On Thursday, the Supreme Court struck down a Hawaii gun law, claiming that it violates the Second Amendment. As is almost always the case in the Court’s Second Amendment decisions, Wolford v. Lopez was decided along party lines. The Republican justices agreed with the Republican Party’s position that gun regulations are bad, while the Democratic justices agreed with the Democratic Party’s position that gun regulations are good.

Regrettably, Justice Samuel Alito’s majority opinion in Wolford v. Lopez relies on the Court’s previous decision in New York State Rifle & Pistol Association v. Bruen (2022). Bruen is one of the most widely criticized Supreme Court decisions within the federal judiciary itself — in a 2024 dissent, Justice Ketanji Brown Jackson quoted a dozen lower court opinions, some of them written by Donald Trump appointees, which warned that judges simply cannot figure out how Bruen is supposed to work.

Briefly, Bruen requires judges hearing Second Amendment disputes to ask whether a modern-day gun law that is being challenged in court is “relevantly similar” to a law that existed when the Constitution was written. The Court has offered little guidance on just how similar the two laws may be, and Alito’s opinion does little to clarify Bruen.

While his opinion spends a great deal of time rehashing past Second Amendment decisions and criticizing Hawaii for enacting many restrictions on gun owners, Alito devotes only six pages to the question of whether the law at issue in Wolford is similar to an old law, and only about three pages on Hawaii’s strongest argument.

It’s hard to avoid the conclusion, in other words, that Bruen is not just unworkable, but that it is being used in bad faith by the Republican justices. Hawaii did everything the Supreme Court asked of it in Bruen, but the Republican justices still stuck down their law.

The Hawaii gun law at the heart of Wolford is, admittedly, a very aggressive gun regulation. It requires gun owners to get explicit permission from a private business’s owner or manager before they can bring a gun onto that business’s property.

As a practical matter, this law bars guns from nearly all bars, restaurants, shops, gas stations, and other places of business, because few gun owners are going to enter a property unarmed, find the manager, obtain permission to carry their weapon, and then go retrieve it.

So it’s unsurprising that the Republican justices wanted to strike this law down. Again, it’s a very expansive restriction on gun possession. And Bruen, which struck down a New York state law that barred most people from carrying guns in public, made it clear that the Republican justices believe in public carry.

But Wolford presented a big problem for these six Republicans, because, while Hawaii’s law is quite aggressive, it is also very similar to four laws enacted around the time of the founding. As Alito acknowledges in his opinion, Maryland, Pennsylvania, New Jersey, and New York all had laws in the 1700s that, in the words of the Pennsylvania statute, make it illegal to “carry any gun or hunt on the improved or inclosed lands of any plantation, other than his own,” without securing “license or permission from the owner of such lands or plantation.”

Alito downplays these four laws by claiming that they were enacted to prohibit “unauthorized hunting of deer or small game on someone else’s private property,” and thus are different from Hawaii’s law because Hawaii wasn’t concerned about people hunting deer at hotels and gas stations.

In her dissent, Jackson points out that many of these laws had more expansive purposes. She quotes New York’s 1763 law, for example, which states that it was enacted to avoid the “great Danger of the Lives of his Majesty’s Subjects, the Ruin and Destruction of the most valuable Improvements, the grievous Injury of the Proprietors, and the great Discouragement of their Industry.”

Alito’s opinion is also at odds with United States v. Rahimi (2024), the Court’s only post-Bruen decision that upheld a gun law. Rahimi upheld a federal law that bars people subject to domestic violence restraining orders from possessing a gun. The Court reasoned that this modern day law should be upheld because it is sufficiently similar to founding era laws that required “individuals suspected of future misbehavior to post a bond,” money that they would forfeit if they later “broke the peace.”

In Rahimi, in other words, the Court was asked to decide whether a narrow and very sensible federal gun law — one prohibiting people that a court has already determined to be violent from carrying guns — should be upheld. And the Supreme Court upheld it, pointing to a fairly dissimilar founding era law that had little to do with firearms.

In Wolford, by contrast, the Court struck down a more expansive gun regulation, despite the fact that four states enacted nearly identical laws in the 1700s.

Given these two cases, it is difficult to argue that the Republican justices are applying Bruen in good faith. Under Bruen’s completely arbitrary method for determining whether modern-day gun laws are constitutional, Hawaii had a much stronger argument in Wolford than the federal government did in Rahimi. But Rahimi involved a fairly uncontroversial gun regulation that even most Republicans are likely to support, so it was upheld.

Given this arbitrary framework, it is difficult to imagine any gun control law that Republicans oppose will be upheld, no matter how closely it hews to Bruen’s confusing standard. Wolford eliminates any remaining doubt that the historical research demanded by Bruen does not actually play a role in the Court’s decisionmaking.

The Court should stop embarrassing itself by handing down Second Amendment decisions that are impossible to take seriously, and overrule Bruen. Clearly, the justices are not actually deciding these cases based on whether new laws resemble old ones. So they should scrap Bruen and start being honest about what’s actually driving their decisions.