The Burden Of History: Justice Jackson's Curious Call To Overturn Critical 2nd Amendment Precedent

Authored by Jonathan Turley,

Since her confirmation in 2022, Justice Kentaji Brown Jackson has established a legacy that is fast becoming one of the most radical in the Court’s history. Her sole dissents have drawn sharp criticism from both her conservative and liberal colleagues. However, for critics of some of these decisions, Justice Jackson continues to publish opinions that are not just, as she describes it, cathartic but chilling. Worse yet, the latest judicial jump scare was shared by her colleague, Justice Sonya Sotomayor, in her concurring opinion in United States v. Hemani..

At issue in the case was an effort to prosecute Ali Hemani for recreational use of marijuana, a prosecution that threatened up to 15 years and to strip him of his gun rights under  18 U.S.C. § 922(g)(3)

Writing for the majority, Justice Neil Gorsuch ruled that the provision was not "consistent with the Second Amendment." Gorsuch noted that Hemani was not alleged to be a drug addict or to have used his guns in a menacing manner.

Gorsuch wrote that the "historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways."

However, Jackson used the concurrence to argue for overturning NYSRPA v. Bruen, a case critical to laying the foundation for interpreting the Second Amendment based on historical precedent. Jackson lashed out at the"'history and tradition' metric" and called for the Court to "revisit" the case.

Declaring Bruen "unworkable," Jackson called for the restoration of the "means-end scrutiny - the approach courts applied before we adopted Bruen's 'history and tradition' metric - offers a more rational way of assessing the constitutionality of firearm regulations."

The reason for undoing Bruen? According to Jackson, "it imposes on judges the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer 'contested historical questions,' and 'applying those answers to resolve contemporary problems.'"

Justice Jackson added that "Given those challenges, it is unsurprising that Bruen's test is vulnerable to inconsistent and arbitrary application, as judges draw different conclusions from the same historical evidence and reach divergent assessments of the same laws."

The burden of actually seeking to understand the intended meaning of a constitutional provision is certainly greater than the more free-style approach of Jackson who focused on how to "resolve contemporary problems" under a living Constitution. However, to suggest that her outcome-determinative approach is less inconsistent and arbitrary is only true when you control the Court with justices who have like-minded "solutions" for contemporary problems.

That is precisely what many Democrats have in mind as they openly pledge to pack the Court with an insistent liberal majority if they can retake power. Moreover, Jackson is often cited as the model of the left, a justice who is unburdened by the language and history of constitutional provisions.

Just last week, liberal Wisconsin State Supreme Court justices heralded Jackson’s approach in arguing for the restoration of race-based gerrymandering. The state jurists lamented not being able to interpret the Constitution to address the “harms this country has caused to those who are marginalized, disempowered, or disenfranchised,” including the “preference for White Americans and to burden Black Americans and those of other disadvantaged races or backgrounds.”

These federal and state Supreme Court opinions are a glimpse into what awaits the country if Democratic leaders carry out their threat to take over the Supreme Court by adding four liberal justices in the image of Justice Jackson.

It is not simply the desire to immediately overturn prior cases but to establish a largely untethered jurisprudence driven by judicial fiat and impulse. It is certainly an easier way to write opinions and would clear the way for a stated agenda on the left to maintain power indefinitely.

Before voters "unburden" these jurists, they need to seriously consider the costs of eviscerating an institution that has been vital in maintaining this Republic for the last 250 years.

Here is the opinion: United States v. Hemani

onathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”