The U.S. Supreme Court added two opinions to its growing Second Amendment jurisprudence in June, when it ruled in the cases U.S. v. Hemani, holding that people cannot be denied guns because they unlawfully use controlled substances, and Wolford v. Lopez, expanding the right to bear arms on property that is privately owned and generally open to the public.

These were the latest major gun cases to arrive in the wake of the 2022 landmark New York State Rifle & Pistol Association v. Bruen, where the Court established a new test: To be constitutional, a firearm law must have an analog from before the 20th century. But what qualifies as a historical analog? And what if the law under review addresses issues that did not exist two centuries ago?

In recent years, UCLA School of Law professor Adam Winkler has focused on the challenges of this originalist approach. He is the Connell Professor of Law at UCLA Law and one of the top experts on the Second Amendment. The Supreme Court has cited his scholarship on multiple occasions, and he is one of the 20 law professors whom courts cite most in their opinions. His books include Gunfight: The Battle Over the Right to Bear Arms in America (W.W. Norton, 2011).

Here, Winkler talks about these major developments in Second Amendment law – and what could be next.

Let’s talk first about these two new cases, Hemani and Wolford. What was at stake here, and how did the Court come down on the issues?

Hemani was a challenge to the federal law barring unlawful users of controlled substances from possessing firearms. The Court’s majority said the law was unconstitutional because there were no similar laws in early America and was fundamentally different from laws analogized by the government, such as disarmament of habitual drunkards. Unlike those latter laws, the federal law being challenged applied regardless of whether one remained competent to organize one’s affairs. The liberal justices concurred in the result, finding the law overbroad.

Wolford struck down a Hawaii law that said gun owners had to obtain permission before carrying guns onto private property generally open to the public. In a 6-3 decision, the majority said this was a new and unusual burden on the right to carry, and Hawaii could only adopt the reverse presumption: Gun owners could bring their guns onto such property unless the property owner first denied consent.

What surprised you about these rulings?

These two decisions expanded the scope of Second Amendment protections in ways that could have far-reaching effects. Although the justices in the majority in both cases insisted that the rulings were narrow, the underlying reasoning is quite broad. In both cases, the majority found the challenged laws unconstitutional because there were no similar laws in the 1700s and 1800s. Under that logic, it is hard to see how numerous widely accepted gun regulations today would survive judicial challenge, including background checks and categorical bans on felons possessing firearms. There was nothing like pre-purchase background checks in early America nor categorical rules barring criminals from having guns.

Even before these decisions came out, especially after the 2022 opinion in Bruen, you wrote that the Court has made a mess of gun laws. How so?

When the Supreme Court issued its ruling in Bruen, it established that the current gun law has to be consistent with the history and tradition of gun laws in America – and, in particular, the gun laws that were in effect in the 1700s when the Second Amendment was adopted and the 1800s when it was expanded to apply to the states. “History and tradition” is ambiguous in many ways and often not very helpful in understanding modern gun laws. In the 1700s and 1800s, we banned Black people from having guns, but obviously that is unacceptable today. And today we have gun laws, like background checks and felon-possession bans, that early Americans did not. The Court has said the government need not show a “historical twin,” but figuring out how close the match between historical and current laws has proven to be elusive and unpredictable. Bruen said that relying on history and tradition would reduce judicial discretion, but the test is so unclear that, instead, the lower court decisions are all over the map.

Does the Supreme Court use such a history and tradition test in other areas?

Not exactly, but we are starting to see elements of it elsewhere. There’s a desire by the conservative justices who claim to be originalists to approach other constitutional law issues in the same way. We’ve seen, for instance, when the Court overturned Roe v. Wade, their decision was very much reliant on the history and tradition of abortion regulation. Similar reliance on the historical laws bearing upon religion has also come into play in some religious freedom cases. So it is definitely beginning to bleed into other areas. We may be at a turning point in constitutional law where the Court significantly reduces reliance on the interest balancing tests that lawyers have been taught for generations – strict scrutiny, rational basis – and instead centers constitutional adjudication on analysis of history and tradition.

But the Supreme Court has certainly departed from its own history and tradition before, right?

Of course. The most famous case is Brown v. Board of Education. The very first paragraphs of that opinion say we can’t look back to what the law was right after the Civil War, when the 14th Amendment was first adopted, to figure out whether public schools should be segregated: Those historical traditions are too unclear, too ambiguous, and we can’t be bound by them, due to the profound changes in society.

How has the law around guns evolved since you became a professor and joined the UCLA Law faculty in 2002?

For most of my early career, the Second Amendment was moribund. All that started to change around 2005, when some libertarian activists sought to reinvigorate it in the courts and pursued a case challenging gun laws in Washington, D.C. They found a receptive Supreme Court, which, in 2008 in District of Columbia v. Heller, recognized that there was an individual right to keep and bear arms. That case inspired me to get more involved and write a book about how Americans have balanced gun rights with gun safety over the course of American history.

Hasn’t there been a significant increase in the number of major gun cases since then?

Absolutely. Although the Court didn’t invalidate many gun laws in the immediate wake of Heller, ever since President Trump appointed three new justices, the Court has supercharged its Second Amendment jurisprudence. Not only has the Court recently invalidated a number of gun laws, the new history and tradition test that all courts are required to apply in Second Amendment cases has led to an avalanche of gun laws falling in the lower courts.

What major Second Amendment issues do you expect the Court to address next?

It is hard to predict which gun laws are likely to be taken up next, in part because there are so many lower court challenges for the justices to choose from. There are cases at the Supreme Court’s door challenging bans on military-style assault rifles, bans on handgun sales by licensed gun dealers to people 21 and under, bans on guns with obliterated serial numbers, sensitive places laws, and felon-possession bans.

One thing for sure is that California’s gun laws are, if you’ll excuse the metaphor, in the justices’ sights. UCLA Law’s home state has several innovative gun laws that seem likely to run afoul of the history and tradition test, from the requirement that handguns available for purchase first gain state approval to a 10-day waiting period for gun sales.