The most useful sentence written for American gun owners this term did not come from the majority in Wolford v. Lopez, No. 24-1046 (U.S. June 25, 2026). It came from the dissent. Justice Ketanji Brown Jackson, joined by Justice Sotomayor, set out to attack the 6-3 decision striking down Hawaii’s no-carry default rule (the “vampire rule”), and in the process she described the Court’s method with a candor that will help Second Amendment claimants in every circuit for years to come. She meant her words as an indictment. I read them as a confession, and a gift.
What Jackson Was Trying to Do
Justice Alito wrote the majority opinion, joined by five colleagues; Justice Kagan filed a separate, shorter dissent. The holding itself matters, but I have always taught that the more important question is not who won — it is how they won. The methodology, the interpretive moves, the explanations a court commits to paper are what bind the lower courts going forward. That is where Justice Jackson, trying to discredit the majority, instead memorialized the a very-favorable pro-2A rule.
Her complaint was that the majority reads New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), to put a thumb on the scale for armed carry. To make that charge, she had to state the method plainly. She did. And thank God she did!
The “One-Way Ratchet” Passage
Here is the heart of Justice Brown Jackson’s dissent:
Worse, the majority’s new methodology is a one-way ratchet: It inevitably works only to the benefit of armed carry by removing any real burden of proof on gun owners at step one. The majority simply equates the ability to carry a gun with the right to carry anywhere and everywhere. Because of that, it then assumes that any impediment to carrying qualifies as a burden on the right. The upshot of the majority’s view of Bruen’s first step is thus that any law that regulates the carrying of firearms is presumptively unconstitutional.
Read that last clause again. Any law that regulates the carrying of firearms is presumptively unconstitutional. That is not my paraphrase. That is a sitting Justice, writing in dissent, describing the operative rule. She intends it as alarm. For those supporting the Second Amendment, it is the rule we have been arguing for since Bruen came down.
Why the Concession Is So Valuable
The structure of Bruen is two steps, and the order is everything. Step one is the plain text. It is a linguistic inquiry: you take the words of the Second Amendment as the ordinary American understood them in 1791, and Heller, 554 U.S. 570 (2008), has already supplied the definitions of “keep,” “bear,” “arms,” and “the people.” If the plain text covers your conduct the law restricting you is presumptively unconstitutional, and the burden shifts to the government. Step two is where history lives, and history is the government’s burden to carry, not yours.
The whole anti-gun project in the Fourth, Second, First, and Seventh Circuits has been to smuggle the historical analysis — the “in common use” question, “dangerous and unusual,” and the rest — forward into step one, where the rights claimant bears the burden. That move is methodologically wrong, and I have said so at length, including in the Georgetown Journal of Law & Public Policy. The majority in Wolford slammed that door. Justice Barrett’s concurrence reinforces it; her footnote one rejects importing regulatory-tradition limits into the plain-text step.
But Justice Jackson states the principle even more cleanly than the majority does:
Instead, the majority seeks to confine history to Bruen’s second step—when the government must identify a history and tradition that relevantly limits the scope of the Second Amendment right.
Justice Brown Jackson is right that this is what the majority did. She is right that history is confined to step two. She is right that step one asks only whether the plain text covers the conduct. Her objection is that this “eliminates step one’s effectiveness” as a filter. From the claimant’s chair, that is the point.
How This Gets Used
If I am an attorney in a magazine case, a suppressor case, or an AR-15 case anywhere in the country, I am quoting Justice Jackson verbatim. The argument writes itself: do not take my word for it, and do not take only the majority’s word for it — read what the dissent concedes the majority requires. History belongs to the government at step two. The “in common use” test and the “dangerous and unusual” inquiry sit at the historical tradition level, which means the burden is on the government to prove an AR-15 or a standard magazine is not in common use for lawful purposes. That burden will be mostly unmeetable for government defendants, which is precisely why the lower courts kept trying to relocate it.
Justice Jackson, joined by Justice Sotomayor, has now described that allocation in her own words. She calls it a one-way ratchet. I will take the ratchet. A ratchet that turns only one way toward the plain text of an enumerated right is exactly what the Founders built, and a dissenting Justice has just certified, for the record, how it works.
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.