No area of constitutional law is generating more litigation than the Second Amendment. In 2022, in New York State Rifle and Pistol Association v. Bruen, the U.S. Supreme Court significantly changed the law of the Second Amendment, holding that gun regulations would be allowed only if they were supported by history and tradition. This has led to challenges in federal and state courts to every type of gun regulation. There is great confusion in the law and splits among state and federal courts on many issues.

In June, the Supreme Court decided two cases about the Second Amendment. Both continue the justices’ protection of gun rights. One of the cases, United States v. Hemani, was unanimous and narrow in its holding. The other, Wolford v. Lopez, was 6-3 and provides some additional clarification in the law for lawyers and judges dealing with Second Amendment issues.

How we got here

Between 1791 and 2008, the Supreme Court did not strike down any federal, state or local gun regulations. In the handful of Second Amendment cases it heard, the court said that it means what it says: It is a right to have guns for militia service.

In 2008, in an ideologically divided 5-4 ruling in District of Columbia v. Heller, the court declared unconstitutional a District of Columbia ordinance prohibiting ownership or possession of handguns. But the court engendered confusion by not stating the level of scrutiny to be used in challenges to laws as violating the Second Amendment. It is often forgotten, though, that Justice Antonin Scalia’s majority opinion was explicit that the Second Amendment is not absolute. But nor did he indicate the legal test that courts should use in determining the constitutionality of gun regulations.

Lower courts in hundreds of cases struggled to apply Heller. But the Supreme Court contributed to the confusion by not deciding another major case about the scope of the Second Amendment until New York State Rifle and Pistol Association v. Bruen 14 years later. The 6-3 court struck down a New York law that required a permit to have a gun in public and necessitated that a person show a safety need for a permit.

One would have thought that if the court wanted to provide great protection for rights under the Second Amendment, it would have adopted strict scrutiny. But the court, in an opinion by Justice Clarence Thomas, rejected using the levels of scrutiny in Second Amendment analysis. Justice Thomas wrote “the Second Amendment ‘is the very product of an interest balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense.”

The court prescribed a two-step inquiry for Second Amendment cases. First, a court asks whether the challenged law regulates conduct covered by the Second Amendment’s plain text. If it does, the law is presumptively unconstitutional, and the government then must show the restriction is consistent with the nation’s historical tradition of firearm regulation. The court said that “to justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

There is much that is questionable about this approach. It assumes that the absence of a particular type of regulation in 1791 means that the Second Amendment was meant to prohibit it. The decision assumed that history provides an answer, when in reality, historical practices often were divergent and are of questionable usefulness in analyzing modern weapons and contemporary needs for regulation.

Bruen unleashed challenges to every type of gun regulation. There are dozens of cases just about the constitutionality of federal and state laws that prevent ex-felons from having guns. The lower courts have struggled in applying the court’s historical approach. As Justice Ketanji Brown Jackson observed about the post-Bruen landscape in her United States v. Rahimi concurrence, lower courts “have come to conflicting conclusions on virtually every consequential Second Amendment issue to come before them.”

Two years ago, Rahimi reaffirmed Bruen’s historical approach, but offered little clarity for lower courts or litigants. In Rahimi, the court upheld a federal statute, 18 U.S.C. § 922(g)(8), that makes it a federal crime for a person under a restraining order in a domestic violence case to have a firearm. In 1791, when the Second Amendment was adopted, there were no laws like this. But Chief Justice John Roberts, writing for the court, said “since the founding, our nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.”

United States v. Hemani

A federal statute, 18 U.S.C. §922(g)(3) prohibits possession, use, reception, exportation or sale of a firearm by anyone who “is an unlawful user of or addicted to any controlled substance.” Ali Hemani, who is a United States and Pakistani dual citizen living in Texas, came under federal investigation for suspected terrorism-related activity. During a search of his family home in 2022, Hemani cooperated with investigators. He surrendered a firearm kept in the house, directed agents to marijuana on the property, and agreed to an interview. During that interview, he stated that he used marijuana approximately every other day. Hemani was charged with violating Section 922(g)(3) by being a user of illegal drugs in possession of a firearm.

On June 18, the Supreme Court unanimously ruled in favor of Hemani. Justice Neil Gorsuch, writing for the court, stressed that the government failed to demonstrate a historical tradition supporting the automatic disarmament of a person merely because he regularly used marijuana, without evidence that the drug use rendered him intoxicated, incapacitated, unable to manage his affairs or dangerous. The court rejected analogies to laws that existed regulating “habitual drunkards” or vagrancy.

The court was explicit that its ruling was narrow. It did not consider whether Section 922(g)(3) would be constitutional as applied to those who are addicted to illegal drugs. Nor did it consider the constitutionality of other aspects of Section 922, such as the prohibition of possession of guns by those convicted of felonies.

Wolford v. Lopez

The case involved a Hawaii law that prohibits bringing a gun on to private property open to the public without the property owner’s permission. In other words, under the Hawaii law, a person can bring a gun into a restaurant or shopping mall only with the consent of the property owner. Four other states have such statutes.

In a 6-3 decision, with the majority opinion written by Justice Samuel Alito, the court declared the Hawaii law unconstitutional. The court applied the two-step approach from Bruen and said that the historical analysis involves three considerations: “The first is the number of jurisdictions in which they were adopted. …The second is the extent to which they were well-accepted. This acceptance may be express, as when judicial decisions explicitly acknowledged the rule’s legality. Or the acceptance may be tacit, as when a restriction on the keeping or carrying of arms was ‘open, widespread, and unchallenged.’ … The third is whether any analogue or collection of analogues is ‘relevantly similar’ to the modern law.”

The court applied this to declare the Hawaii law unconstitutional. Although—as Justice Ketanji Brown Jackson argued in dissent—Hawaii had a long history of gun regulation, the court said that such local regulation is not enough to meet Second Amendment scrutiny. The court found that founding-era analogies, especially anti-poaching laws, were not sufficiently similar to the Hawaii statute. The court concluded that because Hawaii failed to identify a sufficiently widespread, accepted and relevant historical tradition, it did not overcome the presumption that its law was unconstitutional.

Justice Elena Kagan dissented and would have upheld the law based on the colonial and founding-era statutes. In her view, the historical and modern laws operated in the same manner: Both established a default prohibition on carrying firearms on another’s property that the owner could reverse. Their purposes were also sufficiently similar because both addressed the dangers and harms that armed persons might cause on private property.

Justice Jackson, joined by Justice Sonia Sotomayor, argued that the law did not implicate the Second Amendment at all. Because no one has a constitutional right to enter private property while armed without the owner’s consent, she reasoned that state law may determine whether consent is implied or must be express. In her view, Hawaii merely selected a property-law default protecting owners’ right to exclude. Jackson alternatively concluded that the historical laws were sufficient analogues because they similarly required affirmative consent before armed entry.

Wolford v. Lopez again reflects the court’s conservative majority’s aggressive protection of gun rights. Conservative justices have consistently stressed the importance of protecting property rights. But the Hawaii law is all about doing just that: giving private property owners the right to decide whether to allow guns on their premises.

Conclusion

There are countless issues that remain unresolved concerning the Second Amendment. For example, are laws prohibiting ex-felons from having guns, especially those who had been convicted of nonviolent crimes, constitutional? Can the government prohibit guns on public transportation or other public property? Can the government prohibit AR-15s or high-capacity ammunition magazines? All of these issues ultimately will need Supreme Court resolution and will be decided with a majority of the justices strongly inclined to protect gun rights.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law. He’s also the author of many books, including his most recent ones: Campus Speech and Academic Freedom: A Guide for Difficult Times and The Supreme Court October Term 2024: Taking Sides.