The Supreme Court is about to confront its most embarrassing decision

Judges rarely complain openly about the Supreme Court, for the same reason that most people do not publicly chastise their bosses. Attacking your boss is a good way to ensure that your own work will be discounted — or worse.

So it’s remarkable just how many judges have published opinions criticizing the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen (2022), a decision by all six of the Court’s Republicans that instructs lower court judges on how they should handle Second Amendment cases.

Or, at least, Bruen purports to provide lower courts with this kind of guidance. As one federal judge complained in a 2023 opinion, the “unique test” the Republican justices came up with in Bruen “does not provide lower courts with clear guidance.” Courts, a different federal appellate judge wrote, “are struggling at every stage of the Bruen inquiry.” 

Indeed, in her concurring opinion in United States v. Rahimi (2024), the Supreme Court’s only attempt to interpret Bruen since that decision was handed down, Justice Ketanji Brown Jackson quoted a dozen different judicial opinions complaining that Bruen simply does not work. One Trump appointee protested Bruen’s “inconsistent and amorphous standard” and warned that it “created mountains of work for district courts that must now deal with Bruen-related arguments in nearly every criminal case in which a firearm is found”

Briefly, Bruen held that for nearly any gun law to survive a constitutional challenge, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” To meet this burden, government lawyers must show that the modern-day gun law they are defending is sufficiently similar to “analogous regulations” that existed when the Constitution was framed.

And just how “analogous” must these long-forgotten laws be? As the dozen judges quoted by Justice Jackson show, no one really knows. In 2020, the federal government alone charged more than 14,000 defendants with firearm-related crimes. Thanks to Bruen, every single one of those cases can descend into a Mad Hatter–like inquiry into how a raven resembles a writing desk.

Which brings us to Wolford v. Lopez, the first of two Second Amendment cases that the Court plans to hear in its current term. Wolford, which the justices will hear on January 20, is poised to be the Court’s second-ever decision explaining what the hell Bruen means.

A humbler Court would recognize that Bruen is a failure and overrule that decision — prior to Bruen, every federal appeals court used a two-step framework (which I explain in more detail here) to analyze Second Amendment cases. The Court could simply restore this framework, which worked perfectly well and did not create the same confusion among judges.

But that outcome is unlikely. Historical analysis is currently fashionable among Republican judges, many of whom identify with originalism — an approach to constitutional cases which fixates on how words were understood more than 200 years ago. In Bruen, the Republican justices attempted to build a framework for interpreting an entire constitutional amendment that is grounded in originalism. Overruling Bruen means admitting that this originalist project failed.

Still, the Wolford case should give pro-gun Republicans pause for an unexpected reason: The biggest advantage the lawyers defending a Hawaii gun law have on their side is the Court’s cockamamie reasoning in Bruen.

What happens when originalism favors liberals?

The plaintiffs in Wolford, three gun owners and a pro-gun advocacy group, challenge a fairly clever Hawaii law that appears to be designed to undermine the result the Court reached in Bruen.

Bruen struck down a 108-year-old New York state law that required anyone who wanted to carry a handgun in public to demonstrate “proper cause” before they could obtain a license allowing them to do so. The Hawaii law at issue in Wolford imposes similarly strict restrictions on public carry through a different means. It makes it a crime to bring a gun onto private property “unless the person has been given express authorization to carry a firearm on the property by the owner, lessee, operator, or manager of the property.”

Thus, the practical effect of Hawaii’s law is to remove guns from most shops, hotels, restaurants, and other places of business. Most business owners aren’t going to put out a sign announcing that guns are allowed inside. And few gun owners are likely to enter such a business without their firearm, track down the manager, obtain permission to bring their gun inside, and then go retrieve the weapon.

If Bruen were a coherent decision that applied normal legal reasoning, in other words, the Wolford plaintiffs would have a fairly clear cut case. Typically, the Supreme Court does not allow states to bypass its decisions by concocting Rube Goldberg–like devices to achieve ends that the Court has already determined are unconstitutional.

And yet, somewhat ironically, the best thing that Hawaii’s lawyers have going for them in Wolford is the nonsensical historical framework laid out in Bruen.

In their brief to the justices, Hawaii’s lawyers identify various colonial and early American state laws that closely resemble the Hawaii statute forbidding gun owners to bring their weapons onto private land without the landowner’s permission.

This list includes a 1771 New Jersey law barring someone from bringing “any gun on any Lands not his own, and for which the owner pays taxes, or is in his lawful possession, unless he has license or permission in writing from the owner.” It also includes a similar 1721 Pennsylvania law preventing someone from hunting or bringing a gun onto another person’s land without “Lisence [sic] or Permission from the Owner of any such Lands or Plantation,” and a 1763 New York law making it unlawful to carry a gun on “inclosed Land” without “License in Writing first had and obtained for that Purpose from such Owner, Proprietor, or Possessor.”

It appears, in other words, that Americans around the time of the nation’s founding and the ratification of the Second Amendment were quite comfortable with laws banning gun possession on private land without the land owner’s permission. That should be enough to uphold Hawaii’s law under Bruen’s “historical tradition of firearm regulation” standard. But it’s not that simple.

Bruen doesn’t actually prevent the justices from deciding Wolford however they choose

Wolford should be an awkward case for the Court’s Republicans, because the largely pro-gun framework they announced in Bruen doesn’t actually point to a pro-gun result in this case. Realistically, however, the Bruen framework is sufficiently malleable that these justices can reach whatever result they want in Wolford.

Consider, for example, Rahimi, the only post-Bruen case the Court has handed down interpreting that decision. 

Rahimi involved a cartoonishly violent individual who, when the Court decided this case, was accused of committing six different shooting crimes — that is, crimes where he actually discharged a firearm. In one of these incidents, he allegedly fired his gun at a bystander who witnessed him beating the mother of his child. A majority of the justices voted to uphold his conviction under a federal law that prohibits many people who are subject to domestic violence restraining orders from possessing a gun.

Chief Justice John Roberts, who wrote the majority opinion in Rahimi, primarily reasoned that this federal law was sufficiently similar to Founding Era laws that required individuals who were believed to be likely to engage in violence to post a bond, which they would forfeit if they “broke the peace.”

In dissent, meanwhile, Justice Clarence Thomas argued that these bond-posting laws were not sufficiently similar to the modern-day ban on carrying a gun while under a restraining order, because the Founding Era laws “imposed a far less onerous burden.” They neither disarmed individuals nor incarcerated them if they were later found with a gun.

Because Bruen’s “analogous regulations” test is so vague, both Roberts and Thomas made plausible arguments: Bruen didn’t fully explain just how similar a modern law must be to a colonial or early American law in order to survive judicial review. Indeed, if anything, Thomas had the stronger argument that the law in Rahimi should have been struck down under Bruen. 

Bruen said that “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” Violence between romantic partners is a societal problem that existed well before the 18th century. But every state permitted married partners to beat their spouses until 1871, when the Alabama Supreme Court ruled that a husband and wife “may be indicted for assault and battery upon each other.”

Bruen, in other words, does not actually tell judges how to decide gun cases — as so many lower court judges have complained. It merely insists that they must tell a story about whether a modern law is similar to a very old law.

Indeed, there is empirical evidence that Bruen gives judges broad leeway to decide gun cases however they choose. A 2023 paper by scholars Eric Ruben, Rosanna Smart, and Ali Rowhani-Rahbar indicates that “Bruen has not meaningfully constrained judges” and has instead freed them to decide gun cases according to their “judicial ideology.” The paper finds that “judges appointed by Republican presidents are 1.8 times as likely” to rule that a gun law violates Bruen “as judges appointed by Democratic presidents.”

Bruen, in other words, is not law. Rather than constraining how judges decide cases, it merely requires them to cite historical sources in an opinion that reaches whatever conclusion aligns with their politics. On a 6-3 Republican Supreme Court, that means that the Hawaii law at issue in Wolford is likely to fall.