Supreme Court likely to reject limits on concealed carry but uphold bans on gun possession by drug users

The U.S. Supreme Court in early 2026 will hear oral arguments in two cases testing the limits of gun rights under the Constitution.

Can a state outlaw carrying a concealed weapon in businesses or restaurants unless the owners post a sign allowing it? And can the federal government criminalize the possession of firearms by a habitual drug user?

The plaintiffs in both cases claim that these laws violate their Second Amendment rights. As a close observer of the Supreme Court, I suspect the rulings will split. The court will likely strike down the limitation on concealed carry and uphold the law denying gun rights to drug users.

History will tell

The Supreme Court recognizes an individual right to self-defense with firearms in public spaces. But it has also upheld the power of the government to enforce legitimate limits on that right.

The question is how can Americans know which limits are constitutional and which are not.

In 2022, the Supreme Court answered that question in a ruling, New York State Rifle & Pistol Association v. Bruen, that struck down several states’ limitations on issuing what’s called “concealed carry” licenses. That ruling set a new standard for defining the boundaries on a constitutional right: if the right was allowed at the time of America’s founding and the early republic.

In the view of originalists, who see the meaning of the U.S. Constitution and the subsequent amendments as fixed by the understanding of its authors and ratifiers, the Second Amendment recognizes a preexisting individual right of self-protection. That self-protection right can be restricted but not removed. It can be limited but not eliminated.

In the Bruen ruling, Justice Clarence Thomas wrote that current laws must be “consistent with the Nation’s historical tradition of firearm regulation.” The appropriate method, he wrote, is to examine “how and why” the regulation functions, and see if the same kinds of laws were accepted by the founders.

If so, the current laws in question are legitimate limits to the right. If not, they are unconstitutional infringements.

The first test of the new standard for a constitutional regulation came in the United States v. Rahimi case in 2024. The court upheld the federal law criminalizing gun possession by someone subject to a domestic violence restraining order.

The court examined the historical record and found several examples of laws removing firearms from people who threatened others. The record revealed established law in four states at the time of the founding that fit the same general reason and mechanism as the current federal regulation targeting domestic abusers.

Concealed carry

On Jan. 20, the court will hear arguments in Wolford v. Lopez about what the historical record reveals regarding limitations on carrying concealed firearms in public.

After the Bruen decision, Hawaii and a few other states enacted laws restricting citizens from bringing a licensed firearm on private property held open to the public unless the owner gives permission. Usually that is accomplished by posting “clear and conspicuous signage at the entrance.”

The plaintiffs, Jason and Alison Wolford, argue that the Hawaii ban makes it “impossible as a practical matter to carry a firearm.” Most establishments will not post any sign, meaning it would be a criminal offense to conduct normal errands such as entering a grocery store or shop.

The U.S. Court of Appeals for the 9th Circuit in 2024 upheld the Hawaii law on the grounds that a 1771 New Jersey law and an 1865 Louisiana law are historical “dead ringers” for the Hawaii law. The court found that those laws meet the requirement of “an established tradition” limiting citizens from carrying firearms onto private property without consent.

The Republican-appointed majority on the Supreme Court, I believe, is likely to conclude that this is a misunderstanding of Justice Thomas’ method described in Bruen.

The standard the court has set is not to find any one or two similar laws that were not struck down as unconstitutional. Instead, the standard is to demonstrate a clear pattern of a recognized form of accepted regulation. If the law existed for only a short period of time, in a limited geography, or for reasons we would now see as unacceptable, this does not demonstrate a tradition of legitimate legal limitation.

Advocates for the plaintiff argue that the New Jersey law from the 1770s was intended to deal with the problem of hunters using private land without permission. They say it did not apply to businesses open to the public.

The Louisiana law enacted immediately after the Civil War was part of the Black Codes designed to keep firearms out of the hands of freed slaves. The law was not intended to be enforced against whites but had the clear intent to restrict the civil rights of freedmen. The plaintiffs argue that it is wrong to cite an openly racist post-Civil War regulation as a justification for contemporary law.

The court is likely to agree. The majority of the court will likely rule that these laws are exceptions and not a legitimate pattern of historical regulation.

The legal scholar Neal Katyal describes the objections to these two examples as “flyspecking” – nitpicking small details.

But the historical analogies have clear flaws. If the majority follows the doctrine laid out in Bruen and Rahimi over the past few years, the court will strike down the Hawaii law.

Drug use

The second challenge to gun regulations will be heard in March.

United States v. Hemani addresses the federal law criminalizing firearm possession by anyone “who is an unlawful user” or “addicted to any controlled substance.”

Ali Hemani argues that his prosecution is unconstitutional because U.S. tradition only disarms citizens who are currently drunk or high, not alcohol abusers or addicts who may be clearheaded at other times.

History does not seem to be on Hemani’s side. While illicit drugs such as cocaine or heroin were largely unknown at the time of the nation’s founding, drunkenness was common and alcohol consumption was dramatic.

An amicus brief submitted for the case by a group of Colonial historians argues that “at the Founding, alcohol consumption, unlike drug use, was commonplace, and the Founders were aware of the risk that alcohol could cause a lapse in judgment.”

More importantly, the historians argue that “numerous laws disarmed those under the influence, recognizing that alcohol, which impedes judgment and self-control, is a dangerous combination with guns.”

These laws also applied to habitual drunkards, the mentally ill and others determined to be dangerous to the public.

Given the conservative leanings of the current court, it seems likely that the majority will find these historical laws on alcohol and guns to be close enough in purpose and method to uphold the current federal law on drugs and guns.

These two rulings may come down at the end of term in June 2026, when the most controversial cases tend to be announced. The court’s historical focus seems likely to yield nuanced results, striking down some regulations and upholding others.

Perhaps most importantly, we will see what the historical emphasis reveals about the balance between the constitutional right to self-defense and the collective power to ensure public safety.