The Evolving Architecture of Second Amendment Doctrine After Hemani and Wolford
By: Alex J. Marban, Jr.
I am sincerely grateful to David Oscar Markus, Jordi Martinez-Cid, and John R. Byrne for the opportunity to submit this guest post. This piece discusses the Supreme Court’s recent decisions in United States v. Hemani and Wolford v. Lopez and their transformation of the Second Amendment framework. Hemani was one of the two issues presented in the 2026 John J. Gibbons Moot Court Competition—where my teammate, Olivia Galel, and I were honored to represent the University of Miami School of Law as semifinalists. I owe special thanks to our exceptional coaches, Adam Stolz and Luis Reyes, whose unwavering support, thoughtful guidance, and steady belief in us were truly invaluable throughout the competition and beyond.
(L to R) Olivia Galel, Alex Marban, Adam Stolz, Esq. (coach); not pictured: Luis Reyes, Esq. (coach).
The Supreme Court’s recent decisions in United States v. Hemani and Wolford v. Lopez signal a fundamental transformation of the Second Amendment framework—moving it from a two-step inquiry toward a more elaborate multi-dimensional analysis. In Hemani, Justice Gorsuch delivered a narrow as-applied holding, ruling that the government cannot constitutionally disarm a regular marijuana user under 18 U.S.C. Section 922(g)(3) based solely on admitted use. Simultaneously, in Wolford, Justice Alito’s opinion struck down a Hawaii law that prohibited firearms on private property open to the public without express consent. Collectively, these cases demonstrate that the New York State Rifle & Pistol Association, Inc. v. Bruen (2022) “experiment” has entered a proliferative phase, where the Court is narrowing step one’s textual analysis, while adding increasingly granular layers to step two’s historical inquiry.
Under this emerging architecture, step one has become a textual bulwark that virtually ensures a presumption of unconstitutionality for modern regulations. In Hemani, the government conceded that disarming a marijuana user burdens conduct textually protected by the Second Amendment, allowing the Court to bypass this inquiry entirely. Meanwhile, Wolford transformed step one into a firm doctrinal rule by prohibiting the use of historical materials, concluding that such evidence is “out of place” in what is now a purely textual analysis. By strictly relegating history to step two, the Court has ensured that any law-abiding citizen seeking to “keep and bear arms” easily clears the initial textual hurdle, shifting the entire constitutional weight onto the analogical inquiry.
This shift has quietly mutated step two into a complex matrix of variables now encompassing the who, the where, and the how widespread. These features supplement Bruen and United States v. Rahimi (2024)’s initial emphasis on “why” (purpose) and “how” (operation). Hemani introduced the who metric through an assessment of the regulated group’s functional capacity. There, the Court rejected an analogy to founding-era “habitual drunkard” laws because those laws targeted people who were “practically incapacitated,” whereas Section 922(g)(3) sweeps in functional citizens like a “college student who routinely uses a friend’s Adderall to cram for exams.” Wolford expanded this catalogue by introducing the where inquiry, distinguishing between founding-era poaching on “enclosed lands” and modern carry in “retail establishments.” Moreover, the Court introduced a historical pervasiveness standard that dismisses “lone statutes” that were neither “widespread nor widely accepted” in the founding-era. Taken together, these variables do not merely refine the analogical inquiry—they fragment it, requiring courts to navigate a multi-axis comparison for which no clear methodology exists.
The Bruen framework grew even more intricate with Wolford’s normative filter and Hemani’s cumulative failure standard. In Wolford, the Court categorically refused to consider an 1865 Louisiana statute—despite its facial similarity to the Hawaii law—because it was a “tainted artifact” of the Black Codes designed for racial subjugation. This benchmark now requires lower courts to perform a “pedigree” check on historical analogues, assessing whether a past legislature’s aims were sufficiently untainted to count as tradition. While the exclusion of these abhorrent laws reflects a sound moral impulse, it increases the analytical burden on courts and risks erasing the inescapable—and deeply troubling—chapters of our nation’s history. Hemani compounded Bruen’s unpredictability by adopting a “cumulative” failure standard that refuses to identify which specific mismatch between a modern law and its historical analogue is fatal. In turn, these tweaks leave step two unstable and invite divergent outcomes across courts.
Justice Jackson’s critiques across both cases capture the structural instability the Court’s recent decisions have produced. She warns that the Court is implementing a “one-way ratchet” that privileges armed carry by reducing step one to whether a gun owner’s claimed right is burdened at all. Then at step two, she argues Wolford misapprehends the Court’s own precedents by demanding “historical twins” for modern laws, even though Bruen and Rahimi explicitly reject any such mechanical requirement. Conscripting judges as amateur historians to resolve modern problems produces, in her view, “inconsistent and arbitrary application”—a “free-for-all” that unmasks the Judiciary’s own discretionary choices.
Hemani and Wolford together confirm that the Bruen test is not a settled standard but an expanding matrix. By acknowledging that it has not yet “exhaustive[ly] survey[ed]” the universe of “relevantly similar” features, the Court has effectively invited additional undiscovered variables—from the who introduced in Hemani to the where and pervasiveness metrics in Wolford. Each successive refinement creates new analytical traps for lower courts, ensuring that Second Amendment doctrine remains shifting, contested, and increasingly unwieldy.
