm, carrying up to ten years in prison. Justice Gorsuch wrote the majority. He noted that marijuana use is now legal in some form in 40 states, that the Founders’ historical tradition of disarming “habitual drunkards” was never applied to people who merely drank regularly, and that the government failed to show a historical analogue sufficient to justify this categorical ban on a person who posed no demonstrated danger to anyone.

That’s the right result. Obviously. The idea that a man who smoked weed on Tuesday is constitutionally disarmed on Friday beggars any coherent principle of constitutional law. If dangerousness is the operative concept, then prove dangerousness. Don’t just invoke a substance someone consumed and wave goodbye to their rights.

But here is where it gets complicated. Two of the justices who joined that 9-0 majority used the occasion to publish something that should alarm every Second Amendment supporter in the country.

What Jackson actually wrote

Justice Jackson, joined by Justice Sotomayor, filed a concurrence. She agreed that under the current Bruen standard, Hemani wins. Fine. But she did not stop there. She then spent her concurrence arguing that Bruen itself is the problem, calling it “unworkable” and asserting that the Court should “consider whether to retire the failed Bruen experiment and return to an explicit assessment of Congress’s ends and means when deciding the constitutionality of firearm restrictions.”

Let me translate that. What Jackson is calling for is a return to means-end scrutiny, the balancing framework the Supreme Court expressly rejected in Bruen in 2022. Under that pre-Bruen regime, courts weighed the government’s stated interest in a gun restriction against how severely the restriction burdened the right. And as Bruen itself recognized, that approach had become, in practice, a rubber stamp. The government would claim public safety. The court would nod. The restriction would survive. Under that standard, the Second Amendment was not a real right with real teeth. It was an asterisk.

Jackson knows this. She is not confused about what means-end scrutiny does in practice. She wants it back precisely because of what it does in practice.

Her stated objection to Bruen is that it requires judges to “sift through centuries-old evidence” to answer “contested historical questions” and apply those answers to contemporary problems. She frames this as an undue burden on courts. In her telling, the historical tradition inquiry is just too hard.

This argument deserves to be taken seriously for exactly two seconds before being rejected. The Second Amendment is a constitutional provision ratified at a specific historical moment by specific people with specific intentions. Understanding what it meant to those people is not some optional academic exercise. It is the entire enterprise of constitutional interpretation. If originalism is too hard for federal judges, we have a very different and much larger problem than the Second Amendment.

What Bruen actually does and why it matters

The text-history-and-tradition test established in New York State Rifle & Pistol Association v. Bruen (2022) is not complicated in concept. When the government restricts conduct that falls within the plain text of the Second Amendment, the government bears the burden of proving that the restriction is consistent with the historical tradition of firearm regulation in this country. If there is no historical analogue, the restriction fails. Full stop.

This approach flows directly from Heller (2008), which established that the Second Amendment protects an individual right to keep and bear arms for self-defense, and from McDonald (2010), which incorporated that right against state governments. What Bruen did was enforce those holdings against lower courts that had spent fourteen years running around them. Between Heller and Bruen, a broad consensus of federal circuit courts had quietly adopted interest-balancing tests that let them uphold almost any gun restriction a legislature passed. Bruen shut that down. It said: text and history, not policy preferences.

The reason the Bruen test is, as Jackson puts it, causing lower courts difficulty is not that the standard is intellectually demanding. It is that the standard is politically inconvenient for judges who want to reach a predetermined outcome. It is genuinely hard to find an 18th-century historical analogue for a complete categorical ban on modern firearms owned by tens of millions of law-abiding citizens, because no such analogue exists. The gun controllers cannot win under honest historical analysis, so they call the analysis unworkable and ask for a test they can win under.

The means-end shell game

Here is the practical consequence of what Jackson is proposing. Under means-end scrutiny, any gun restriction the government can dress up as serving a compelling or important interest survives constitutional challenge. Mass confiscation of so-called assault weapons? The government argues it saves lives. Handgun bans in certain jurisdictions? Public safety. Magazine limits, suppressor bans, waiting periods, red-flag seizures, every restriction the gun-control lobby has ever dreamed up, all of them slide through a means-end test if the reviewing court is sympathetic.

And the reviewing courts are often sympathetic, because federal judges, especially in blue-state circuits, are not recruited from the ranks of Second Amendment activists. Pre-Bruen, the Ninth Circuit upheld magazine bans and assault-weapons restrictions with barely a pause. The interest-balancing approach let them do it. Bruen made that impossible. Hemani just demonstrated why. Even in a case where the government had every sympathy on its side, the Gorsuch majority could not find a historical tradition deep enough to justify the § 922(g)(3) categorical ban.

That is Bruen working exactly as intended. It forced the Court to acquit a marijuana user not because justices personally endorse drug use, but because the Constitution requires actual historical grounding for firearm restrictions. The result was correct. The framework produced the correct result. Jackson agrees the result is correct and still wants to throw out the framework. That tells you everything about what this is actually about.

The political context Jackson is writing into

I think it would be naive to read Jackson’s concurrence purely as a legal argument. She is writing to an audience, and that audience is the Democratic coalition that might one day install a court-packing majority. She has now publicly declared that she considers Bruen a “failed experiment,” that she has a preferred replacement methodology ready to go, and that the only thing standing between her and a fundamental restructuring of Second Amendment doctrine is the current composition of the Court.

The current Court is 6-3, conservative-leaning, and protected by Trump appointments. But courts change. Justices die or retire. Elections happen. Jackson is not writing a concurrence for today. She is writing a concurrence for the next Democratic trifecta, whenever that arrives, whenever the math of court-packing or natural attrition changes the balance. This is a published declaration of intent.

The fact that Hemani was 9-0 is important context. Jackson did not dissent. She could not justify a dissent on the merits because the Bruen analysis clearly compelled Hemani’s acquittal. So she did the next-best thing from the anti-gun perspective: she joined the majority while explaining that if the methodology were different, the outcome might be too. She put the legal community on notice that she views Bruen as illegitimate and intends to retire it at the first available opportunity.

What happens if Bruen falls

I want to be direct about what gun law looks like without Bruen, because I think some people assume that even without the historical tradition test, Heller and McDonald would still provide some floor of protection. They would not provide much of one.

Heller recognized the individual right. But Heller also said the right is not unlimited, and it offered a non-exhaustive list of “presumptively lawful” regulatory measures including prohibitions on carrying in sensitive places, conditions on commercial sale, and possession bans for felons and the mentally ill. Under means-end scrutiny, every gun ban in the country eventually finds its way into one of those carve-outs, or into a newly invented one. Whatever the legislature wants to ban, public safety becomes the magic words that get it there. If the Court is just asking whether the government’s stated interest is legitimate and the means are reasonably tailored, the answer is almost always yes. We know that because that was the pre-Bruen reality and it produced a constitutional graveyard.

The Bruen standard is what keeps the right real. Jackson’s proposed alternative is what makes the right theoretical.

This is the whole ballgame

Since Heller in 2008, the anti-gun side has not won a significant Second Amendment case at the Supreme Court. That is nearly two decades of losing under a constitutional framework that takes the text seriously. They have won in lower courts. They have won legislatively. But at the Court, they have lost.

Jackson’s concurrence is, I think, a kind of honesty. She is not pretending the Bruen framework is something it is not. She is directly saying she disagrees with it and wants it gone. That is, in a strange way, more intellectually honest than years of lower court opinions that nominally applied Bruen while quietly doing something else. But honesty about an agenda is not the same as a defensible legal position.

The text of the Second Amendment says what it says. The historical tradition of firearm regulation in this country is thin, and what little of it exists was aimed at people who were actually dangerous in the moment. A regime that lets legislators define dangerousness to mean “owns an AR-15” or “smokes marijuana” and then strip rights accordingly is not protecting anybody. It is a bureaucratic permission slip for civilian disarmament.

We won Hemani. That matters. The precedent that § 922(g)(3) cannot be applied categorically against non-dangerous marijuana users is now binding. But the concurrence Jackson filed is a document future courts will cite. It will be used to argue that Bruen has been questioned by sitting justices, that its workability has been challenged from within, that the time has come to revisit it. Every 2A advocate, every gun-rights organization, every senator who will one day vote on a Supreme Court nominee needs to understand what was published on June 18, 2026.

The right won the battle. The legal infrastructure for losing the war just got published in the U.S. Reports.