Hunter v. United States was not on my radar screen. But this may be one of the most unexpectedly fascinating cases of the year. The question presented is simple enough. In what cases can a defendant escape a knowing and intelligent waiver of appellate rights.
The top-line vote was 8-1, though as I noted yesterday, the majority splits 2-3-3. Justice Kagan and Chief Justice Roberts were squarely in the majority. Justice Gorsuch, joined by Justices Sotomayor and Jackson, tried to expand the majority opinion. Justice Kavanaugh, joined by Justices Alito and Barrett, felt compelled to say the majority opinion was actually more narrow. This was hardly a usual 8-1 decision.
The dissent by Justice Thomas raised many important points that were completely ignored by the majority. Justice Barrett wrote a partial rejoinder that was very unsatisfying.
Justice Thomas points out how the majority creates an exception to the appeal waiver doctrine out of thin air. Justice Kagan does not rely on any law, contract-law principle, or common law rule. Rather, the Court could only rely on the so-called "supervisory power." But as Professor Barrett persuasively explained in a law review article two decades ago, this sort of power is a fiction without any grounding in law. Justice Frankfurter explained in McNabb v. United States (1943) that the supervisory power was based on general "considerations of justice not limited to the strict canons" of law. In other words, no law.
What then is the basis to create the exception? In short, virtue signaling. The Court is afraid how people will see the judiciary. This sort of institutionalism is at the cornerstone of Chief Justice Roberts's approach to judging, but it has no basis in law. Justice Thomas, as usual, is the only member of the Court willing to say the uncomfortable part out loud.
The Court, however, fails to identify any basis in law for its exception. It identifies no constitutional text, statute, or Federal Rule of Criminal Procedure that even suggests its miscarriage-of-justice exception. And, it identifies no established common-law or equitable doctrine that resembles it.The Court instead grounds its exception in the need to avoid "bring[ing] the judicial system into disrepute." Ante, at 1, 11. Because federal courts have a "role . . . in approving and implementing appeal waivers," the Court argues, this Court must create appropriate rules for enforcing them, which should advance the court system's own "'institutional interest.'" Ante, at 8–9. 9
Of course, the Court's desire for a particular legal rule does not give it the right to create it. "Our duty is to apply the law, not to make it." Pine Grove v. Talcott, 19 Wall. 666, 677 (1874). Thus, concerns about public perception of the judiciary provide no justification for the Court's decision. The power to change the law to avoid outcomes that the people do not like "lies with the people, and not with the judiciary." Ibid.
Justice Kagan was petrified of how people would see the court if some judge imposed a sentence based on race, sex, or some other prohibited characteristic. I think the response to such misbehavior would be through the judicial misconduct process or even impeachment. Moreover, if there was an actual miscarriage of justice, I would think political pressure could be brought on the executive branch to modify the terms of sentence or perhaps even provide a presidential commutation. The political branches are capable of dealing with bad situations. The answer does not lie in the courts making stuff up.
As for the supervisory power, Justice Thomas responds directly to Justice Barrett:
JUSTICE BARRETT, for her part, adopts a sounder methodology. See ante, at 1 (concurring opinion). But, in my view, the common-law-of waiver principles she invokes cannot justify this decision either for several reasons. First, if today's decision could be justified as an act of common-law finding rather than policymaking, one would expect to find a more robust tradition of decisions applying a similar rule in similar situations. Yet, neither JUSTICE BARRETT nor the Court can point to any. See infra, at 22–23. Second, JUSTICE BARRETT cites authorities explaining that certain rights may never be waived. Ante, at 2; see infra, at 22. That general principle is true as far as it goes. But, common-law doctrines require rules with identifiable content for judges to apply, not only general principles. It is not entirely clear how the general principle that some rights cannot be waived leads to the Court's granular rule under which appeals can be waived, but those waivers become void if any of four specific factual scenarios later occur at sentencing. Third, this body of law precluded waivers of certain procedures that implicated the "substantial" features "of the legal tribunal" or the "fundamental mode of its proceeding." R. Bowers, Law of Waiver §397, p. 394 (1914). It is not clear to me that appeals of sentencing errors—appeals that did not even exist until 100 years after the founding and that must be asserted by the defendant—are sufficiently fundamental to criminal procedure for these doctrines to have any purchase. In any event, Hunter never developed an argument along these lines, which may explain why the Court, on my reading, declined to adopt it.
I've read and re-read Justice Barrett's short concurrence. I almost get the sense that she blinks. She knows Justice Thomas is right, and agrees with him, but finds some way to distinguish this case to avoid a "miscarriage of justice." In other words, Justice Barrett wouldn't want the judiciary to be viewed in such a negative light. But again, this approach to judging amounts to little more than virtue signaling.
Justice Kagan's opinion to avoid a "miscarriage of justice" is a throwback to the Warren Court where the Justices actively made policy. But as Justice Thomas explains, "policy concerns are not rules of decision in courts of law."
Justice Alito's vote in this case is baffling. He might think the exception is so narrow as to have no real effect.
Finally, it appears that the Court lacks Article III standing. Justice Thomas observes:
3Because Hunter cannot say whether he will ever be prescribed ob-jected-to medication, he has conceded that his claim is not ripe under binding Fifth Circuit precedent. Hunter may well lack Article III standing under our precedents. The Court nonetheless proceeds to the merits without addressing its jurisdiction.
Yes Justice Kagan and her colleagues leap over these procedural problems to engage in policy-making. Where is Justice Barrett on this jurisdictional point?
Kudos to Lisa Blatt. She won two cases on Friday, Hunter and the Rooker-Feldman case. Very different analyses, both victories.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Short Circuit podcast: Lawyers and bond hearings in the wrong order, plus, in #12Months12Circuits, we hit the Sixth.
Puerto Rico went through a special sort of bankruptcy to sort out its debt problems via a court-approved restructuring plan. Now, it asserts that claims against individual police officers for violations of constitutional rights are barred by the plan because the gov't has to defend those suits and can choose to indemnify the officers. First Circuit: The plan does not purport to extinguish these civil-rights claims, and it's dubious it could discharge them even if it tried.
Buffalo: We had to demolish this building on an emergency basis because it was an abandoned drug den on the verge of collapse. Property owner: Was not. Second Circuit: And this, children, is what we call a fact dispute. To the jury it goes!
For many years, Ruth Bader Ginsburg was a professor and an advocate. She had written and litigated extensively on many constitutional law issues, including sex discrimination and abortion. When Ginsburg became a circuit court judge, and then a Supreme Court justice, no one would have expected her to abandon all of her views on constitutional law. Of course she insisted during her confirmation hearing that she would approach issues with an open mind. But to no one's surprise, Ginsburg's constitutional jurisprudence largely reflected her scholarly agenda. I think much the same can be said of Professors Scalia, Breyer, Kagan, and other academics who became Justices. Indeed, these professors were nominated based in part on their scholarly writing.
Yet, I cannot recall any Justice so clearly stating that her judicial opinion was equivalent with her scholarly opinion--that was until I read Justice Barrett's concurrence in Hunter v. United States.
Barrett cites two of her own law review articles as support for her judicial opinion:
Like JUSTICE THOMAS, Iam skeptical that the SupremeCourt possesses an inherent, supervisory authority over inferior federal courts. See A. Barrett, The SupervisoryPower of the Supreme Court, 106 Colum. L. Rev. 324 (2006). At the same time, I have distinguished exercises of such authority from the development of procedural common law. See A. Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 883–884 (2008). The former concerns narrow, discretionary rules; the latter involves doctrines, like preclusion and abstention, which are "settled by tradition or emergent consensus." Id., at 884.
The use of the word "I" here is fascinating. Justice Barrett is "skeptical" of the supervisory power, citing Professor Barrett. Justice Barrett has drawn a distinction, citing Professor Barrett. This is a weird syncretism between Amy Coney Barrett's scholarship and her jurisprudence. Is there any daylight between what Professor Barrett wrote about two decades ago and what Justice Barrett thinks now? I doubt it.
Supreme Court nominees are often asked about their past writings. The stock answer is that those writings represented their role as an advocate or professor, but they will approach each case with a fresh perspective. Of course this response is not accurate, as Justices do not forget everything they once knew. And Justice Barrett's self-citation proves the point.
Plaintiff Lana Patrick is a self-described "Journalist/Activist." This case arises from Patrick's attempt to record a video inside the Pasco County Tax Collector's ("Tax Collector") office near Dade City, Florida….
"The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest." Smith v. City of Cumming (11th Cir. 2000). But the right to record is not absolute, because "the Constitution does not require the government to 'grant access to all who wish to exercise their right to free speech,' no matter the setting, 'without regard to the nature of the property or to the disruption that might be caused by the speaker's activities.'"
Instead, the validity of a regulation depends on the forum in which it applies: a traditional public forum, a designated public forum, a limited public forum, or a nonpublic forum. {Although the public may have an interest in the proper functioning of a county tax office, the First Amendment "does not guarantee access to property simply because it is owned or controlled by the government."} Patrick does not challenge the district court's characterization of the Tax Collector office's lobby as either a limited public forum or a nonpublic forum.
In United States v. Hemani, the U.S. Supreme Court yesterday held that the federal government could not prosecute Ali Hemani under 18 U.S.C. § 922(g)(3)'s "unlawful user" provision solely because he used marijuana a few times a week while owning a firearm at home. Ilya Somin and Stephen Halbrook wrote about the decision yesterday. In this post, coauthored with Wyoming law professor George Mocsary, I'd like to provide some additional perspective.
The Hemani decision is personally important to the many millions of Americans who use marijuana and who also possess firearms, while being careful never to mix the two. The Court has removed from these peaceable and responsible citizens the threat of a 15-year sentence in federal prison.
The decision is also important to the growing jurisprudential doctrine of the Second Amendment. Under the Court's precedents in Bruen and Rahimi, new types of gun control laws can be justified by analogy to older, historic laws. Hemani teaches that courts should be rigorous when the government attempts to make far-fetched analogies to disarm huge categories of Americans who are not dangerous. We argued in an amicus brief in the case, along with NRA's Joe Greenlee (the brief's lead author) and Professor F. Lee Francis of Widener Law School, that someone who uses marijuana is not comparable to a nineteenth century "vagrant" who might be sent to a workhouse, nor to a "habitual drunkard" who had to be institutionalized after losing his mental capacity. The Court agreed.
"Petitioner's testimony confirmed his 2017 confrontation with his parents, he had authored the Reddit posts, and he had publicly uttered racial slurs and had made statements about raping women."
[The New Jersey State Police] denied petitioner's application [for a gun purchase permit] …, concluding he "lack[ed] the essential character and temperament necessary to be entrusted with a firearm, pursuant to N.J.S.A. 2C:53-3C(5)." The Superintendent's decision was predicated "on the totality of the circumstances" after reviewing records demonstrating: Freehold Township (Freehold) had denied petitioner's two previous FPIC [Firearms Purchaser Identification Card] applications—one of which was affirmed on appeal to the Law Division; and petitioner's medical history, including a mental health evaluation; involvement in a domestic dispute; and "violent tendencies." …
[Freehold Chief of Police] Baumann explained he had denied petitioner's first application in 2021 primarily because of petitioner's prior mental-health evaluation and his failure to submit a clinical psychologist's opinion stipulating to his ability to handle firearms. Chief Baumann testified he had also been concerned with "a situation in [petitioner's] home where [his] father … or parents had taken away [his] privileges to some kind of computer use." They had "turned the electricity off and then [petitioner] had rewired it within the home, or something, potentially almost causing a fire."
[NJSP Firearms Investigation Bureau] Trooper Somers testified that during his investigation of petitioner's FPIC application filed with the NJSP, he had reviewed medical records that demonstrated in 2017 petitioner was psychiatrically evaluated in a hospital on the advice of his therapist and because his parents believed he was "becoming a threat to himself and others." Trooper Somers was concerned by two specific notes in the medical records—one of which stated petitioner had a history of treatment for depression along "'with a past history of vague suicidal gesture by cutting himself.'" The second note of concern stated petitioner's mother had told hospital staff she believed petitioner had "no moral compass," and she feared petitioner would become a "'psychopath.'"
The medical records reviewed by Trooper Somers also demonstrated petitioner had "been posting racially biased videos on YouTube, which" continued even after petitioner's parents and school had asked him to remove the videos and to refrain from further posts. The records also referenced physical altercations between petitioner and his father when petitioner's father cut electricity to stop petitioner's online computer activities and when petitioner had tried to restore electrical access to his bedroom. According to the records, petitioner had been diagnosed with oppositional defiant disorder requiring mental health treatment.
The decision, in yesterday's Rabiebna v. Higher Ed. Aids Bd., was written by Justice Annette Kingsland Ziegler, and joined by Justices Rebecca Grassl Bradley, Brian Hagedorn, and Janet Protasiewicz. The program provided state funds to students who were black; American Indian; Hispanic, meaning "a person of any race whose ancestors originated in Mexico, Puerto Rico, Cuba, Central America or South America or whose culture or origin is Spanish"; or (to oversimplify slightly) of Laotian, Vietnamese, or Cambodian extraction. The opinions are long, but the majority basically applied Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (2023).
Justices Jill Karofsky, Susan Crawford, and Rebecca Frank Dallet concurred in the judgment, but expressed their disagreement with SFFA.
Luke Berg, Rick Esenberg, Dan Lennington, and Nathalie Burmeister (Wisconsin Institute for Law & Liberty, Inc.) represent plaintiffs.
Thanks to Glenn Reynolds (Instapundit) for the pointer.
Today, is Juneteenth, the federal holiday commemorating the abolition of slavery - the greatest triumph of freedom in American history. In this post, I compile some links to my writings relevant to the holiday and its significance. All are posts published here on the Volokh Conspiracy blog, unless otherwise noted. Much of this is reprinted from last year's Juneteenth post. But I have added some new material.
"Reflections on Juneteenth," June 19, 2024. This post extends and elaborates on the points made in the 2021 post, and condemns the lame culture war over the holiday.
"Slavery, the Declaration of Independence and Frederick Douglass' 'What to the Slave is the Fourth of July?'", July 4, 2020. Douglass's famous speech sheds light on some of America's greatest evils - but also on the great good done by the Revolution and Founding. This post - and Douglass's speech - are not about Juneteenth, as such. But they are obviously relevant. Douglass rightly argued that the principles of the Revolution required the abolition of slavery - while also condemning the hypocrisy of the many white Americans who claimed otherwise.
"The Case Against the Case Against the American Revolution," July 4, 2019. A rebuttal to longstanding arguments - advanced by critics on both right and left - that the Revolution did more harm than good. The claim that the Revolution somehow set back abolition is a central argument of many of those critics. I explain why that argument is wrong.
"Slavery and Birthright Citizenship," Lawfare, Mar. 16, 2026. Article on the relationship between the abolition of slavery and the Birthright Citizenship Clause of the Fourteenth Amendment, and its implications for the birthright citizenship case currently before the Supreme Court.
"Why George Mason is Extremely Underrated," Reason, June 16, 2026 (symposium on "1776 All-Stars"). Article on a leading Founding Father, including his somewhat internally contradictory attitudes towards slavery and record on that issue.
From Craghtten v. U.S., decided Wednesday by the Ninth Circuit (Judges Kenneth Lee, Gabriel Sanchez, and Holly Thomas):
Isaac Craghtten—a Canadian-born American Indian and a lawful permanent resident of the United States—tried to acquire a firearm at a gun store in Idaho. But he was unable to do so because he lacks an alien registration or admission number required of non-citizens to complete the federal Firearm Transaction Record Form 4473….
Form 4473's alien-number requirement for non-citizens comports with the Second Amendment. The Second Amendment guarantees that "the right of the people to keep and bear Arms, shall not be infringed." "Like most rights," however, "the right secured by the Second Amendment is not unlimited." U.S. v. Rahimi (2024) (quoting D.C. v. Heller (2008)). We have explained that "the plain text of the Second Amendment only prohibits meaningful constraints on the right to acquire firearms." Thus, "in assessing whether particular laws imposing conditions and qualifications on the commercial sale of arms implicate" the Second Amendment right, we analyze "whether a challenged regulation meaningfully impairs an individual's ability to access firearms."
The collection of alien-related information required under Form 4473 does not meaningfully constrain the right guaranteed by the Second Amendment. In U.S. v. Manney (9th Cir. 2024), we held that the Second Amendment did not bar a conviction under 18 U.S.C. § 922(a)(6) for making false statements on Form 4473. We rejected the broad proposition that any law "inhibit[ing]" a person's "ability to acquire arms by regulating the purchase of firearms" violates the Second Amendment. Such a rule would mean that "even asking an individual to fill out the ATF 4473 form" would "come under [the] Second Amendment's plain text." Rather, we concluded that the false-statements prohibition permissibly "regulates statements made by the individual purchasing a firearm to ensure that a purchaser is not lying to a firearms dealer about who is purchasing the firearm."
I am happy to pass along this guest post from my frequent collaborator, Elliott Wainwright.
--
At oral argument in Trump v. Barbara, Justice Amy Coney Barrett askedseveraltimes how the Citizenship Clause works when members of Indian tribes are born beyond the limits of tribal domains. The peculiar Oregon Territory citizenship statute Congress passed in 1872 and the effect it had—or ought to have had—on the citizenship status of tribal Indians born in that territory appears to bear on Justice Amy Coney Barrett's inquiry. However, despite the fact that JohnVlahoplus and Michael L. Rosin have written about the 1872 law in recent years, it seems to have gone unmentioned in litigation over President Trump's January 2025 executive order regarding citizenship at birth. Nor was it put under the microscope in United States v. Wong Kim Ark or Elk v. Wilkins, the Supreme Court's flagship Citizenship Clause cases.
Since July 1868, the 14th Amendment's Citizenship Clause has proclaimed that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
In May 1872, Congress passed the first citizenship statute that adopted the Clause's "subject to the jurisdiction" locution, providing:
"That all persons born in the district of country formerly known as the Territory of Oregon, and subject to the jurisdiction of the United States at this time, are citizens of the United States in the same manner as if born elsewhere in the United States."
Section 1995 of the Revised Statutes, which continued the 1872 law, replaced "at this time" with "on the 18th May, 1872."
The catalyst for the 1872 Oregon Territory citizenship statute was U.S. District Judge Matthew Deady's November 1871 determination in McKay v. Campbell that William McKay was not a U.S. citizen. Within four months, one of Oregon's senators had proposed a bill to bestow U.S. citizenship on anyone born in the Oregon Territory between 1818 and June 1846 to British fathers and Indian mothers. But these temporal and parental limitations fell by the wayside. Under the 1872 law, the only requirements that needed satisfying were birth in the territory and being "subject to the jurisdiction of the United States at this time." The latter stipulation, though clearly modeled on the Citizenship Clause, conditions the grant of citizenship on jurisdictional subjection at the time of enactment rather than at the moment of birth.
Litigants challenging the executive order have disagreed about whether Elk v. Wilkins furnishes a rule for off-reservation births. Quizzed by Justice Barrett on whether the rule for tribal Indians was "tied to territory or [] tied to the status of someone as a member of a tribe," respondents' counsel Cecillia Wang stated that "Elk versus Wilkins doesn't really answer that question." Last year, the Solicitor General of the State of Washington told the U.S. Court of Appeals for the Ninth Circuit that Elk v. Wilkins compelled the view that a tribal Indian born in Seattle acquired U.S. citizenship pursuant to statute rather than the Citizenship Clause.
Law professors Akhil Amar and Vikram Amar championed a tidily territorial reading of the Citizenship Clause in their SCOTUSBlog Brothers in Law columns:
Surely there were countless situations in which tribally allegiant parents gave birth outside the soil of tribal enclaves. On our under-the-flag, soil-and-flag theory, these babies were all proper 14th Amendment citizens. They were, we believe, so treated by all branches of the American government at all relevant times.
In their view, the 14th Amendment grants citizenship at birth nearly universally beyond the limits of Indian domains, but withholds it entirely within them. If the Clause operates in this fashion, it would be logical for the 1872 Oregon Territory citizenship law to do so as well.
Government records attest that not all of Oregon's Indians were on reservations in May 1872. Six Oregon-born Indians were in the state penitentiary. Two of the six, per an account of their 1871 trial, were affiliated with the Simcoe reservation in Washington and had been convicted of attempting to execute a medicine woman on the orders of their chief. (A more legible copy is available from newspapers.com: Letter from Yamhill, Morning Oregonian (Portland, Ore.), Vol. 11, No. 65, Apr. 21, 1871, at 1.) In August 1872, the Klamath Indian Agency reported:
A portion of the Modoc band of Indians, under Captain Jack, who were parties to the treaty, and belong on this reservation, and were formerly here, went back to their old homes on Lost River, some fifty miles south from this place, about two years ago and refuse to come back, although repeated councils have been held with them for the purpose of inducing them peaceable to return.
In a section of his 1872 report entitled "Indians not on Reservations," the Superintendent of Indian Affairs in Oregon estimated that some five hundred of the Indians attached to Smohalla "belong at" either the Umatilla or Warm Springs reservation.
Judge Deady himself encountered cases of Oregon Indians living beyond the limits of reservations in 1872 in United States v. Osborn, over which he presided in April 1880. The defendant, Frank Osborn, was prosecuted for "having disposed of spirituous liquor to an Indian, under the charge of an Indian agent, contrary to section 2139 of the Revised Statutes." Judge Deady's opinion relates that the case concerned a sale to Joe Miller, an Indian who had been residing away from the Warm Springs reservation for more than eight years. The opinion also alludes to Indian Jim and his fifteen years' residence away from "one of the coast reservations." Judge Deady goes on to remark that "[t]he Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof, and I am not aware of any law or treaty by which any of them have been made so since." This sentence would be quoted approvingly three years later in Justice Horace Gray's majority opinion in Elk v. Wilkins.
Judge Deady's dicta in Osborn seems to rest on the assumption that, in the case of tribal Indians, "subject to the jurisdiction" is "tied to the status of someone as a member of a tribe" rather than "tied to territory." (Judge Deady's intuition that the prosecution could not be sustained if the sale were to an Indian who had acquired U.S. citizenship initially found support. (In re Heff, 197 U. S. 488, 508-509 (1905)). However, the Supreme Court overruled Heff a decade later. (United States v. Nice, 241 U. S. 591, 601) (1916). The Supreme Court indicated three years ago that Nice remains good law. (Haaland v. Brackeen, 599 U. S. 255, 278 (2023)).) Had Judge Deady entertained the suspicion that the Citizenship Clause and the 1872 statute laid down a strictly territorial rule, one might have expected his opinion to home in on Joe Miller's whereabouts when the 1872 citizenship law took effect and to eschew its sweeping pronouncement that all Oregon Indians remained non-citizens as of 1880. While Osborn never cites the 1872 Oregon Territory citizenship statute, Judge Deady and his fellow Code Commissioner did include the provision in their 1874 compilation of Oregon's laws.
Did Judge Deady need to pin down where Joe Miller was on May 18, 1872 in order to determine his citizenship status? Perhaps the Supreme Court's long-awaited last word on the Citizenship Clause will be accompanied by the court's first word on the earliest citizenship statute to incorporate the Clause's "subject to the jurisdiction" stipulation.
The Ninth Circuit held argument last week in a very interesting case on the Computer Fraud and Abuse Act, the computer hacking statute, Amazon.com Services v. Perplexity AI, No. 26-1444. The basic issue: If an Amazon user wants to use an AI agent to help make purchasing decisions on the user's behalf at Amazon, but Amazon doesn't want users to do that, has the AI company committed a federal hacking crime if Amazon tells the AI company to stay away but the AI company continues to make its services available to the Amazon customers?
Perplexity AI's main brief is here, and Amazon's main brief is here. Oral argument is below.
Having written a lot on the CFAA, I wanted to offer some brief thoughts.
First, as I argued back in 2016, in Norms of Computer Trespass, I think the correct way to interpret the statute in shared password cases is with an agency test. If authorized User A gives his credentials to user B, so B can access A's account, B is authorized under A's authorization when—and only when—B is acting as A's agent. From 1178-79:
This approach mirrors the analogous rule in the physical world. When access is limited by a physical lock and key, whether entry is a physical trespass law depends on whether it falls within the zone of permission granted by the owner. For example, in Douglas v. Humble Oil & Refining Co., a business owner gave an employee the key to his home so the employee could feed his pets when he was away. The employee later used the key to enter the home for a different reason. According to the court, this entry for reasons outside the scope of permission was a trespass. This approach allows computer account holders to share usernames and passwords with an agent. If the agent accesses the account on the account holder's behalf, the agent is acting in the place of the account holder and is authorized. The agent then has the same authorization rights as the account holder. For example, I recently set up a Gmail account for my students to email class assignments. I gave my assistant the account password and asked her go into the email inbox and collect them for me. When she did so, she was acting as my agent. Legally speaking, she was me. She was fully authorized to access the account in her capacity as my agent. Her conduct was authorized and legal, much like employee access to an employer's account for work purposes.
On the other hand, a third party who uses a password in pursuit of her own ends stands in the same place as a third party who has guessed or stolen the password. Consider the facts of Rich. When Rich accessed the LendingTree website using a password, he was not acting as an agent of a legitimate customer. Rich paid for access to the password, but he did not pay LendingTree. Instead, he paid an employee of a legitimate customer. Rich accessed the account to help himself get richer, not to help the employee. From the perspective of LendingTree, Rich's access was no different from access using a guessed or stolen password. Rich was not a legitimate customer or an agent of a legitimate customer. Whether he obtained the password by stealing it from the employee or by paying for it makes no difference to LendingTree. For that reason, Rich's access was unauthorized.
This morning in the Court I heard Justice Kagan hand down Hunter v. United States. As she announced it, I thought the Court reached a consensus ruling on a criminal procedure issue. But at the end, she said that Justices Gorsuch, Kavanaugh, and Barrett wrote separately. My immediate thought was "they have too much time on their hands and need to grant more petitions." But as I read through the decision, I realized how this case reflects the cost of near-unanimity.
Of the eight member majority, only Justice Kagan and Chief Justice Roberts did not write separately. There were two camps of three--and not the usual ones. Justice Gorsuch wrote a concurrence joined by Justices Sotomayor and Jackson, which was a frontal assault on plea bargaining in general, and appeal waivers in particular. Justice Kavanaugh wrote a concurrence joined by Justices Alito and Barrett, charging that Gorsuch set a "low bar" for plea waivers that "may not be entirely consistent with the Court's opinion."
Justice Kagan, for her part, made no reference to any of the three concurrences. She was holding onto the majority for dear life. Kudos to her for threading that needle. I'm sure the Chief Justice was thankful she had the author pen in this case. I wonder whether the Chief would have been better off writing a more pro-government opinion with Justices Alito, Kavanaugh, and Barrett, with Kagan in tow, allowing Sotomayor and Jackson to drop off. But perhaps Justice Kagan would not have gone along with that outcome, so this quasi-broad coalition was the best that can be done.
I will have much more to say about this case, especially the split between Justice Barrett and Thomas.
I have written quite a bit about Judge Ross's extrajudicial activities. I've also written how the Eleventh Circuit Judicial Council, and Chief Judge Pryor in particular, have handled this issue. Last Friday, I raised some questions about how Judge Pryor addressed Judge Ross's apology letter:
How does Chief Judge Pryor have this authority? Did the other (unnamed) members of the Council agree to this plan? Moreover, it seems that Pryor decided not to investigate Ross further based on her making her private reprimand into a public reprimand. How does he have that authority? Judge Ross would have never consented to any reprimand if it was public. Judge Pryor nullified the cornerstone of the Judicial Council's agreement with Judge Ross.
I am thankful that Professor Arthur Hellman addresses some of these questions in the following guest post.
--
The judicial misconduct proceedings involving Federal District Judge Eleanor Ross of Atlanta continue to generate controversy, much of it fueled by a blockbuster expose published by the New York Times on June 11. In this guest post I'll flag seven (mostly) procedural irregularities and suggest what might be done to clean up the mess that the proceedings have become. These points may seem technical, and to some extent they are, but many of them concern a basic question: who decides? The post assumes general familiarity with prior developments, summarized in the Times story.
A. Bypassing the Judicial Council
1. The Feb. 11, 2026, order of the Eleventh Circuit Judicial Council (incorporating the findings and recommendations of the Council's Special Committee, which investigated the matter) stated: "Any apology [issued in connection with the sanction] should be sufficiently specific so as to make clear to the recipient the sexual misconduct for which the judge is apologizing." That order was made public on May 22, when the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States (JC&D Committee) issued its order affirming it.
On June 8, four of Judge Ross's former law clerks (whose unease about the sexual activity taking place in the judge's chambers led to the initial complaint) wrote to the Judicial Council stating that they did not believe that the three-sentence apology letters they had received complied with the provision just quoted. The law clerks' letter went to Chief Judge William Pryor, who wrote to Judge Ross on June 10 asking her to respond to the "allegations." He specifically asked her to "state whether [she] failed to send adequate letters of apology to [her] former law clerks." He implied that if her response was not satisfactory, she might be subject to more severe discipline than the private reprimand she had received. He gave her a deadline of June 12.
On June 11, Judge Ross sent new letters to the law clerks and informed Judge Pryor of her action. Judge Pryor responded with a second letter, also on June 11, saying, in effect, that he would take no further action against Judge Ross. With Judge Ross's consent, he disclosed the new apology letters to The New York Times, which published a second story on June 12.
Judge Pryor's brief letter did not say whether Judge Ross had sent any response other than the new letters. Based on the public record, it is fair to conclude that Judge Ross acknowledged, at least implicitly, that her initial apology letters were not adequate.
The "procedural" problem here is that the apology requirement was part of the sanctions imposed by the Judicial Council – the only entity authorized to impose sanctions under the Judicial Conduct and Disability Act of 1980 (JCDA). By alerting Judge Ross to the possible inadequacy of the first set of apology letters, Judge Pryor implicitly invited her to write a new set that would be treated as compliant. That is certainly how Judge Ross read the letter. But it seems to me that only the Council could properly determine (a) whether Judge Ross should be given a second chance to comply with the apology provision of the Feb. 11 order and (b) if so, whether the new letters did comply.
2. The Feb. 11 Judicial Council order determined that a private reprimand was a sufficient sanction, and therefore it did not identify Judge Ross. Chief Judge Pryor's letters of June 10 and June 11 are the first official acknowledgment that Judge Ross is the "Subject Judge" referred to in the order. Judge Pryor's two letters have been posted on the Eleventh Circuit website. But the Feb. 11 order remains as it was originally issued, and the Council (as far as we know) has not been given a chance to reconsider its sanction and how it is to be reported. Again, Judge Pryor chose to bypass the Council.
3. Chief Judge Pryor's June 11 letter stated that he had decided not to identify a second complaint against Judge Ross. But under the Rules for Judicial-Conduct and Judicial-Disability Proceedings (JC&D Rules) he could, instead, have identified a new complaint and then dismissed it or concluded the proceeding. The Commentary to the JC&D Rules provides (pp. 14-15): "In high-visibility situations, it may be desirable for a chief judge to identify a complaint … (and then, if the circumstances … warrant, dismiss or conclude the identified complaint without appointment of a special committee) in order to assure the public that the allegations have not been ignored."
That might seem like a distinction without a difference. But it is far from that. Under another provision in the rules (Rule 11(g)(3)), if Judge Pryor had identified a complaint and thereafter issued a final order disposing of it, that order would have been subject to automatic review by the Judicial Council. By sending a letter rather than issuing an order, Judge Pryor bypassed the automatic-review mechanism.
B. Other Concerns
The analysis thus far has explained why Chief Judge Pryor's June 11 letter made it impossible for the Judicial Council of the Circuit to carry out its statutory role and determine whether Judge Ross had complied with its original order. But that is not the only concern raised by the exchange of letters on June 10 and 11.
On June 18, in United States v. Hemani, the Supreme Court unanimously held that the prohibition under 18 U.S.C. § 922(g)(3) of firearm possession by a person who is "an unlawful user of" a controlled substance violates the Second Amendment as applied to one who used marijuana "about every other day." Justice Gorsuch delivered the opinion, joined by Chief Justice Roberts and Justices Thomas, Sotomayor, Kavanaugh, Barrett, and Jackson. Justice Alito concurred in the judgment, joined by Justice Kagan.
Under Bruen, the provision burdens conduct presumptively protected by the Second Amendment because it bans a class of people from possessing (i.e., "keeping" or "bearing") any firearm. The burden thus shifts to the government to justify the ban based on longstanding, well-representative historical analogues, but the habitual drunkard laws on which the DOJ relied here "targeted different kinds of people, for different purposes, and operated in different ways" than does 922(g)(3).
The Court found it necessary to distinguish, in footnote 6, certain other provisions of § 922(g), including felon ban in (g)(1) and the categories in (g)(4) concerning any person "adjudicated as a mental defective" or "committed to a mental institution." Unlike subsection (g)(3), they "involve some manner of pre-deprivation process before an individual's Second Amendment rights are lost," and (repeating Heller) "nothing in our opinion should be taken to cast doubt" on them. (Other than the alien provision, the other § 922(g) provisions also entail pre-deprivation process.) The Court's reference to "pre-deprivation" actually speaks to, among other things, so-called red flag laws.
Hemani describes how at the Founding and thereafter, a habitual drunkard was someone who was regularly intoxicated so as to deprive him of his ordinary reasoning faculties. "Had habitual drunkard laws applied to those who simply drank regularly, many notable early Americans could have faced trouble." The Court's examples verge on the humorous: John Adams took "a tankard of hard cider" with his "daily breakfast," James Madison "consumed a pint of whiskey daily" (although another author argued that Madison "championed wine … as a healthier and more respectable choice"), "George Washington often drank three glasses of madeira in the evening," and Thomas Jefferson enjoyed "3 or 4 glasses [of wine] at dinner."Just before the Framers signed the Constitution, a farewell party was thrown for General Washington consisting of 55 guests at Philadelphia's City Tavern where they were served 54 bottles of madeira, 60 bottles of wine, 8 bottles of "Old stock," 22 bottles of porter, 8 bottles of cider, 12 bottles of beer, and 7 large bowls of punch!
With detail like that, the government's attempt to equate mere pot use with being a habitual drunkard appeared almost laughable. Not to mention that laws focused on habitual drunkards because they were virtually incapacitated and incapable of managing their affairs. Yet no evidence existed that Mr. Hemani's pot use every other day made him unable to manage his affairs or caused him to be physically-violent or be a risk to himself or his family. Under the government's theory, it does not matter if he "use[s] a mild gummy as a sleep aid a few times a week," or if as applied to others a husband "regularly takes his wife's prescription Ambien to sleep" or a college student "routinely uses a friend's Adderall to cram for exams."
Moreover, the government misunderstood the purposes of the historical analogues it cited, which "had little to do with protecting the public from categorically violent and unusually dangerous persons." The vagrancy laws were directed against those who failed to fit in with the culture of working. The civil-commitment laws sought to protect habitual drunkards from themselves and their families from financial ruin. Imposing a surety of good behavior protected society from scandals "against good morals."
The "why" or purpose of the above laws were thus not motivated to protect society from physical violence, and so the "why" of the Bruen methodology did not line up. And neither did the "how" of the government's purported analogues, for those analogue laws "usually provided some form of process before an individual lost any of his liberties, even temporarily." But § 922(g)(3) "automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user and until he ends his drug use—all without any pre-deprivation process." Look for lack of process to be a bone of contention in future prohibited person challenges.
Hemani next turns to the government's argument that the unlawful user provision disarms persons who as a category are violent and unusually dangerous. (Recall the 1936 movie Reefer Madness?) First, the ban is keyed to the Controlled Substances Act, to which drugs can be included without any association with violence, although "some unlawful users of controlled substances can pose a risk of violence." Second, when this case started, marijuana was listed on Schedule I, which includes drugs with "a high potential for abuse" with "no currently accepted medical use." But after oral argument, some marijuana products were declassified to Schedule III, which includes drugs with low potential for abuse and for which there is a "currently accepted medical use." All the while most states have legalized marijuana in different ways. All of that leaves the government "awkwardly positioned to suggest that the millions of Americans who now regularly use marijuana are categorically and unusually dangerous."
The Court notes that use of marijuana or other controlled substances may render a person dangerous, but the government insists that no such showing is necessary for a valid conviction. The following passage adopts the principle that the government's ipse dixit will not suffice where constitutional rights are at stake:
[The government] 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. (Quoting then-Judge Barrett's dissent in Kanter v. Barr (7th Cir. 2019).)
Hemani concludes that the decision is narrow. It does not address the "addicted to any controlled substance" prong of (g)(3) or (g)(1)'s provision where the felony is drug-related. "We do not even address whether the government could bring a prosecution under § 922(g)(3) accompanied by individualized proof that the defendant's use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason."
At bottom, Hemani strictly applies Bruen's principle of reasoning by historical analogy without any departure from that principle. As the Court did in Rahimi, it relies on the "why" principle that a valid deprivation of the arms right must apply to persons who pose a danger of violence and the "how" principle of pre-deprivation process.
Justice Thomas concurred in the opinion, adding (as he rightly does on firearm and other issues) that Congress has exceeded its powers under the Commerce Clause. Section 922(g)(3) criminalizes possession of a firearm by a drug user "in or affecting commerce," which courts read to mean having crossed state lines at some point in history. As Lopez held, that would "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."
Justice Jackson, joined by Justice Sotomayor, concurred, but wanted to remind us that "Bruen is unworkable," and that "means-end scrutiny—the approach courts applied before we adopted Bruen's 'history and tradition' metric—offers a more rational way of assessing the constitutionality of firearm regulations." In practice, that means that all firearm regulations are always constitutional.
Finally, Justice Alito, joined by Justice Kagan, concurred in the judgment. He agreed with the Court that the government's historical analogues are not "relevantly similar" to § 922(g)(3) "as applied to respondent," reminding us that this is an "as-applied" challenge, not a facial one. He repeated that nothing in the opinion casts doubt on provisions like §§ 922(g)(1) and (4), which concern felons and the mentally ill. But reality tells us that "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." He seems to suggest that prosecuting pot-using gun owners today is like beating a dead horse.
This case presents a conflict between individual rights and executive sovereignty. On one side are liberties guaranteed by the First and Fifth Amendments—specifically, the right of a public employee to be free from political viewpoint discrimination and the foundational promise of due process. On the other side sits an equally formidable principle of structural governance: the Executive Branch's exclusive Article II authority to control access to national security secrets. The friction between these two forces becomes acute when, as here, a plaintiff alleges that the Executive Branch used its security clearance process not to protect classified information, but as a pretextual weapon to execute an ideological purge.
The Supreme Court has left little room to maneuver when determining which of these constitutional interests wins out. See Dep't of Navy v. Egan (1988). Egan treats national security as a virtually impenetrable executive enclave. The Court held that no judicial body has authority to audit the substance of an underlying security clearance determination when reviewing an adverse employment action. And at least in the Eleventh Circuit, this limitation applies not only to the revocation of a security clearance, but also to decisions made at the suspension or investigatory stage. Hill v. White (11th Cir. 2003). "To review the initial stages of a security clearance determination is to review the basis of the determination itself regardless of how the issue is characterized."
The combined weight of Egan and Hill dictates the outcome here. Plaintiff Kelli-Ann Reilly sues the FBI and several officials "for politically motivated" retaliation and unlawful termination of her employment. She brings a few different claims, but they all center on the same "core issue": "the FBI revoked her security clearance to punish disfavored political viewpoints and enforce ideological conformity." Under Hill and its progeny, if the alleged malfeasance is tied to the security clearance pipeline, as here, the inquiry is at an end.
Make no mistake, the factual allegations in this complaint are troubling. Reilly's charge that the FBI transformed its background check process into an instrument for political screening is profoundly troubling. But institutional discomfort cannot hand a federal court jurisdiction it does not possess. Because evaluating Reilly's claims requires inquiry into the security clearance process itself, her case "is not within the jurisdiction of the courts." …
Here are the relevant facts from Reilly's complaint, which must be accepted as true at this stage. Reilly worked at the FBI as a financial analyst for twenty-six years. She held a Top-Secret security clearance and successfully passed several periodic security-clearance reviews. She steered clear of any disciplinary actions or internal misconduct. Her record, in short, was spotless.
Then the 2020 presidential election happened. Reilly told her supervisor that she felt the election "involved irregularities and might be overturned through lawful judicial processes." The institutional reaction was quick. Within a month, her security clearance was suspended. As the FBI tells it, she had relayed "baseless conspiracy theories associated with" possibly violent or criminal organizations. Concluding that these viewpoints rendered her "potentially vulnerab[le] to manipulation and coercion," the FBI stripped her security clearance and placed her on unpaid administrative leave pending a full investigation.
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 (elsewhere, I have argued that most of the federal War on Drugs is itself unconstitutional). The ruling also features a joint concurring opinion by Justice Alito joined by Justice Kagan - a rarely seen combination.
Justice Neil Gorsuch wrote the opinion for the Court, joined by seven justices in all. Here's an excerpt:
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." Ibid….
§922(g)(3)'s unlawful user provision burdens conduct presumptively protected by the Second Amendment. After all, that statute bans a class of people including Mr. Hemani from possessing essentially any firearm for any purpose. As a result, the government acknowledges, it has a burden to carry….
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….
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." Bruen, 597 U. S., at 28. But, even taking all that into account, the government cannot carry the burden it has set for itself. We decide cases "based on the historical record" and arguments "compiled by the parties" before us. Id., at 26, n. 6. And the habitual drunkard laws on which the government relies here differ dramatically from §922(g)(3)'s unlawful user provision on every single metric the government invites us to consider: They targeted different kinds of people, did so for different purposes, and operated in different ways. Whether any one of these problems taken in isolation would prove fatal to the government's cause, we need not decide. Taken cumulatively, we hold, they certainly do. And, apart from pointing to habitual drunkard laws, the government has not even attempted to prove that any other specific historical principle might justify its prosecution in this case….
Gorsuch goes on to point out that habitual drunkards are fundamentally different from people who merely drink alcohol - or use marijuana - on a regular basis:
Had habitual drunkard laws applied to those who simply drank regularly, many notable early Americans could have faced trouble. John Adams took "a tankard of hard cider" with his "daily breakfast….". Some say James Madison "consumed a pint of whiskey daily." D. Okrent, Last Call: The Rise and Fall of Prohibition 8 (2010)…. George Washington often drank three glasses of madeira in the evening—"not enough to be considered a heavy drinker in his day." Id., at 5. Thomas Jefferson enjoyed "3 or 4 glasses [of wine] at dinner…."
There was, in short, a "culture of copious drinking" in early America. D. Korostyshevsky, Incapable of Managing His Estate: Habitual Drunkards and the Expansion of Guardianship in the Nineteenth-Century United States, 43 Law & Hist. Rev. 795, 800 (2025)….
Given all this, it seems the government's historical laws targeted habitual drunkards not merely because they regularly used intoxicants, or even sometimes used them to excess. Instead, those laws focused on habitual drunkards because their drinking rendered them practically incapacitated and incapable of managing their affairs….
The law [at issue in this case], the government insists, does not require it to show that a particular individual is regularly incapacitated, much less incapable of conducting his affairs or a threat to himself or others. Put simply, on the government's telling, §922(g)(3) sweeps in large numbers of people without regard to whether their substance use has the kind of incapacitating effect on them that historical habitual drunkard laws normally required. This case illustrates the disconnect. The government considers Mr. Hemani an unlawful user of a controlled substance because he admits to using marijuana about every other day. But how much marijuana does Mr. Hemani use, in what potency, and to what effect? Is he routinely unable to manage his affairs, a risk to himself or his family?….. We do not know and, the government says, it doesn't matter…
Importantly, the Court's reasoning isn't limited to disarming marijuana users alone. Justice Gorsuch emphasizes that one problem with the government's position is that it would allow denying gun rights to anyone who uses a drug in a way restricted by federal law, regardless of whether the user becomes dangerously incapacitated or not:
Nor does the government's theory stop at Mr. Hemani. It extends equally to a husband who regularly takes his wife's prescription Ambien to sleep and a college student who routinely uses a friend's Adderall to cram for exams. Id., at 56–58. The drug involved makes no difference. Nor, again, does it matter how much an individual uses or the effects it has on him. That someone regularly uses any substance found on any of the CSA's five schedules for anything other than its "prescribed purpose" is enough…. Without more, the government asks us to analogize all such persons to habitual drunkards. To state the analogy is to expose its deficiency….
[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).
This suggests that mandated disarmament of other types of users of illegal or restricted drugs is also unconstitutional, except in cases where the users are incapacitated or dangerous in ways similar to "habitual drunkards."
Gorsuch does stress that the ruling is in many respects…a narrow one." It does not definitively resolve the issue of how to address alls laws disarming users of various illegal or restricted drugs. Nor does it deal with situations where the law bans possession of a gun while the user is actually intoxicated or high. But the Court's reasoning nonetheless clearly sweeps beyond the specific circumstance of marijuana use.
In his concurring opinion, Justice Alito, joined by Kagan, applies slightly different reasoning:
Although I agree with the Court on [various key] points, I would affirm on a different ground from those on which the majority relies. As the opinion of the Court explains, the habitual-drunkard laws that the Government cites did not allowofficials 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…."
The mismatch between the Government's historical analogues and the theory on which the Government defends the constitutionality of §922(g)(3) as applied to respondent is clear. All that we know about respondent's marijuana use is that he used the drug about every other day. We do not know how much he used, the strength of the marijuana he used, how many times he used it on the days in question, the time of day when he used it, where he used it, or the degree to which this use affected his ability to exercise judgment and perform daily tasks responsibly….
Marijuana consumption is increasingly common in this country. Many States have legalized its use and sale, and although possession of the drug remains a federal crime, very few persons are convicted of that offense each year. The Government has largely tolerated the production and sale of marijuana when done in accord with state law, and it has allowed a multi-billion-dollar marijuana business to develop….
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….
I agree with both the majority and with Alito's uncharacteristically civil-libertarian concurrence.
In a concurring opinion joined by Justice Sotomayor, Justice Ketanji Brown Jackson agrees that the Court rightly applied the Bruen "history and tradition" framework, but argues that that framework is itself badly flawed, relying on dubious and difficult-to-apply historical analogies. She argues, instead, for applying "means-ends scrutiny." I think she's largely right about that. But the solution is not to weaken judicial protection for Second Amendment rights to but use a different approach to enforcing them. On that point, I agree with much of Randy Barnett and Nelson Lund's critique of Bruen, published soon after the ruling:
[H]istorical analogies will frequently provide insufficient guidance, particularly for novel gun control laws that address modern problems. Looking at whether individuals could have knives and guns on eighteenth-century ships, for instance, does not provide a persuasive reason either to uphold or invalidate a modern regulation prohibiting weapons on commercial aircraft. That law is designed to prevent aircraft hijackings, a danger quite unlike the threat of mutinies in previous centuries.
What's the alternative? Rather than relying on specious historical traditions, courts could evaluate gun laws against the purpose of protecting the right to keep and bear arms: facilitating the exercise of the fundamental right of personal and collective self-defense. In particular, judges could require the government to prove that a challenged restriction of the right to keep or bear arms does not vitiate the ability of Americans to use firearms to defend themselves against violent threats that the government cannot or will not prevent. In this way, judges can distinguish regulations that reasonably regulate this fundamental right from those that unreasonably obstruct it.
Better to start with the text and purpose of the Amendment and apply that to the facts of particular gun regulations, than the reverse! And the Barnett-Lund approach strikes me as compatible with Jackson's advocacy of "means-ends scrutiny," though I'm not sure either they or she would agree. Courts should consider whether the purpose and operation of the law in question is incompatible with the rights protected by the Second Amendment, and - if the purpose is permissible - whether the means used nonetheless unduly "obstruct" the right to bear arms.
Finally, Justice Clarence Thomas has a concurring opinion arguing that the law in question not only runs afoul of the Second Amendment, but also goes beyond Congress's authority under its power to regulate interstate commerce. The Commerce Clause does not authorize Congress to criminalize intrastate possession of guns "solely on the ground that they crossed state lines at some point in the past." I agree! Congress may only restrict the interstate sale and transportation of goods, not their mere intrastate use and possession. And this point, as Thomas has recognized in past opinions, applies to the War on Drugs, as well.
In sum, not only is this an excellent decision, but it's a rare case where we have four different opinions by various justices, all of which are largely right. I wish there were more rulings like this one!
