By Jonathan Lowy, President, Global Action on Gun Violence
The Supreme Court has radically — and incorrectly — transformed Second Amendment law over the past two decades. In District of Columbia v. Heller (2008) and New York State Rifle & Pistol Association v. Bruen (2022), the Court upended two centuries of settled jurisprudence and replaced the workable, balanced framework for litigating U.S. firearm regulations that the Framers intended with an ahistorical one that is rigid, illogical, and dangerous. There is no better example of how misguided current Second Amendment law is than United States v. Hemani, the case involving a marijuana user’s challenge to the federal gun ban for drug users that the Court heard on March 2.
Before Heller, courts had faithfully read the Second Amendment as the Framers intended: to protect “well-regulated” state militias from federal overreach. Heller broke from that precedent, holding for the first time that the Second Amendment protected a private right to possess firearms for self-defense, even for individuals with no relation to a state militia. That was a significant departure that disregarded the Framers’ overriding intent — and half of the words they wrote — and replaced it with the Court’s modern policy preference.
This departure was extraordinary. It adopted a view that was so universally rejected that, just 17 years earlier, former Chief Justice Warren Burger called it one of the greatest “frauds” perpetuated on the American people by a special interest group.
To be clear, faithfully adhering to the Framers’ intent to protect well-regulated militias is not “anti-Second Amendment” or “anti-gun.” One can believe that law-abiding, responsible Americans should be legally entitled to guns, and that broad gun bans are bad policy, while recognizing that was not the Second Amendment’s concern. For that reason, even though Heller was wrongly decided, its policy effects could have been acceptable; it allowed for reasonable gun laws, only prohibiting sweeping gun bans while entitling “law-abiding, responsible citizens” to a gun in the home. Putting aside the misreading of history and the Amendment’s text, most Americans could live with that.
But Bruen made things far worse. Bruen both extended the right to armed self-defense to public spaces outside the home, and it mandated that courts strike down gun laws that affect private gun use unless the law has a historical analogue, from either the Founding era or the mid-19th Century. Bruen rejected the test that courts used after Heller, which allowed governments to justify gun regulations by demonstrating that they serve compelling public safety interests and don’t unduly affect gun rights. Under Bruen, if a gun law was enacted to address a current issue that did not exist in the 18th or 19th century, courts would be expected to strike it down – even if 100% of Americans supported the law, or if every expert agreed that it was necessary to save lives. If no sufficiently similar historical analogue existed, the regulation would be struck down.
This is as dangerous as it is illogical.
Consider the case now before the Supreme Court: United States v. Hemani. The federal law at issue, 18 U.S.C. § 922(g)(3), prohibits habitual drug users from possessing firearms. Congress enacted this prohibition based on modern empirical evidence: habitual drug users are statistically more likely to engage in violent or criminal behavior, more likely to interact with a criminal element when obtaining drugs, and less likely to exercise self-control. The public safety case for the law is strong and well-documented. As applied to Mr. Hemani, whose drug of choice was THC gummies, the public safety rationale is shakier, given the evolving acceptance of marijuana use. Before Bruen, the Court would consider evidence on whether the ban on his gun use was or was not justified based on public safety needs.
But Bruen instructs courts to not focus on these modern assessments of risk. The limits of relying on the historical record, that Bruen directs courts to rely on, is clearly illustrated by the history of drug laws. There were no bans on guns for drug users in the 18th or 19th century. Marijuana was used medicinally in the United States in 1791. Cocaine was a common ingredient in patent medicines and, famously, in Coca-Cola into the early twentieth century. Neither the federal government nor any state imposed meaningful restrictions on drug use until well into the twentieth century — not because the Framers thought such restrictions were unconstitutional, but simply because they had no reason to enact them. Drugs weren’t understood as a public safety threat. The concept of drug addiction, let alone its relationship to gun violence, wasn’t part of their world.
Under Bruen‘s logic, Hemani presents the Court with a few options, each of them bad. First, the Court could read this legislative silence on drugs from the 18th and 19th century to mean that the 20th and 21st century ban on gun possession by drug users must be unconstitutional. That would be a stunning non sequitur. The Framers didn’t legislate against habitual drug users possessing firearms for the same reason they didn’t legislate against distracted driving or social media harassment: the problem didn’t exist in any form they would have recognized. To treat their silence as a permanent constitutional bar on modern public safety legislation is to let the dead hand of the past strangle the living.
Alternatively, the Court could hold that the historical precedent is sufficiently analogous at a general level; so old laws barring drunkards from possessing guns could support today’s ban on drug users. But using that level of generality makes the Bruen test infinitely manipulatable, rendering it virtually meaningless. And that test does not allow courts to consider that even if a ban on gun possession by users of more dangerous drugs may be justified, a ban on users of less dangerous drugs like Ambien, Adderall, or marijuana might not be.
At the oral argument before the Supreme Court, the Justices struggled with the confines of Bruen. Justice Gorsuch explained that the Framers had a very different view of habitual use than we do, noting that “James Madison reportedly drank a pint of whiskey every day,” and “Thomas Jefferson said he wasn’t much of a user of alcohol, he only drank three to four glasses of wine a night.” Justice Ketanji Brown Jackson, in particular, explicitly called out the problems with the historical test.
Another problem with Bruen is that it uses history as a one-way ratchet. The Court is willing to read the Second Amendment broadly to protect modern semi-automatic handguns — weapons the Framers could never have imagined — but insists that the regulation of those weapons be constrained by how far less-lethal muskets were regulated in a far less dangerous era. That’s not originalism. That’s a selective, results-driven use of history.
Courts should consider gun laws as they do laws in every other context involving public safety: ask whether the government has a compelling interest, and whether the law is appropriately tailored to serve that interest. What are the actual risk factors? For environmental law, food safety, drug regulation, workplace safety — in every domain where evidence and public health are at stake — courts and legislatures are allowed to learn and adapt. The Second Amendment alone, under Bruen, is frozen in time.
That is why GAGV filed an amicus brief in Hemani, urging the Court to restore the framework that every single federal circuit court of appeals had unanimously adopted before Bruen — a two-step approach that first asks whether the regulated conduct falls within the Second Amendment’s historical scope, and then applies means-end scrutiny to assess whether the regulation appropriately balances individual rights with the government’s interest in protecting public safety. This is the framework that respects both the Constitution and the reality that gun violence is now the leading cause of death for children and teens in America. It is the framework that allows legislatures to govern — to respond to new evidence, new weapons, and new threats — rather than being perpetually shackled to the unaddressed problems of a world that no longer exists.
And while other gun violence prevention groups filed amicus briefs in support of the government’s ban, GAGV filed a brief on behalf of neither side. We argued that courts should be able to hold that the ban on gun possession by drug users is constitutional, but it may not be constitutional as applied to marijuana users. Courts should be allowed to make that assessment based on current science and views on each drug specifically.
The question in Hemani is, at its core, simple: should courts be allowed to consider modern evidence and public safety needs when evaluating whether a gun law is constitutional? The answer should be yes. Bruen says no. It’s time for the Court to correct that mistake.