The Supreme Court’s Gun Rulings Are Cherry-Picking American History

The conservative bloc’s only consistent practice is its inconsistent application of its own “history-and-tradition” test.

The Supreme Court struck down a Hawaii law on Thursday that forbid concealed-carry permit holders from bringing their guns onto private property without the owner’s express permission. “This regime hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives,” Justice Samuel Alito wrote for the court. “We hold that the law is unconstitutional.”

The 6-3 decision in Wolford v. Lopez, which fell along the usual ideological lines, is the court’s latest effort to apply its relatively new history-and-tradition test to state gun-control laws. Along the way, the court raised new questions about what kinds of “historical analogues” can be used to defend gun restrictions—and whether the bigotries of past generations should be a factor.

In 2022, the Supreme Court adopted a new Second Amendment test for lower courts in New York State Rifle and Pistol Association v. Bruen. At issue in Bruen was New York’s restrictive law for granting concealed-carry licenses. In a 6-3 ruling, the court’s conservative majority held that the law violated the Second Amendment because it fell outside the historical bounds of gun rights in America.

Bruen’s history-and-tradition test, as articulated by the court, has two steps. “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” Justice Clarence Thomas explained in his majority opinion. “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.”

At first, lower courts found themselves applying Bruen to a wide range of long-standing gun restrictions. Different courts also reached wildly different conclusions on when and how to use historical evidence to decide whether a law fit within “the nation’s historical tradition.” Two years years later, in United States v. Rahimi, the conservatives clarified the Bruen test: the government need only identify a “historical analogue” to survive judicial scrutiny, not a perfect match or a “dead ringer.”

After Bruen, states that historically favored greater restrictions on guns rewrote their laws to accommodate the Supreme Court’s ruling. Among those states was Hawaii. One of their changes was to the state’s “default rule” for trespassing. Before Bruen, it was lawful to bring a concealed weapon onto private property that is generally open to the public—restaurants, stores, gas stations, and so on—unless the owner specifically prohibited it. (For brevity’s sake, I’ll just refer to this as “private property” from now on, even though I am not literally referring to all private property in the state.)

Hawaii reversed that presumption: Now it would be illegal to bring a........

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