The headline win in United States v. Hemani was the fall of the federal ban on gun possession by marijuana users. The fight that will outlast it is the one Justice Ketanji Brown Jackson opened in her concurrence. Joined by Justice Sotomayor, she agreed with the result but broke from the Court’s reasoning, calling for the return of “interest balancing” — the regime of tiers of scrutiny that let judges weigh away the right to keep and bear arms whenever the government’s stated interest looked weighty enough. Seven Justices, including Justice Elena Kagan, refused to follow her. But her argument will be quoted in every brief defending an AR-15 ban from here forward, and it deserves a direct answer.
The Charge: Bruen Is “Unworkable”
Justice Jackson’s indictment is that the Court’s method is simply too hard for judges to apply. She wrote in her Hemani concurrence:
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.
Her premise is that New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), “is unworkable” because it forces judges into “the unfamiliar and difficult tasks of sifting through centuries-old evidence” to resolve “contested historical questions.” She has pressed this view since her concurrence in United States v. Rahimi, 602 U.S. 680 (2024). It is wrong, and it is wrong in a way worth explaining.
Applying History Is the Daily Work of Courts
There is nothing “unfamiliar” about a judge consulting history. It is the entire job. Every case a court decides arises from events that already happened, governed by law written before those events occurred. A judge interpreting a statute reads a text enacted in the past. A judge applying the common law traces doctrines built over centuries. A judge construing the Constitution works from a charter more than two hundred years old. Lawyers are trained from their first week of school to take an old rule and apply it to a present dispute. To brand that exercise “unfamiliar and difficult” is to describe the practice of law itself and then pronounce it impossible.
The Task Judges Truly Cannot Perform
What judges are not trained to do is run a social-science seminar. Interest balancing does not ask a court to find the law; it asks the court to referee a contest of statistics. Once a judge concedes that a regulation burdens the right — and balancing begins only after that concession — the government gets a second chance to win by marshaling public-health experts who testify that firearms are dangerous and their benefits slight, until the judge declares the state’s interest important enough to override the Constitution. That is not legal reasoning. It is policymaking in a robe, and it awards the outcome to whichever side fields the more persuasive expert.
It is also a recent invention. The compelling-interest test that anchors interest balancing did not enter our constitutional law until the middle of the twentieth century. It has no founding-era pedigree, which is exactly why it cannot govern a right the founding generation fixed in writing. The balance Justice Jackson wants judges to strike was already struck. The Bill of Rights is itself a ledger of the costs a free people accept to remain free — the Fourth Amendment lets some guilty defendants walk, the Fifth lets the accused stay silent — and the Second Amendment is one more entry in that ledger, weighed and ratified in 1791.
A Case the Government Should Never Have Pushed
A word about how we arrived here. The Trump administration carried this prosecution to the Supreme Court even though it grew out of a terrorism investigation — Hemani had been scrutinized over suspected ties to the Iranian Revolutionary Guard. The charge itself was only drug-user gun possession, but pressing so unsympathetic a defendant invited the Court to write a bad rule binding on everyone. That is precisely the kind of case that hands a Justice like Jackson her opening. The gamble paid off this time. It should not be repeated.
What She Left Standing
For all her fire at Bruen, Justice Jackson never laid a finger on District of Columbia v. Heller, 554 U.S. 570 (2008), or McDonald v. City of Chicago, 561 U.S. 742 (2010) — the decisions that protect arms “in common use” and permit bans only on those that are “dangerous and unusual.” Those holdings, not the discarded scrutiny tiers, are the binding standard in the AR-15, magazine, and suppressor cases now climbing toward the Court. Interest balancing drew two votes and could not find a third. The methodology that decides the next fight came through Hemani intact.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.