Justices rarely complain openly about the Supreme Court, for the same reason most people don’t publicly chastise their bosses. Attacking your boss is a good way to ensure that your work will be cut – or worse.
So it’s remarkable how many justices have published opinions critical of the Supreme Court’s decision New York State Rifle & Pistol Ass’n v. Bruen (2022), a decision by all six Republicans on the Court instructing lower court judges on how they should handle Second Amendment cases.
Or at least The bridge aims to provide lower courts with this type of guidance. As one federal judge complained in a 2023 opinion, the “unique test” that Republican judges came up with in The bridge “does not provide clear guidance to lower courts.” The courts, another federal appeals judge wrote, “are fighting every step of the Bruen inquiry.”
Indeed, in her competing opinion in United States v. Rahimi (2024), the Supreme Court’s only attempt to interpret The bridge since that decision was handed down, Justice Ketanji Brown Jackson has cited a dozen different judicial opinions complaining that The bridge it just doesn’t work. A Trump appointee protested The bridgeits “inconsistent and amorphous standard” and warned that it “has created mountains of work for district courts that must now deal with The bridge-related arguments in almost all criminal cases in which a firearm is found”
Short, The bridge argued that for almost any gun law to survive a constitutional challenge, “the government must demonstrate that the regulation is consistent with this nation’s historic tradition of regulating firearms.” To meet this burden, government lawyers must show that the modern gun law they defend is sufficiently similar to the “analogous regulations” that existed when the Constitution was drafted.
And how “analogous” must these long-forgotten laws be? As the ten justices cited by Justice Jackson show, no one really knows. In 2020, the federal government alone charged more than 14,000 defendants with firearms offenses. Thanks to The bridgeeach of these cases can devolve into a Mad Hatter-like inquiry into how a raven resembles a desk.
Which brings us to Wolford v. Lopezthe first of two Second Amendment cases the Court plans to hear in the current term. Wolfordwhich the justices will hear on January 20, is about to be the Court’s second decision explaining what the The bridge means.
A humbler Court would recognize this The bridge is a failure and reverse that decision – before The bridgeeach federal appeals court has used a two-step framework (which I explain in more detail here) to review Second Amendment cases. The Court could simply restore this framework, which worked perfectly and did not create the same confusion among judges.
But this outcome is unlikely. Historical analysis is currently fashionable among Republican judges, many of whom identify with originalism — an approach to constitutional cases that fixes on how words were understood more than 200 years ago. In The bridgethe Republican judiciary attempted to construct a framework for interpreting an entire constitutional amendment that rests on originalism. cancellation The bridge it means admitting that this originalist project has failed.
However, the Wolford case should give pro-gun Republicans pause for an unexpected reason: The biggest advantage lawyers defending a Hawaii gun law have on their side is the Court’s corrupt reasoning in The bridge.
What happens when originalism favors liberals?
The plaintiffs in Wolfordthree gun owners and a pro-gun advocacy group are challenging a rather clever Hawaii law that appears designed to undermine the Court’s result in The bridge.
The bridge overturned a 108-year-old New York state law that required anyone who wanted to carry a gun in public to show “good cause” before they could get a license to do so. Hawaii law under discussion in Wolford imposes equally strict restrictions on public transport by other means. It is a crime to bring a firearm on private property “unless the person has been given express permission to carry a firearm on the property by the owner, tenant, operator or manager of the property.”
Thus, the practical effect of Hawaii’s law is to remove guns from most stores, hotels, restaurants and other places of business. Most business owners will not put up a sign that says guns are allowed inside. And few gun owners are likely to walk into such a business without their firearm, track it down to the manager, get permission to bring their gun inside, and then go retrieve the gun.
If The bridge were a coherent decision that applied normal legal reasoning, in other words, Wolford the plaintiffs would have a fairly clear case. Ordinarily, the Supreme Court does not allow states to circumvent its decisions by creating Rube Goldberg-like devices to achieve ends that the Court has already determined to be unconstitutional.
And yet, somewhat ironically, the best thing Hawaii lawyers have Wolford is the meaningless historical framework established in The bridge.
In their brief to the judges, Hawaii lawyers identify various colonial and primary US state laws that closely resemble the Hawaii statute that prohibits gun owners from bringing their guns onto private land without the landowner’s permission.
This list includes a 1771 New Jersey law that prohibits anyone from bringing “any gun into any Land not his own, and for which the owner pays taxes, or is in his lawful possession, unless he has a license or written permission from the owner.” It also includes a similar law from 1721 in Pennsylvania that prevents anyone from hunting or bringing a gun onto another person’s land without a “Licence”. [sic] or the permission of the owner of any such lands or plantations,” and a New York law of 1763 making it unlawful to carry a weapon on “enclosed ground” without “License in writing having first been had and obtained for that purpose from such owner, proprietor, or possessor.”
It seems, in other words, that Americans around the time of the nation’s founding and the ratification of the Second Amendment were quite comfortable with laws prohibiting the possession of guns on private land without the landowner’s permission. That should be enough to comply with Hawaii law The bridgethe “historical tradition of firearms regulation” standard. But it is not that simple.
The bridge it does not actually prevent the judges from deciding Wolford however they choose
Wolford should be an awkward case for Court Republicans because the largely pro-gun framework they announced in The bridge does not actually indicate a pro-gun result in this case. Realistically, however, The bridge the framework is malleable enough that these judges can reach whatever result they want Wolford.
Consider, for example, Rahimithe only post-The bridge the case that the Court pronounced interpreting this decision.
Rahimi involved a violent cartoon individual who, when the Court decided this case, was charged with six different shooting offenses – that is, offenses in which he actually discharged a firearm. In one of those incidents, he allegedly fired a gun at a bystander who saw him beating the mother of his child. A majority of justices voted to uphold his conviction under a federal law that bars many people who are subject to domestic violence restraining orders from owning a gun.
Chairman John Roberts, who wrote the majority opinion in Rahimihe reasoned primarily that this federal law was similar enough to founding-era laws that required people believed to be involved in violence to post a bond, which they would forfeit if they “breach the peace.”
Meanwhile, in dissent, Justice Clarence Thomas argued that these bond laws were not sufficiently similar to the modern ban on carrying a gun while under a restraining order because founding-era laws “imposed a far less onerous burden.” They did not disarm individuals or incarcerate them if they were later found with a weapon.
Because The bridgeThe “analogous regulations” test is so vague that both Roberts and Thomas made plausible arguments: The bridge did not fully explain how similar a modern law must be to a colonial or early American law to survive judicial scrutiny. Indeed, if anything, Thomas had the stronger argument in which law in Rahimi should have been brought down under The bridge.
The bridge said that “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the absence of a similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” Violence between romantic partners is a societal problem that existed long before the 18th century. But every state allowed married partners to beat their spouses until 1871, when the Alabama Supreme Court ruled that husband and wife “may be indicted for assault and battery upon each other.”
The bridgein other words, it doesn’t actually tell judges how to decide gun cases — as so many lower court judges have complained. It is only insisted that they have to tell a story about whether a modern law is similar to a very old law.
Indeed, there is empirical evidence that The bridge it gives judges wide latitude to rule on gun cases however they want. A 2023 paper by researchers Eric Ruben, Rosanna Smart, and Ali Rowhani-Rahbar indicates that “The bridge did not significantly constrain judges’ and instead freed them to decide gun cases according to their ‘judicial ideology’. The paper finds that “judges appointed by Republican presidents are 1.8 times more likely” to rule that a gun law violates The bridge “as judges appointed by Democratic presidents.”
The bridgein other words, it is not law. Instead of constraining how judges decide cases, it only requires them to cite historical sources in an opinion that reaches whatever conclusion aligns with their politics. On a 6-3 Republican Supreme Court, that means the Hawaii law at issue in Wolford is likely to fall.