Something Feels Off About Hemani and Wolford

On June 18, the Supreme Court decided United States v. Hemani. The case was 9-0, though was fragmented. Justice Thomas concurred, finding that possession statute exceeded Congress’s powers under the Commerce Clause. Justices Jackson and Sotomayor repeated their view that Bruen was wrongly decided. And Justices Alito and Kagan concurred in judgment, though I still am not entirely sure what they disagreed with the majority about.

Today, the Supreme Court decided Wolford v. Lopez. There was a time when we had to wait more than a decade for the Supreme Court to decide a Second Amendment case. This year, we get two victories in the span of a week! Here, the Court split 6-3, finding that Hawaii’s “vampire” law violates the Second Amendment.

Justice Alito, who did not join Hemani, wrote the majority opinion in Wolford. Part I of Alito’s opinion offers an extremely thorough, nine-page discussion of Heller, McDonald, Bruen, and Rahimi. This is a perfect capsule summary to teach students about how the doctrine has developed since 2008. But something very significant is missing: Hemani. Indeed, Justice Alito writes that Rahimi was “our most recent Second Amendment.” What about Hemani, decided seven days ago? Alito does not cite Hemani at all. But Justice Barrett’s concurrence and Justice Jackson’s dissent does cite Hemani.

What’s even stranger is the sequencing. Justice Alito’s opinion should have been released first, as it laid out all of the Second Amendment doctrine, and then Justice Gorsuch’s opinion could have come out second, and cited back to Alito. But Hemani came out first.

Something feels off here. Maybe Wolford was supposed to come out first, but the Chief wanted to force out the 9-0 Hemani to send a signal of bipartisanship, so the ordering was flipped? I don’t like that theory as there were no other blockbusters last Friday. I don’t think the majority opinion flipped in Hemani. The only person who didn’t write from that sitting was Justice Thomas, and his view on the Commerce Clause was never going to command a majority.

I can’t quite put my finger on it, but something happened with Hemani and Wolford.