The unanimous decision in U.S. v. Hemani that found a federal prohibition on gun ownership for “unlawful” drug users unconstitutional as it applies to a Texas man who admitted to possessing a firearm while regularly using marijuana hasn’t received much pushback at all from the anti-gun crowd. Gun control groups like Giffords and Brady have tried to spin the relative narrowness of the decision as a win for “common sense” bans on particular categories of gun owners, but their post-ruling statements have been so vague that if were relying on them to figure out what Hemani was all about you’d be left clueless.
Gun control fans have also tried another approach to Hemani; adopting the argument of Supreme Court Justice Ketanji Brown Jackson, who concurred with the majority in finding Section 922(g)(3) unconstitutional as it applies to Ali Danial Hemani, but complained about the way the Court reached its conclusion. Bloomberg columnist Noah Feldman has embraced Jackson’s position, arguing that while the outcome of Hemani is correct, the “text, history, and tradition” test deployed by the Court is anything but.
Under Bruen, when Congress limits gun rights, the government must demonstrate an analogy between the restriction on bearing arms and some founding-era legal practice. The court tweaked that rule in a follow-up case called United States v. Rahimi, when it ruled that the Second Amendment is not “preserved in amber” and the analogy need not be precise.
If that sounds like a rule so flexible as to be almost meaningless, that’s because it is. Originalism is a terrific theory for Supreme Court dissents in which some justice complains that the court has invented new constitutional rights. It’s terrible for majority opinions in which the court is supposed to lay down a consistent rule that legislatures can actually follow. Whether a given gun law is a sufficiently close analogy to laws made for the era of the musket is not a rule capable of creating a predictable legal regime.
To be fair, there are some on the right who also find fault with the test laid out in Bruen, and for the same reasons that Feldman complains about. How close does a modern day law have to be to an historical statute in order for it to be upheld? There were no licensing laws back in 1791, but SCOTUS found that “shall issue” licensing laws are close enough to 19th century surety laws to pass muster… though discretionary “may issue” laws are not.
In Hemani, Gorsuch attempted to flesh out the test a bit by noting that the “how” and the “why” of the modern law matters. As he wrote in the opinion:
Accordingly, to show that a contemporary regulation is consistent with this Nation’s historical tradition of firearm regulation, we do not require the government to point to a “historical twin” or “precis[e] . . . historical precursors.” Instead, we have said, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” And, to that end, the government may “reaso[n] by analogy,” showing that its contemporary regulation is “relevantly similar” to ones “well-established” in the Nation’s history.
While we have not yet had cause to “exhaustive[ly] survey” the features that may render a modern law “relevantly similar” to historical ones, we have said two play a “‘central’” role. Call them the “why” and “how.” The more closely a contemporary law mirrors a well-established historical analogue in purpose and operation, the more likely it is to be upheld. Conversely, the more a modern law diverges from traditional laws in purpose and operation, the less likely it is to survive review.
Fair enough, but that still doesn’t say much about marginal cases, or if there is some point at which a contemporary law no longer mirrors a Founding-era statute.
SCOTUS has given itself (and the lower courts) plenty of wiggle room, but I still think the “text, history, and tradition” test is at least marginally better than the tiered scrutiny preferred by Jackson, Sotomayor, and gun control advocates like Feldman. As we saw repeatedly in the years before Bruen, so long as the government argued that a particular gun control law was meant to improve public safety, many judges used intermediate scrutiny to uphold the law in question. Even if they acknowledged that a right was being infringed, if there was a legitimate public interest in doing so the law typically passed judicial muster.
The Bruen test can and has been abused as well, of course. We’ve seen judges declare that commonly owned arms aren’t protected by the Second Amendment at all, just so they don’t have to do a historical analysis. Laws banning the carrying of Bowie knives in the 1800s have been used to uphold possession and transfer bans on AR-15s and other semi-automatic firearms. Even though the Supreme Court has said a handful of laws isn’t enough to comprise a national tradition, some courts have pointed to one or two carry restrictions from the 1870s as proof that almost any crowded public place can be deemed “sensitive” and off-limits to lawful carry.
The real problem is a judiciary that still largely refuses to recognize the fundamental importance of the right to keep and bear arms. So long as judges treat the Second Amendment as a second-class right, it really doesn’t matter what test they use. In that sense, the unanimity in Hemani is notable, though I think we have a long way to go before the Court’s liberal wing truly acknowledges that the Second Amendment is on equal footing with the First, Fourth, and other amendments that protect individual rights.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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