The Supreme Court handed down a unanimous victory for Second Amendment advocates on Thursday, ruling that a regular marijuana user cannot be prosecuted under federal law for possessing a firearm. All nine justices agreed on the outcome. But Justices Ketanji Brown-Jackson and Sonia Sotomayor couldn't resist using their concurrence to launch a broadside against the very framework that made the ruling possible, calling on the Court to overturn its landmark 2022 decision in New York State Rifle and Pistol Association v. Bruen.
The case, Hemani v. United States, challenged 18 U.S.C. § 922(g)(3), the federal statute that bars unlawful drug users from possessing firearms. Justice Neil Gorsuch authored the majority opinion, and the Daily Caller News Foundation reported that the 9-0 result marked a clear application of the history-and-tradition test established in Bruen.
That should have been the headline: a clean, cross-ideological win for individual gun rights. Instead, Brown-Jackson and Sotomayor filed a concurring opinion that read less like agreement and more like a roadmap for future opponents of the Second Amendment.
The majority opinion found that the federal government's attempt to justify the marijuana-user gun ban by analogy to historical "habitual drunkard" laws fell apart under scrutiny. Breitbart reported Gorsuch writing that the government's analogy "fails under every measure it asks us to consider: The historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways."
During oral arguments, Gorsuch had pressed the government's position with a pointed hypothetical. Fox News reported his question: "We don't even know the quantity of how much he uses every other day. What if he took one [THC-laced] gummy bear with a medical prescription. He had one to help him sleep every other day. Disarm him for life?"
Justice Amy Coney Barrett was equally direct, saying during arguments: "With the marijuana, I just don't see anything in the scheme that actually reflects Congress's judgment that this makes someone more dangerous."
The case produced unusual alliances. The Associated Press noted that the Trump administration and gun-control groups had defended the restriction, while the NRA and ACLU joined forces against it. The ACLU's legal director, Cecillia Wang, said her organization was "deeply concerned with the potential of this statute to basically give federal prosecutors a blank check."
The same statute was used to convict Hunter Biden on firearm possession charges in 2024, though Biden was later pardoned by his father. The Court's decision to unanimously curb the law now raises obvious questions about the statute's broader enforceability.
Brown-Jackson and Sotomayor joined the majority opinion in full, then turned around and filed a separate concurrence arguing the entire analytical framework should be scrapped. Brown-Jackson wrote 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." She called Bruen "unworkable."
Her concurrence laid out what she described as a simpler alternative: asking how severe a law's burden on Second Amendment rights is, whether the government has a strong interest in preventing firearm possession by those "who pose a special danger of misuse," and whether the specific ban is "sufficiently tailored to that interest."
"Applying means-end scrutiny to firearm restrictions like the 18 U.S.C. §922(g)(3) prosecution before us would be straightforward. 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?"
Brown-Jackson acknowledged that neither party had asked the Court to overturn Bruen. She wrote: "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."
That qualifier did little to soften the signal. Two sitting justices used a case they won to publicly campaign for dismantling the legal standard that protects the individual right to keep and bear arms from the kind of interest-balancing that gutted it for decades.
Konstadinos Moros, director of legal research and education at the Second Amendment Foundation, offered a sharp rebuttal. He told the Daily Caller News Foundation that Brown-Jackson and Sotomayor were calling for a return to a standard that was "actually unworkable", not in theory, but in documented practice.
"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."
That record is worth sitting with. Fourteen years. Dozens of Second Amendment challenges. Zero laws struck down in the nation's largest federal appellate circuit. That was the "workable" framework Brown-Jackson wants to restore.
Moros was blunt about what that framework really meant for gun owners: "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. Perhaps that's what Justice Jackson and Sotomayor would prefer, but it was not a 'workable' status quo for a meaningful Second Amendment."
The internal dynamics among the Court's liberal wing are themselves worth watching. Justice Elena Kagan has previously broken with Brown-Jackson in pointed terms, and she notably did not join the Brown-Jackson/Sotomayor concurrence in Hemani. Moros flagged this on social media, writing that it was "interesting that Kagan did not join the Jackson/Sotomayor dissent that calls for overturning Bruen and moving back to tiered scrutiny."
National Review reported that Justice Clarence Thomas, who authored the original Bruen opinion in June 2022, wrote his own separate concurrence in Hemani, suggesting that § 922(g) may exceed congressional Commerce Clause power entirely. Thomas wrote that the question "merits a closer look in an appropriate case," signaling a potential future challenge to the broader federal gun law.
In Bruen, Thomas had cited historical gun laws and debate around the ratification of the Fourteenth Amendment to strike down New York's "good cause" requirement for pistol permits. That decision drew fierce opposition from Democrats and gun-control advocates. But four years later, its framework has now produced a unanimous ruling, including votes from every liberal justice on the bench.
The Court is also expected to release its opinion in Wolford v. Lopez, another Second Amendment case, before the current session ends. The specifics of that case were not detailed, but the Hemani concurrence makes clear that at least two justices see every gun case as an opportunity to relitigate Bruen itself.
That posture fits a broader pattern. Some Democrats have gone so far as to label the Supreme Court "illegitimate" when its rulings cut against progressive priorities. The Brown-Jackson/Sotomayor concurrence is a more polished version of the same impulse, an unwillingness to accept settled precedent when it protects a right the left would rather see diminished.
The New York Post noted that during oral arguments, Brown-Jackson herself had questioned the government's defense of the statute, saying: "It seems like you're asking us to trust Congress' legislative judgment on whether unlawful drug users pose a high risk of misuse, but that this test doesn't provide us a way to check that in any meaningful sense." She was right about the statute. But her proposed solution, returning to means-end scrutiny, would hand that same unchecked power back to courts that spent fourteen years rubber-stamping every gun restriction placed in front of them.
The Gorsuch majority noted that the government was, as National Review paraphrased, "awkwardly positioned to suggest that the millions of Americans who now regularly use marijuana are categorically and unusually dangerous." That observation alone explains why the ruling was 9-0. The statute was indefensible on its own terms.
But the concurrence reveals something more important than the case itself. Brown-Jackson and Sotomayor joined a unanimous pro-gun-rights ruling and still managed to argue that the Court's method for protecting gun rights should be abandoned. Even in cases where near-unanimous agreement crosses ideological lines, some justices apparently cannot resist planting seeds for the next fight.
The history-and-tradition test in Bruen forced courts to measure gun laws against the Constitution's original meaning, not against whatever policy goal a legislature or judge happens to favor. That's why it produced a 9-0 result here. And that's exactly why two justices want it gone.
When someone votes your way but writes a separate opinion explaining why the rules should change next time, pay attention to the opinion, not the vote.