Sour Grapes: Jackson’s Hemani Concurrence Rips Bruen, Calls for Means-End Restoration

Those who thought the Supreme Court’s unanimous decision in United States v. Hemani, striking down the federal prohibition on gun ownership by anyone using marijuana was too good to be true, need only to carefully read the concurring opinion from liberal Justice Ketanji Brown Jackson to restore their skepticism.

Jackson’s five-page opinion, joined by fellow liberal Sonia Sotomayor, is pure sour grapes. It begins with this remark: “I join the Court’s opinion in full because it correctly applies our decisions in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), and United States v. Rahimi, 602 U. S. 680 (2024). But I continue to believe that we veered off course in Bruen…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.”

Jackson, appointed by anti-gun-rights former President Joe Biden, makes it clear she believes Second Amendment questions should be decided by the discredited “Means-End Scrutiny” formula, which almost invariably favored government restrictions on the right to keep and bear arms. She maintains the “’history and tradition’ metric” (her words) established in the landmark Bruen ruling, announced almost exactly four years earlier, got it wrong. She argues that Bruen makes it difficult for government to do what government does: Erode fundamental, constitutionally protected rights.

“The difficulties Bruen has created are all the more striking when compared to the test it abolished: means-end scrutiny,” she writes

Bruen declared the century-old New York State gun permit law, requiring applicants to demonstrate some need to exercise a fundamental right, to be an unconstitutional violation of the Second Amendment. That means it was always unconstitutional, and that for more than 100 years, honest New Yorkers were deprived of their right to bear arms by a bureaucracy which wanted them to remain disarmed.

Means-end scrutiny—an approach lower courts quietly embraced after the 2008 high court ruling in District of Columbia v. Heller—perpetuated that legal perversion until Justice Clarence Thomas’ majority opinion set things straight.

Bill Sack, director of Legal Operations for the Second Amendment Foundation, summed it up via email.

“Justice Jackson is building a reputation for expressing her frustration when she can’t rule in favor of the government,” Sack told Ammoland. “She expressed concern in Murthy that the First Amendment ‘hamstrings’ the government from censoring speech, and now in Hemani she bemoans the Bruen test once again as it requires her to rule in favor of civil rights.”

His colleague at SAF, Konstadinos Moros, director of Legal Research and Education, added via email, “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. 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. Perhaps that’s what Justice Jackson and Sotomayor would prefer, but it was not a ‘workable’ status quo for a meaningful Second Amendment.” 

Still, in her concurring opinion criticizing Bruen, Jackson doesn’t skip a beat, rattling off a quartet of cases in which the courts “regularly assess whether the government’s justification for a law is legitimate and whether the law’s operation is sufficiently tailored to promote that justification” when considering other constitutional rights. The cases she mentioned involved First, Fifth and Fourteenth amendment questions.

“Constitutional adjudication through means-ends scrutiny is squarely within the competence of courts,” Jackson insists in her concurrence. “There is no reason why an approach that has worked well enough in these other contexts would pose a problem only for Second Amendment adjudication.”

Well, yes there is a reason, gun rights activists repeatedly argue. They say it is stated clearly in the Second Amendment: “The right of the people to keep and bear arms shall not be infringed.”

Justice Jackson contends in the closing paragraph of her Hemani concurrence that the Bruen ruling is somehow a failure because it requires the courts to make decisions based on history, not modern governmental whims.

“Adding to Bruen’s weaknesses,” Justice Jackson writes, “is the fact that its framework provides no clear role for this kind of tailoring discussion. But such analysis is key. Scrutinizing the fit between a challenged law’s justification and its operation is an essential part of any sensible framework for Second Amendment adjudication. In a future case that squarely presents the question, we should consider whether to retire the failed Bruen experiment and return to an explicit assessment of Congress’s ends and means when deciding the constitutionality of firearm restrictions.”

Recall that liberal Justice Stephen Breyer dissented in the 2022 Bruen ruling, and that Jackson was appointed to fill his seat when he retired.

When Jackson wrote a concurring opinion in the 2024 Rahimi decision, she led off with this in the first paragraph: “This case tests our Second Amendment jurisprudence as shaped in particular by New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022). I disagree with the methodology of that decision; I would have joined the dissent had I been a Member of the Court at that time.”

She followed up with this observation: “I write separately because we now have two years’ worth of post-Bruen cases under our belts, and the experiences of courts applying its history-and-tradition test should bear on our assessment of the workability of that legal standard. This case highlights the apparent difficulty faced by judges on the ground. Make no mistake: Today’s effort to clear up “misunderst[andings],” ante, at 7, is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them.”

Her concurrence is begrudging and is pure spoil sport. Justice Jackson’s dilemma is that she essentially finds herself in the same position as the government in Hemani. She’s stuck with a rule of law she doesn’t like.

As wisely observed by Alan Gottlieb at the Citizens Committee for the Right to Keep and Bear Arms, the government’s broad-brush prohibition on gun ownership by people who use marijuana squarely collides with the government’s traditional approach to people who use alcohol. CCRKBA joined in a January amicus brief supporting Texas-born Ari Hemani, who fought this case to the highest court in the land, and won.

“The federal statute, as the court rightly held, casts too wide a net,” Gottlieb stated in reaction to the Hemani ruling. “This one-size-fits-all approach to law enforcement has never worked. As we noted in our brief, historically the government has never prohibited sober people from owning firearms because they sometimes drank alcohol. The same logic applies here, especially since so many states now allow recreational marijuana use, and its use as a prescribed medical aid are widely recognized.”

Justice Jackson is clearly at odds with the Court’s landmark Bruen ruling and the guidelines it sets down for deciding Second Amendment cases. That’s probably not going to change as future cases come before the Court.

Wolford and Hemani: Supreme Court Decisions in Second Amendment Cases Expected Soon

Supreme Court Rejects Gun Ban for Marijuana User in Major 2A Win

About Dave Workman

Dave Workman is a senior editor at TheGunMag.com and Liberty Park Press, author of multiple books on the Right to Keep & Bear Arms, and formerly an NRA-certified firearms instructor.