This guest post does not necessarily reflect the views of the Duke Center for Firearms Law.
This post is the result of the “Making Sense of the Second Amendment after Wolford and Hemani” roundtable at SEALS ‘26. My remarks at the roundtable emphasized the ways in which Wolford and Hemani might change existing Second Amendment doctrine. Several of those points are summarized in this post, with gratitude to Jake Charles for organizing the panel. I am also grateful to Jake Charles and Hayley Lawrence for comments.
The Supreme Court is often accused of adjudicating cases with political ends in mind. As a result, potential presidential candidates for 2028 have called for expanding the Supreme Court. I suspect that Steve Vladeck’s demystification of the shadow docket, the growing number of 6-3 splits, and certain appearances of impropriety are the primary motivations for these calls.
The Court’s broader methodological moves, however, are equally concerning. Those moves were on display in the Supreme Court’s most recent merits decision on the Second Amendment, Wolford v. Lopez. Second Amendment cases provide a useful metric for analyzing the Supreme Court’s disposition towards constitutional doctrine due to the history-oriented nature of Second Amendment law and the Court’s overall expansion of its historical test.
Readers of the blog are familiar with Bruen’s history-and-tradition test as used in Second Amendment litigation. Broadly speaking, courts must first consider whether a challenged regulation implicates the “plain text” of the Second Amendment. And if the law regulates conduct protected by the text, then the burden shifts to the government to demonstrate that the law is consistent with historical tradition.
In Wolford, the Supreme Court took the opportunity to expand upon its history-and-tradition test. Justice Alito’s opinion augments the government’s burden by requiring lower courts to consider whether historical analogues that might justify modern firearm regulations were enacted in a sufficient number of jurisdictions and well-accepted. Further, the opinion allocated the consideration of all historical analogues to Bruen’s second step, where the government bears the burden. And conversely, Wolford limits the types of historical evidence that might serve to carry that burden by disavowing reliance on (at least some) tainted historical artifacts, such as the Black Codes. A brief explanation follows.
Augmenting the Government’s Historical Burden
Wolford augments the government’s historical burden in at least two ways. First, the decision requires lower courts to consider the number of jurisdictions in which the relevant regulatory tradition existed and whether those traditions were “well-accepted.” Second, Justice Alito suggests that historical analogues are not relevant at the plain text step of the Bruen test, meaning that all—or at least most—historical evidence will likely need to be considered at the second, historical step. That is significant, as government defendants, not challengers, bear the historical burden at Bruen’s second step. That means that the government is comparatively more disadvantaged than previously in Bruen litigation.
Requiring lower courts to consider the number of jurisdictions and whether specific historical traditions were well-accepted is not inconsistent with the Bruen test. But the Bruen test itself is quite malleable, lending itself to the justification of politically motivated outcomes, as important work by Rebecca Brown, Lee Epstein, and Mitu Gulati has shown. And doubling down on the obligation to consider numerosity and the “well-accepted” nature of historical analogues puts yet another thumb on the scale against firearm regulations.
But it isn’t even clear that the Court means what it says. Justice Alito’s opinion, much like Bruen, does not set out a clear requirement for jurisdictional numerosity. At one point, the Court cites Bruen’s skepticism of offering only one historical analogue; but right before that, the majority notes that a party defending a challenged regulation “may rely on a single analogue or a group of analogues.”
And as for whether a regulation is well-accepted, the Court merely tells us that acceptance “may be express, as when judicial decisions explicitly acknowledged the rule’s legality.” Alternatively, acceptance might be implicit when a restriction was “open, widespread, and unchallenged.” This analysis is currently missing from many post-Bruen opinions, and for good reason. As subjective as the Bruen test is, determining whether a regulation is well-accepted adds even more subjectivity. Is a diary entry from 1781 expressing support for a regulation sufficient to determine that it was “well-accepted?” Are robust enforcement records needed? Something else? Locating such evidence is no small task.
The Court also added to the government’s historical burden by eliminating the consideration of historical analogues at Bruen’s first step, the “plain text” inquiry. In Bruen, the Court stated that the Second Amendment must be interpreted by its “text, as informed by history.” (emphasis added). But Wolford tells us that historical analogues belong at the second step of Bruen’s test, where it is the government’s burden, rather than at the first step, where it might be the challenger’s. Reading out the requirement to consider the text “as informed by history” warps a core tenet of originalism in order to shift historical work from challengers to defenders of firearm regulations. Of course, Justice Barrett’s separate writing indicates that historical evidence may still be relevant at Bruen’s first step, so long as it is not a historical regulation, but no other justice joined that part of her concurrence in an attempt to clarify the Court’s rejection of historical analogues at Bruen’s textual step. And it is unclear why historical regulations, which tend to limit rights, should not be irrelevant to text while other historical context, which may limit or expand rights, should be relevant.
Limiting the Government’s Historical Evidence
But there’s more. The Court did not stop at altering parties’ burdens under Second Amendment doctrine. It also limited the ways in which the government might satisfy its historical obligations.
The splashiest of these doctrinal moves was the Court’s rejection of “tainted” historical evidence. Tainted historical evidence includes sordid sources that limited access to firearms based on race or religion.
In response to the Court’s historical mandate, Hawai’i offered a variety of historical analogues to defend its default switch law. Included among its historical analogues was an 1865 law from Louisiana that was part of the Black Codes. In addition to claiming that the law was “neither widespread nor widely accepted” (without an immediate citation), the Court rejected the law because it was a “tainted artifact” rooted in racist historical context. While facially neutral, “no one was under any illusions about [the law’s] true aims.” What the Court left unresolved was the question of whether all tainted historical evidence should be rejected. I read the Court as answering that question in the affirmative, though it is conceivable that this rejection will be limited to the Black Codes and yield circuit splits.
The Black Codes are undoubtedly a tainted artifact of our history. But the rejection of the Black Codes as historical analogues under Bruen is not self-justifying.
As Justice Jackson’s dissent persuasively noted, the decision to reject historical analogues because of their bigoted nature might be due to one of two reasons. First, historical laws might be rejected simply because they would violate our modern notions of equal protection. Second, they might be rejected because they violated the right to keep and bear arms on their own terms in their own times. For Jackson, only the second rationale is persuasive.
If Bruen requires historical analysis, it requires contending with “our Nation’s entire history, warts and all.” And the Court has repeatedly considered history steeped in racist contexts when it comes to expanding gun rights. The Court did so in Heller, McDonald, and Bruen. And while there are potentially valid reasons for the Court to have rejected tainted historical laws in Wolford, as Jackson notes, the Court did not substantially opine on those reasons. Instead, we are left with a string of cases suggesting that tainted history can be used to expand gun rights but not limit them. Like Joseph Blocher and Reva Siegel, I think that these considerations and their remedies might be more appropriate elsewhere.
In sum, the Court’s methodological moves do not appear impartial. Justice Jackson’s sharp critique of the opinion bears repeating here in full. “Today’s decision makes one thing clear: The Court’s objective is protecting guns, not consistently preserving any principle of law.” Taking a step back to review the decisions the Court made in Wolford, it is hard to disagree with Justice Jackson’s observation. There are more choices the Court made in Wolford—and in Hemani—that altered the Bruen test or reinforced its most pernicious demands. And while it is impossible to say with certainty that these choices are the result of conscious decision-making, the average reader of Supreme Court decisions could be forgiven for viewing them as such.
