A Washington Gun Case May Conflict with a Recent U.S. Supreme Court Ruling

Can a state constitutionally say that a person who has repeatedly consumed too much alcohol to drive safely cannot be trusted to operate a gun safely? In last month’s Holloway v. Brown, the Washington Supreme Court said yes. But the question has become surprisingly difficult, especially after the U.S. Supreme Court, just one week after Holloway, decided in United States v. Hemani that it is unconstitutional to disarm a person based solely on regular marijuana use. Holloway could be on a collision course with Hemani.

The U.S. Supreme Court’s evolving originalist analysis of the Second Amendment has left a confusing maze for lower (and state) courts to navigate. In 2008’s , the U.S. Supreme Court held that the Second Amendment, as originally understood in 1791, protected an individual right to possess firearms. At the same time, the majority caveated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” A few years later, in McDonald v. City of Chicago, the Court applied its understanding of the Second Amendment against the states.

In 2022, in New York State Rifle & Pistol Association v. Bruen, it held that gun regulations had to be “consistent with this Nation’s historical tradition of firearm regulation.” The Court reviewed regulations spanning from 12th century England to the late 19th century American territories. The Court insisted that modern regulations need not be “dead-ringer[s] for historical precursors” to be “analogous enough to pass constitutional muster.” The majority spent considerable space pointing out specific differences between the regulations New York relied on to defend the law’s constitutionality and the regulations New York then enforced.

Then, in United States v. Rahimi, the Court upheld a federal law that prohibited any individual subject to a domestic restraining order from possessing a firearm. The Court did so because the law was, in a very general way, similar to firearm restrictions at the founding. States frequently had surety laws that required people who had engaged in various misbehaviors to post a bond to own weapons, and they prohibited going around armed to spread fear or terror. Justice Clarence Thomas, who wrote Bruen, dissented in Rahimi. In his view, specific differences between founding era and 19th century gun regulations and the law prohibiting individuals under a domestic restraining order from possessing a firearm rendered the law unconstitutional.

These decisions have spawned uncertainty. The Court has steadfastly refused to definitively decide, for example, whether courts should consider gun regulations from 1791, when the Second Amendment was ratified, or from 1868, when the 14th Amendment was ratified and began applying the Bill of Rights against the states. Courts applying these decisions are left wondering: What period can gun regulations be drawn from to be relevant to the analysis? What level of generality should they use to decide whether modern regulations are similar enough? How common do historical gun regulations need to have been before they constitute a historical tradition?

Judges in lower federal courts and state courts are bewildered. As Chief Justice Steven González of the Washington Supreme Court — who wrote Holloway — said during oral arguments in a previous gun rights case, “I’m confused by our national Second Amendment jurisprudence and I’m confused by Bruen and Rahimi.” Courts have divided over whether the Second Amendment protects the AR-15. One judge even found that the Second Amendment, as interpreted by Bruen, covers a right to possess machine guns.

When the Second Amendment was drafted in 1791, gun regulation was sparse. As noted earlier, states had surety and “going armed” laws. During the American Revolution, states disarmed loyalists. Throughout the 19th century, some states tightly regulated gun possession by minors and Black people, whether enslaved or free. By contrast, they frequently allowed convicted felons — whose disarmament in the modern era Heller pointedly suggested was presumptively lawful — to keep weapons.

Given how slow 18th century weapons were to reload, carrying out mass shootings, which are depressingly common now, was extremely difficult or impossible. In fact, the only frequent mass shooting events were wars. It should therefore interest us that founding era state constitutions that the Heller majority looked to for support frequently linked firearm guarantees with condemnations of standing armies. As Pennsylvania’s 1776 constitution put it, “The people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.” This suggests that the framers of these constitutions were focused on preventing militaries from becoming powerful enough to dominate society and slaughter the citizens they were supposed to protect.

Against this backdrop, the U.S. Supreme Court decided Hemani last month. The decision involved a federal statute that imposes up to 15 years’ imprisonment and disarmament for life on individuals who possess guns while being “unlawful users of” or “addicted to” a “controlled substance.” The government became suspicious that Danial Hemani was connected to terrorism and searched his home. It discovered no links to terrorism, but learned that he had kept a gun, that he used marijuana about every other day, and that cocaine was present at his home. To defend indicting him for violating the statute, the government attempted to analogize to the same habitual drunkard laws the Washington Supreme Court considered.

The Court initially suggested that old habitual drunkard laws were a poor fit with the federal statute because they applied only to what we would today regard as excessive drinking, and not normal alcohol consumption. The Court noted that several founding fathers and many ordinary Americans in the founding era heavily consumed alcohol throughout the day, and suggested that no one at the time would have thought habitual drunkard laws applied to them. The Court then found that these laws were meaningfully different from the federal user-disarmament statute because they were intended to protect society from vice rather than to prevent violence. Someone who violated a vagrancy law because of drunken behavior might be forced to labor in a workhouse or even imprisoned. But officials did not permanently confiscate their weapons. Moreover, habitual drunkard laws usually afforded someone individualized due process before officials imposed a consequence. The modern federal law at issue, by contrast, applies automatically once someone uses illegal drugs, even if they have not been convicted for doing so. The Court acknowledged that “drugs and guns can sometimes make for a dangerous mix.” But this concern did not outweigh the many dissimilarities between habitual drunkard laws and the federal user-disarmament statute.

The Washington Supreme Court’s Holloway v. Brown — again, decided just one week before Hemani — grappled with a similar, but more nuanced, fact pattern. The case involved two individuals convicted of driving under the influence. Washington law prohibits anyone convicted twice within seven years of driving under the influence from possessing a gun. Those disarmed under the law can petition to have their right to possess a firearm restored after five years of law-abiding behavior.

The Washington Supreme Court found that this law complied with the U.S. Supreme Court’s interpretation of the Second Amendment. To demonstrate that the law in question was consistent with the nation’s tradition of firearm regulation, the court cited laws from the 1860s and 1870s limiting firearms use by intoxicated individuals (often called “habitual drunkard laws”) and compared the law to historic regulation of gun possession for people shown to pose a credible risk of violence. The court acknowledged that these regulations might not be enough to justify the law on their own. Still, it held that “we do not consider our nation’s historical traditions in isolation, particularly when the legislature is tackling a uniquely modern problem.” In other words, it considered traditional regulations holistically to determine whether, as a whole, they supported Washington’s law. Specific differences between those traditional regulations and modern ones were not fatal.

Would Holloway withstand the U.S. Supreme Court’s scrutiny? On one hand, Washington’s law does not permanently ban people with driving under the influence (DUI) convictions from possessing firearms in the same way the federal statute at issue in Hemani bans those who use illegal drugs from possessing firearms. People with DUI convictions in Washington can petition to have their gun possession rights restored after five years of law-abiding behavior. This difference might be enough for the U.S. Supreme Court to agree that the Washington law passes Second Amendment muster.

On the other hand, Washingtonians violate DUI laws when their blood alcohol level is 0.08 or higher. For a man weighing 140 pounds, this amounts to about three standard drinks in a relatively short time. But the Court in Hemani suggested that George Washington drinking three glasses of Madeira wine in the evening — fortified to have a higher alcoholic content than normal wines — would not have been enough to trigger habitual drunkard laws at the founding. And once a person is convicted of driving under the influence in Washington, there is no individualized hearing to determine whether they pose a heightened risk of gun violence and should be disarmed. They automatically lose their right to possess a gun.

Holloway did not consider how Article 1, Section 24 of Washington’s constitution might apply. That provision, ratified in 1889, says, “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.” As a matter of text, there is a stronger argument that this provision protects the right to possess a gun for self-defense, even for people who have broken the law, than there is for the Second Amendment, which does not single out individuals as explicitly. But the litigants challenging Washington’s law chose not to raise a state constitutional claim.

It would have been interesting to see the Washington Supreme Court engage with this provision. Perhaps it would have rejected an originalist approach as the Hawaii Supreme Court did in State v. Wilson. Or, perhaps it would have explained why the history and tradition a Washington court should consider would be different from what the U.S. Supreme Court should consider. For example, instead of focusing heavily on regulations in the late 18th century in the original 13 states — as federal courts often do — it might consider Washington’s regulations around the time of the state amendment’s ratification in 1889. And it would be entirely appropriate to rely just on Washington’s tradition, even if that differed from how other states regulated guns in the country. (When it comes to the Second Amendment, though, the U.S. Supreme Court has disregarded distinctive local traditions and instead focused on whether a historical regulation was well-accepted across many states.)

The plaintiffs’ decision in Holloway to rely on the Second Amendment was understandable, given how friendly the U.S. Supreme Court has been to gun rights claims in recent years. Forty-five states guarantee the right to arms. Some are explicitly more protective than the federal counterpart; others have been interpreted as offering less protection of gun rights. Regardless, so long as the U.S. Supreme Court remains on its current path, there is little reason to litigate these provisions. This is true even in states with constitutional texts that go beyond the Second Amendment, because it is hard to imagine how an interpretation of them would be more protective of gun rights than the U.S. Supreme Court’s interpretation of the Second Amendment. And where state constitutions offer less protection of the right than the U.S. Constitution does, a state court judge must enforce the U.S. Constitution when someone properly invokes it, even if doing so contradicts their state constitution. As Justice Amy Coney Barrett’s concurrence in Rahimi acknowledged, requiring courts to use a stringent history-and-tradition test to apply the Second Amendment risks leaving state legislatures only very limited 18th century solutions to 21st century gun violence problems. For people who want maximally expansive gun laws, that is a feature and not a bug of focusing on the U.S. Constitution instead of their state constitutions.

I have argued before that American constitutional law should be understood as a conversation about how to define liberty as much as it is a list of black-letter law rules. If state courts indeed end up with fewer occasions to interpret state constitutional guarantees of the right to arms because litigants strategically focus on the Second Amendment, modern state constitutions will have little practical ability to contribute to this discussion as it applies to the right to bear arms. 

Marcus Gadson is an associate professor of law at the University of North Carolina — Chapel Hill.

Suggested Citation: Marcus Gadson, A Washington Gun Case May Conflict with a Recent U.S. Supreme Court Ruling, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (July 8, 2026), https://statecourtreport.org/our-work/analysis-opinion/washington-gun-case-may-be-collision-course-recent-us-supreme-court