When the Supreme Court decided Bruen, holding that the constitutionality of laws restricting the fundamental right to keep and bear arms under the Second Amendment, it was obvious that it would not only wreak havoc with myriad existing gun laws, but that it would present a nearly impossible task of trying to divine how the history and tradition at the time of the founding would apply to laws in the future.
That was the problem facing the Supreme Court in United States v. Hemani, which unanimously held that Second Amendment rights could not be presumptively prohibited because a person was a regular pot user.
Today, in United States v. Hemani, the Supreme Court ruled that the Second Amendment prevents the federal government from banning gun ownership by marijuana users. Unusually for a Second Amendment case, the ruling is unanimous. It’s a significant application and extension of the Court’s 2022 ruling in the 2022 Bruen case, which sought to put more meat on the bones of Second Amendment rights by establishing a “history and tradition” test for reviewing gun regulations. It’s a great moment for those of us who both support strong Second Amendment rights and hate the War on Drugs.
As far as it goes, the outcome seems obvious, particularly given Justice Gorsuch’s framing of the issue.
To determine when the government infringes the Second Amendment, we begin by asking whether the Amendment’s terms cover the conduct in question. Bruen, 597 U. S., at 24. If so, the Constitution “presumptively” protects it. Ibid. To overcome that presumption, the government then bears the burden of showing its regulatory efforts are “consistent with the Nation’s historical tradition of firearm regulation.”
There weren’t a lot of regular potheads back then, so there was no tradition of prohibiting their ownership of guns. Fair enough. But the government went on to argue that the analogy of the “habitual drunkard” prohibition was close enough.
To meet its burden of showing a law like that is consistent with the Nation’s tradition of firearm regulation, the government relies on an analogy to what it calls “habitual drunkard” laws. These laws, the government submits, enjoy deep roots in the country’s history and are “relevantly similar” to the regulation it wishes to enforce against Mr. Hemani.
The Court disagreed, not that the toxic mix of guns and drugs didn’t present a compelling problem, but that the prohibition went far beyond the “habitual drunkard” limitation.
We disagree. We appreciate that drugs and guns can sometimes make for a dangerous mix. We appreciate, too, that the government’s effort to analogize a modern statute addressing drug use to historical laws must be approached with a sensitivity to the fact that many drugs well known today were unknown in early America. As we have put it, the Second Amendment “can, and must, apply to circumstances beyond those the Founders specifically anticipated.”
So it’s not that there isn’t a problem to be addressed or that addressing the problem would violate the Second Amendment per se, but this wasn’t it.
[W]e do not question that sometimes an individual’s unlawful use of marijuana (or any other controlled substance) may render him a danger to others. But, again, the government disclaims the need to show anything like that in this case. Instead, it asks us to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing. All based on little more than its current say-so, one at odds with its own regulatory actions. And affording the government that kind of “broad power to designate any group as dangerous and thereby disqualify its members from having a gun” would risk allowing it to “quickly swallow” the Second Amendment. Kanter v. Barr, 919 F. 3d 437, 465 (CA7 2019)(Barrett, J., dissenting).
Rather than categorically applying a prohibition to all regular unlawful drug users, the government’s burden is to prove that each user, individually, uses drugs to such an extent that he or she is regularly incapacitated such that he or she presents a danger. In other words, regular daily drunkards get guns, while “habitual” drunkards do not. Or as stated in the Alito concurrence, with which Justice Kagan joined:
As the opinion of the Court explains, the habitual-drunkard laws that the Government cites did not allow officials to disarm all those who “regularly used intoxicants,” or even just those who “sometimes used them to excess….” These laws instead threatened disarmament only for those whose use of an intoxicant “rendered them practically incapacitated and incapable of managing their affairs….”
How does a police officer or gun regulator distinguish between the person who “regularly used intoxicants” from the person whose use of intoxicants “rendered then practically incapacitated”? The Court offers no clue how its word salad is supposed to taste.
In these circumstances, marijuana use today is like alcohol use at the founding. It is widespread and increasingly considered socially acceptable in many quarters. And from a practical standpoint, law enforcement widely tolerates the use of marijuana. These similarities underscore the deficiency of the Government’s analogues. To succeed, the Government would need to identify a regulatory principle that justified disarmament of persons who are relevantly similar to the occasional marijuana user. But whereas the Government’s analogues allowed disarmament only of those whose extreme use of an intoxicant (alcohol) incapacitated them habitually, §922(g)(3) as applied to respondent allows disarmament of those who do no more than “regularly us[e]” a similar intoxicant (marijuana) unlawfully.
Where is the line between “regularly” and “habitually”? How would one craft a law that made that line clear enough to pass constitutional muster? How would anyone be able to apply such a law, even if it could be written?
It’s not that I disagree with the holding, insofar as it says that smoking pot does not come at the expense of losing one’s constitutional rights. But at the same time, the idea that people’s whose judgment is regularly fouled by drugs point guns at other people does not breed confidence in a modestly safe society. If the Supremes are going to prohibit unwarranted limitations of the Second Amendment, then the least they can do is explain how their holding can be applied before some junkie with a legally-owned AK shoots up some joint.