MA GUN LAWYER

By Attorney William S. Smith

As I mentioned in my prior article, on June 18, 2026, the United States Supreme Court issued its unanimous decision in United States v. Hemani, holding that the federal government’s prosecution of Ali Hemani under 18 U.S.C. § 922(g)(3)—the federal prohibition on firearm possession by an “unlawful user” of a controlled substance—violated the Second Amendment. Justice Neil Gorsuch authored the Court’s opinion. The Court concluded that the government failed to demonstrate a historical tradition supporting the sweeping disarmament of non-dangerous marijuana users.

I had the great opportunity to meet Justice Gorsuch in 2019. It was good to see that he wrote the Hemadi decision.

The decision serves as a forceful reaffirmation of the methodology established in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), which requires courts to evaluate modern firearm regulations against the Nation’s historical tradition of firearm regulation.

Yet perhaps the most revealing aspect of Hemani is Justice Ketanji Brown Jackson’s dissenting opinion. While Justice Jackson ultimately agreed that Hemani should prevail, her dissent sharply criticized the historical-analysis framework employed in modern Second Amendment jurisprudence. Her objections, however, are ultimately unpersuasive and, if taken seriously, would undermine constitutional adjudication far beyond the Second Amendment.

Jackson’s Complaint: Judges Should Not Be Historians

Justice Jackson’s principal criticism is familiar. She suggests that courts are ill-equipped to perform detailed historical analysis and that judges lack the expertise necessary to determine the meaning and significance of centuries-old laws, practices, and traditions.

The problem with this argument is simple: judges have always engaged in historical analysis. They have done so not just occasionally. They have largely done so with little or no reluctance. They have done so routinely, in fact. Indeed, historical inquiry is among the most traditional judicial functions in American constitutional law. I learned in law school how to conduct a legislative history, for example. It isn’t an impossible thing to do.

Historical Analysis Is Routine in First Amendment Cases

Justice Jackson’s criticism is especially difficult to reconcile with First Amendment jurisprudence. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court examined the historical origins of the law of seditious libel and the founding generation’s understanding of freedom of the press. In District of Columbia v. Heller, Justice Scalia noted that the Court routinely undertakes historical analysis in numerous constitutional contexts, including free speech, confrontation rights, jury trial rights, and separation-of-powers disputes.

The Supreme Court’s modern First Amendment doctrine repeatedly relies upon historical categories of speech that were traditionally outside constitutional protection. Courts regularly ask whether a particular restriction falls within historically recognized exceptions such as:

• Defamation;
• Obscenity;
• Fighting words;
• True threats;
• Incitement.

In United States v. Stevens, 559 U.S. 460 (2010), the Court explained that categorical exceptions to free speech protection derive from historical tradition rather than modern balancing tests. Likewise, in Counterman v. Colorado, 600 U.S. 66 (2023), the Court examined the historical understanding of “true threats.”

No one suggested that judges were incapable of conducting historical analysis in those cases. So, then why is it, according to Justice Jackson and many lower court judges in the wake of Bruen, such an insurmountable challenge when it comes to the Second Amendment?

The Court Does the Same Thing Under the Fourth Amendment

The Fourth Amendment provides another example. When courts determine whether a particular governmental intrusion constitutes a “search,” they frequently examine historical understandings existing at the time of the Founding. The Supreme Court’s decision in United States v. Jones, 565 U.S. 400 (2012), relied extensively upon eighteenth-century trespass principles. Likewise, Carpenter v. United States, 585 U.S. 296 (2018), examined historical understandings of privacy, property, and governmental intrusion.

Again, judges routinely perform historical analysis. No one claims in those other areas of the law that courts should abandon constitutional interpretation because sifting through history is difficult.

The Sixth Amendment Requires Historical Inquiry

The same is true under the Sixth Amendment. In Crawford v. Washington, 541 U.S. 36 (2004), Justice Scalia conducted an extensive examination of English common law, colonial practices, and founding-era understandings of confrontation rights. Indeed, Crawford may be one of the most historically driven constitutional decisions in modern Supreme Court history.

If Justice Jackson’s criticism were applied consistently, Crawford would be impossible. Yet few constitutional scholars would seriously suggest abandoning the historical foundations of the Confrontation Clause.

Original Meaning Is the Foundation of Constitutional Interpretation

At its core, Justice Jackson’s critique is really a critique of originalism itself.

But the Constitution is not a “living” policy document. It is law. It is the supreme law of the land. And law must mean something fixed. If it does not, how could anyone today be charged under a criminal statute that is 120 years old, for example?

As Chief Justice Marshall recognized in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the judicial duty is to determine what the law is—not what judges wish it to be. The Constitution was enacted at specific points in history. Its provisions carry the commonly understood meaning they possessed when adopted.

The Second Amendment cannot be uniquely exempted from historical analysis simply because some judges dislike the outcomes history produces.

Hemani Demonstrates Why Bruen Matters

The facts of Hemani illustrate precisely why Bruen‘s historical approach is necessary.

The federal government sought to imprison Hemani for up to fifteen years merely because he possessed a firearm while occasionally using marijuana. The government did not allege that he was intoxicated while armed. It did not claim he was violent. It did not claim he was dangerous. It did not claim he had misused a firearm in any way.

Instead, the government argued that modern policymakers had determined marijuana users should be disarmed. Under the pre-Bruen balancing approach, many courts would simply have deferred to that legislative judgment. Bruen changed that.

Instead of asking whether judges think a law is a good idea, courts must ask whether the Constitution permits it. The government was therefore required to identify analogous historical traditions supporting such disarmament. It failed.

As Justice Gorsuch explained, historical restrictions on “habitual drunkards” were materially different from the sweeping federal prohibition imposed by § 922(g)(3). The historical analogues targeted different conduct, different individuals, and operated in fundamentally different ways.

The Most Troubling Part…

Perhaps the most troubling aspect of Justice Jackson’s approach is its apparent invitation to return to the interest-balancing framework that the Supreme Court expressly rejected in Bruen. The danger of such a regime is not merely theoretical. For decades before Bruen, courts routinely upheld nearly every firearm restriction presented to them by accepting governmental assertions that the law promoted “public safety.” In practice, the individual right protected by the Second Amendment often became little more than a rhetorical acknowledgment followed by judicial deference to legislative judgments.

Isee this virtually every day in my law practice. In court hearing after court hearing, the attorney for the licensing authority will say “But….public safety, your Honor.” The US Supreme Court has said otherwise. This right is not to be sacrificed on the alter of the weighning of interests.

If courts are once again permitted to weigh the government’s asserted interests against the individual’s constitutional rights, the likely result in jurisdictions such as Massachusetts is entirely predictable: courts will almost invariably conclude that the state’s interest in public safety outweighs the individual’s interest in possessing arms for self-defense. Such an approach would effectively reduce the Second Amendment to a second-class right, dependent not upon constitutional command but upon the subjective policy preferences of judges and government officials. Constitutional rights exist precisely to place certain liberties beyond the reach of ordinary political balancing.

Just as courts would never permit the government to suppress unpopular speech simply because officials claimed doing so would promote public safety, the right to keep and bear arms cannot be allowed to rise or fall based solely upon a judge’s assessment of competing policy interests.

The lesson of Bruen, reaffirmed in Hemani, is that constitutional rights are protected by enduring constitutional principles, not by ad hoc judicial calculations of whether government officials have identified a sufficiently important policy objective.