Supreme Court Associate Justices Ketanji Brown-Jackson and Sonia Sotomayor indicated in an opinion released Thursday the Supreme Court should overturn a landmark decision.
The Supreme Court ruled in Hemani v. United States that a regular marijuana user could not be prosecuted under 18 USC 922(g)(3), in a 9-0 decision authored by Associate Justice Neil Gorsuch. In a concurring opinion, Brown-Jackson and Sotomayor argued that the high court’s ruling in New York State Rifle and Pistol Association v. Bruen should be vacated.
“I write separately to emphasize that means-end scrutiny—the approach courts applied before we adopted Bruen’s ‘history and tradition’ metric—offers a more rational way of assessing the constitutionality of firearm regulations,” Brown-Jackson wrote. “As I and others have elsewhere explained, Bruen is unworkable.”
The Supreme Court invalidated New York’s “good cause” requirement for pistol permits in the June 2022 decision, prompting an outcry from Democrats. Associate Justice Clarence Thomas, who authored the court’s opinion in the June 2022 case, cited historical gun laws and the debate around the ratification of the Fourteenth Amendment as reasons New York’s law was unconstitutional.
Interesting that Kagan did not join the Jackson/Sotomayor dissent that calls for overturning Bruen and moving back to tiered scrutiny.
Also, for those on Overton Window watch: Jackson and Sotomayor not calling to overturn Heller or questioning the core individual right to…
— Kostas Moros (@MorosKostas) June 18, 2026
“Applying means-end scrutiny to firearm restrictions like the 18 U. S. C. §922(g)(3) prosecution before us would be straightforward,” Brown-Jackson wrote. “We would be tasked with answering familiar questions: How severe is the law’s burden on Second Amendment rights? Does the government have a strong interest in preventing firearm possession by those ‘who pose a special danger of misuse’? And is §922(g)(3)’s ban on firearm possession by unlawful users of marijuana sufficiently tailored to that interest?”
“I opine only on the mechanics of the means-ends test; what result that test would produce here is not before us, since neither party asks us to overturn Bruen and apply means-ends scrutiny,” Brown-Jackson continued.
Second Amendment Foundation Director of Legal Research and Education Konstadinos Moros scoffed at Brown-Jackson’s characterization of Bruen.
“The Jackson and Sotomayor concurrence complains that Bruen is ‘unworkable’ while calling for a return to a standard (means-end scrutiny) that was actually unworkable,” Moros told the Daily Caller News Foundation. “As just one example, from when Heller was decided in 2008 until Bruen was decided in 2022, the Ninth Circuit did not strike down a single gun law even though it heard dozens of cases.”
“It was a test that even more strongly favored the government and drifted massively from the original intent behind the adoption of the Second Amendment,” Moros continued. “Perhaps that’s what Justice Jackson and Sotomayor would prefer, but it was not a ‘workable’ status quo for a meaningful Second Amendment.”
The Supreme Court is slated to release its opinion in Wolford v. Lopez, another case involving the Second Amendment, by the end of its session.
(DCNF)
