By Dave Workman
Editor-in-Chief
While she offered a concurring opinion in last week’s unanimous Supreme Court decision that marijuana users like Texas-born Ali Hemani should not lose their Second Amendment rights, Associate Justice Ketanji Brown Jackson tossed in a revealing caveat.
She calls the “history and tradition” requirement for deciding Second Amendment cases—the center principle established by New York State Rifle & Pistol Association v. Bruen—to be “unworkable” and argues for a return to what civil rights attorney Don Kilmer calls “the judge-empowering balancing tests” known as “means-end scrutiny.”
The ruling in United States v. Hemani, authored by Justice Neil Gorsuch, is seen as a victory for Second Amendment rights by everyone except gun prohibitionists.
Quoted by USA Today, Jonathan Lowy, president of Global Action on Gun Violence, a gun control organization, declared Jackson to be “exactly right.” He contends judges “are not equipped to play historians.”
But Kilmer, the Idaho-based attorney who has been involved with gun rights litigation for many years, spelled it out in a statement to TGM.
“The newest Supreme Court Justice K.B. Jackson, joined by Justice S. Sotomayor, thinks it is too much trouble for judges to have to look up and interpret old statutes and laws to understand what gun laws the authors the Second Amendment assumed were tolerable under a ‘shall not be infringed’ constitutional standard,” Kilmer wrote. “It is notable that the Justice (Elena) Kagan did not join this concurrence. She appears to have accepted the doctrine of interpreting legal documents by objective standards, starting with what the words on the parchment meant when they were written.
“Jackson and Sotomayor both prefer the judge-empowering balancing tests that have gutted the Fifth Amendment’s takings clause, the Fourth Amendment’s warrant requirement, and the First Amendment’s nonsensical commercial speech doctrine,” Kilmer added. “But the constitution itself is more than two centuries old, including its provision for amendment by a super-majority of ‘the people’ to whom all three branches of the federal government owe their allegiance and obedience. Amendment by judicial fiat under any theory is subversive to the central idea of a constitutional republic.”
“Means-end scrutiny” in Second Amendment cases virtually always winds up with rulings upholding state regulations at the expense of gun owners’ rights. In 2022, the high court majority rejected that metric. As Kilmer points out, gun control laws must be analogous to what standards the Framers set when they wrote the Constitution.
Lowy, quoted by USA Today, contends, “While the court was correct that a gummy at bedtime should not automatically disqualify someone from guns, that’s because of 2026 views on marijuana use, not because of 18th or 19th century laws that now determine the fate of all gun laws. Twenty-first century gun violence can’t be solved with 18th century solutions.”
He might get some argument from Second Amendment advocates and conservatives generally on that level, as “18th Century solutions” to criminal violence typically involved long prison sentences or a gallows. And, as the James-Younger gang learned in 1876 and the Dalton gang learned in 1892, the solution sometimes involved being shot to pieces by armed citizens.
Jackson’s concurrence amounts to a spoil sport admission that means-end scrutiny does not pass constitutional muster, as Kilmer explains.
Her perspective is that the judiciary holds the high ground, arguing, “courts measured the strength of the government’s justification for the firearm restriction against the burden that restriction imposed on Second Amendment rights.” And the courts pretty much upheld the government’s position.
Jackson refers to the Bruen ruling as a “failed experiment.” If that were the case, the Hemani ruling might never have happened. Indeed, the case might never have been brought under the “government is always right” philosophy which Jackson seems to support, with her colleague, Justice Sonia Sotomayor along for the ride.
