Supreme Court Clarifies Second Amendment Analysis in Recent Rulings

Why it matters locally: These Supreme Court rulings on Second Amendment analysis could influence the interpretation and enforcement of New Hampshire's firearm regulations, potentially impacting how state laws are challenged and upheld in the future.

The Supreme Court has completed its term, issuing two decisions that clarified the framework for analyzing Second Amendment challenges. These cases, *United States v. Hemani* and *Wolford v. Lopez*, represent the first time since the 2008 *District of Columbia v. Heller* ruling that the Court has heard more than one Second Amendment case in a single term. In 2022, the Court established a new standard in *New York State Rifle & Pistol Association Inc. v. Bruen*. This framework requires courts to first determine if the Second Amendment's plain text covers an individual's conduct. If it does, the conduct receives presumptive protection, and the government must demonstrate that the regulation aligns with the nation's historical tradition of firearm regulation. ### *United States v. Hemani* The Court issued its unanimous decision in *Hemani* on June 18. Justices ruled that the federal government could not prohibit an individual who admitted to regular marijuana use from possessing a firearm. The government had argued that historical "habitual drunkard" laws provided a relevant precedent for disarming drug users. Justice Neil Gorsuch, writing for the majority, stated that these historical laws "targeted different kinds of people, did so for different reasons, and operated in different ways," thus failing to provide a suitable historical analogue. ### *Wolford v. Lopez* A week later, on June 25, the Court delivered its 6-3 opinion in *Wolford v. Lopez*. The Court struck down a Hawaii law that prohibited carrying firearms on private property open to the public without the owner's explicit consent. Justice Samuel Alito, writing for the majority, determined that the Hawaii law implicated the "plain text of the Second Amendment." He concluded that the government failed to produce "relevantly similar" historical analogues to support the regulation, making it unconstitutional. ### Clarifying the *Bruen* Framework Justice Alito's opinion in *Wolford* provided further guidance on the "plain text" inquiry of the *Bruen* framework. This inquiry involves three questions: 1. Does the law apply to "the people," meaning "all members of the political community"? 2. Does it concern "Arms," defined as "any weapon customarily used for offensive or defensive purposes"? 3. Does the law place any restrictions on the keeping or bearing of arms? The Court indicated that if a law places *any* restriction on the keeping or bearing of arms, it meets the third threshold. This interpretation suggests a broad application of the plain text inquiry, potentially challenging prior lower court rulings that required a more significant infringement for the Second Amendment to apply. Justice Amy Coney Barrett, in a concurring opinion, reiterated that courts should not introduce additional regulatory limits at this initial stage of analysis. For the second step of the *Bruen* framework, the government must show a challenged regulation aligns with the "Nation's historical tradition of firearm regulation." The Court has not yet specified whether this historical tradition refers to 1791 (ratification of the Bill of Rights) or 1868 (ratification of the 14th Amendment). In *Wolford*, Justice Alito outlined three inquiries for assessing historical tradition: 1. **Prevalence of Historical Analogues:** Courts should consider "the number of jurisdictions in which [the analogues] were adopted." The Court noted that an "outlier legal rule adopted in a few locales" would be insufficient. 2. **Acceptance of Analogues:** Courts should evaluate "the extent to which [the analogues] were well-accepted," either through judicial decisions or by being "open, widespread, and unchallenged." 3. **Relevant Similarity:** Analogues must be "'relevantly similar' to the modern law," assessing the "how" and "why" of the historical restriction and ensuring sufficient similarity to the current regulation. The Court acknowledged this requires "an exercise of judgment." In *Hemani*, the Court found the government's proffered "habitual drunkard" laws were not relevantly similar to disarming marijuana users because they differed in the types of people targeted, the purposes, and their operation. In *Wolford*, the Court dismissed a Louisiana statute from 1865 cited by Hawaii, determining it lacked relevance due to its limited adoption, lack of widespread acceptance, and its association with "Black Codes" designed to disarm African Americans. ### Future Cases Despite these clarifications, several questions remain, including the full scope of "the people" protected by the Second Amendment and the precise definition of "Arms." The Court has granted certiorari in *Viramontes v. Cook County* and *Grant v. Higgins*, which have been consolidated. These cases will address whether the Second Amendment protects the right to possess semi-automatic rifles, such as AR-15s. The justices declined to hear cases concerning the constitutionality of restrictions on firearm acquisition or possession by individuals under 21. Justice Clarence Thomas indicated he would have reviewed *West Virginia Citizens Defense League v. Bureau of Alcohol, Tobacco, Firearms, and Explosives*, a case challenging the federal ban on commercial handgun sales to individuals under 21.