Justice Ketanji Brown Jackson used a unanimous Supreme Court firearms ruling to launch her sharpest attack yet on the standard that protects Second Amendment rights from regulatory overreach. In a concurring opinion filed June 18, Jackson called the historical-tradition test established in New York State Rifle & Pistol Association v. Bruen "unworkable" and urged the court to consider "whether to retire the failed Bruen experiment" in a future case.
Justice Sonia Sotomayor joined the concurrence. No other justice signed on.
The occasion was a narrow, 9-0 decision striking down a federal law that made it a crime for a regular marijuana user to possess a firearm. Every justice agreed the law went too far. But Jackson seized the moment to argue that the entire framework the court uses to evaluate gun regulations, a framework rooted in the nation's founding-era legal traditions, should be scrapped. The question for conservatives is simple: What would replace it, and who would benefit?
The June 18 ruling was, by the court's own description, "a relatively narrow one." Justice Neil Gorsuch, writing for the majority, examined historical laws targeting habitual drinkers and found them a poor match for a blanket ban on gun possession by marijuana users.
"Had habitual drunkard laws applied to those who simply drank regularly, many notable early Americans could have faced trouble."
That was Gorsuch's dry observation, a reminder that the founders themselves would have run afoul of the kind of broad prohibition at issue. The historical-tradition test worked exactly as designed: it measured a modern regulation against the legal landscape the framers actually inhabited and found the modern law wanting.
Jackson agreed with that result. She just doesn't like how the court got there.
In her concurrence, Jackson argued that the Bruen test forces judges to "sift through centuries-old evidence to find a previous law that is roughly equivalent" to a challenged regulation, rather than simply evaluating "whether a gun rule is a justifiable way of addressing a modern problem." She wants the court to move away from historical analysis and toward a more open-ended balancing test, one that would give judges and legislatures far wider latitude to restrict firearms.
That framing sounds reasonable in the abstract. In practice, it would hand regulators a blank check. The whole point of the Bruen test is to anchor Second Amendment rights in the same historical bedrock that protects the rest of the Bill of Rights. No one suggests judges should decide free-speech cases by weighing whether a censorship rule is "a justifiable way of addressing a modern problem." The question is whether the government's action falls within the boundaries the Constitution permits. Bruen applies the same logic to firearms.
Jackson's preferred approach, let judges decide what is "justifiable", is the interest-balancing framework that Bruen explicitly rejected in 2022. The court's conservative 6-3 majority discarded that approach precisely because it allowed lower courts to rubber-stamp nearly any gun restriction that sounded sensible to a particular judge. Returning to it would gut the Second Amendment's force as an individual right.
Jackson's concurrence did not arrive in a vacuum. Her own conduct during oral arguments earlier this year in a pending Hawaii gun case reveals just how elastic her view of "history and tradition" can become when it serves a restrictive outcome.
The case, Wolford v. Lopez, involves a Hawaii law that requires gun owners to obtain permission before bringing a firearm onto private property open to the public, a restriction so sweeping that critics have dubbed it a "vampire rule," since a gun owner effectively cannot enter a business unless explicitly invited to carry. During January oral arguments, Jackson argued that the racist Black Codes of the post-Reconstruction South could serve as valid historical precedent to justify Hawaii's restrictions under the very Bruen test she now calls a failure.
Read that again. In January, Jackson invoked the Bruen framework, and reached for some of the most repugnant laws in American history to do it. In June, she declared the entire framework broken and called for its retirement.
The contradiction is stark. When the historical-tradition test could be weaponized to uphold gun control, even by citing laws designed to disarm freed Black Americans, Jackson was willing to play along. When the same test produced a pro-gun-rights result, she wanted it gone.
Justice Samuel Alito did not let the January argument pass unchallenged. As the New York Post reported, Alito pushed back forcefully, noting that the post-Reconstruction laws Jackson cited were enacted to help the Ku Klux Klan terrorize Black Americans.
"Wasn't the purpose of the laws in the post-reconstruction South that disarmed black people precisely to prevent them from doing what the Second Amendment is designed to protect?"
Alito also accused Hawaii of "relegating the Second Amendment to second-class status", a charge that applies with equal force to Jackson's broader project of dismantling the test that prevents exactly that outcome.
Jackson is not wrong that the Bruen test has created turbulence in the lower courts. Notre Dame Law School associate professor Haley Proctor, a Second Amendment specialist, acknowledged the uneven landscape in an analysis of the pending Hawaii decision.
"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 disagreement is real. But inconsistency among lower courts is not evidence that a constitutional standard is wrong. It is evidence that the Supreme Court needs to keep clarifying the standard, which is precisely what it has been doing. In 2024, all justices except Clarence Thomas signed an opinion making the historical-tradition test easier to apply, in a case involving domestic abusers and gun ownership. The court has been refining its framework, not abandoning it.
The Hawaii decision, expected by the end of June, will offer another opportunity. During oral arguments, a majority of justices sounded ready to rule that Hawaii's law flunks the historical-tradition test. If they do, the Bruen framework will have delivered another clear result, one that protects the right of lawful gun owners to carry on private property open to the public without begging for permission.
Gun-control advocates were quick to echo Jackson's call. Jonathan Lowy, president of Global Action on Gun Violence, issued a statement endorsing her position while trying to sound moderate about the marijuana ruling itself.
"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 "18th century solutions" line is a familiar talking point, and a misleading one. The Constitution itself is an eighteenth-century document. The First Amendment, the Fourth Amendment, the prohibition on cruel and unusual punishment: all of them rest on principles articulated centuries ago and applied to modern circumstances. No serious legal thinker argues that the age of a constitutional protection diminishes its authority. Only with the Second Amendment does this argument gain traction in polite company.
What Lowy and Jackson are really proposing is a world in which gun regulations are judged not by constitutional text and history but by the policy preferences of whoever happens to hold power. Under a balancing test, a sympathetic judge in a blue-state circuit could uphold virtually any restriction by declaring it a "justifiable" response to gun violence. The Second Amendment would become a suggestion, not a right.
Jackson's concurrence attracted only one other vote. The court's conservative majority shows no appetite for abandoning Bruen. But the concurrence matters because it signals a long-term strategy. If the court's composition changes, through retirements, new appointments, or political shifts, Jackson has laid the intellectual groundwork for a future reversal. Her opinion is less a legal argument than a political marker, planted for a court that does not yet exist.
The 2022 Bruen decision was decided along ideological lines, 6-3. The conservative majority built a framework that treats the Second Amendment the way the court treats every other enumerated right: as a guarantee rooted in history, not a privilege subject to bureaucratic cost-benefit analysis. That framework has produced consistent, defensible results, including the unanimous marijuana ruling that Jackson herself joined.
The test isn't broken. It's working. And that's exactly why its opponents want it gone.