On January 27, in United States v. Hembree, the Fifth Circuit held that the federal felon firearm ban (18 USC 922(g)(1)) based on a conviction for simple possession of methamphetamine violates the Second Amendment. Coincidentally, on March 2 the Supreme Court will hear oral argument in another case that came from the Fifth Circuit, United States v. Hemani, which concerns whether the federal firearm ban by an unlawful user of drugs (18 USC 922(g)(3)) violates the Second Amendment.
The opinion by Judge Higginson, joined by Judge Willett and Judge Engelhardt, is rendered with the backdrop that the Fifth Circuit has upheld the felon-in-possession ban facially, but has recognized the viability of as-applied challenges. Given that the government sustained its burden to show the ban's facial constitutionality, it argued that the burden shifted to Hembree to demonstrate its unconstitutionality as applied to him. The court relegated that argument to a footnote citing Rahimi: "It is the government's burden to demonstrate that the challenged regulation is 'relevantly similar to laws our tradition is understood to permit.'"
While "in some instances, we have remanded to allow party presentation of history and discussion of intervening caselaw before the district court," here "the government provided robust historical discussion in its briefing and specifically 'offer[ed] analogues to other felonies,' for our review as well." It's a good sign that litigants have learned to proffer what they deem to be the historical analogues required by Bruen, given the initial criticisms of the text-history method that lawyers and judges are incapable to doing anything more than analysis of means-ends scrutiny.
But that's where the government fell short. First, it cited historical laws imposing severe punishment for possession of contraband, including "laws punishing the knowing receipt of a stolen horse, the theft of mail, and the counterfeiting and forgery of public securities with death." But in a prior decision, the Fifth Circuit refuted such purported analogues: "Those Founding-era offenses—knowing receipt of a stolen horse, mail theft, and counterfeiting—'concern theft, fraud, or deceit,' not the 'use and sale of addictive drugs.'" None of these alleged analogues are firearms regulations and thus could not possibly demonstrate a historic tradition of firearm regulation.
Second, the government pointed to historical laws "disarming dangerous people," adding that "drug crimes are inherently dangerous," even mere possession, which "entails the dealing with and enriching of drug traffickers." However, the government offered nothing about "the dangerous nature of narcotics" other than the mere fact of Hembree's conviction.
In contrast to the government, which failed to meet its burden of showing that a felony based on drug possession aligned with "the Nation's history and tradition of disarming individuals whose past criminal conduct demonstrates a special danger of misusing firearms," Hembree pointed out that possession of drugs, including opium, was not unlawful at the Founding and that non-medical drug use became unlawful only in the 20th century. Moreover, without evidence of intoxication at the time the person used a firearm, no historical analogue existed based on a person's habitual or occasional drug use. That is, of course, the issue right now before the Supreme Court in Hemani.
The government relied on Rahimi to urge "dangerousness" as the criteria, but that was at too high a level of generality. As the court replied, "Indeed, not one piece of historical evidence suggests that, at the time they ratified the Second Amendment, the Founders authorized Congress to disarm anyone it deemed dangerous."
Judge Willett wrote a concurring opinion, as he often does, to make some broader points questioning the overgrowth of federal power. When the Federalists advocated adoption of the Constitution without a bill of rights because powers not delegated are reserved, Patrick Henry replied: "Why not say so? Is it because it will consume too much paper?"
Even without the Second Amendment, does the felon-in-possession ban rest on an enumerated power of Congress? The Constitution delegates power to Congress "To regulate Commerce … among the several States." Judge Willett writes: "Perplexingly, the Supreme Court once declared that this power 'is not confined to the regulation of commerce among the states.'" That's from United States v. Darby, 312 U.S. 100, 118 (1941). More recently, the Court has tried to better define and limit the commerce power.
Hembree's argument that no enumerated power exists for the felon ban is foreclosed by Fifth Circuit precedent. However, as Judge Willett wryly remarks, "where the enumerated-powers belt slips—as the Anti-Federalists foresaw—the Second Amendment suspenders hold, at least for Hembree." And Judge Willett "remain[s] open to reconsidering whether § 922(g)(1) truly falls within Congress's enumerated powers."
It is noteworthy that the Hembree court engaged in no discussion whatever about the dangers of methamphetamine, as would have been highlighted in the pre-Bruen days of intermediate scrutiny. The drug originally became popular in Germany in the 1930s. Because it could keep soldiers alert and aggressive, it became a staple of Germany's Blitzkrieg attacks. As shown in a recent documentary, the Brits and Americans discovered its enhanced qualities and issued doses by the millions to their soldiers.
I first encountered "crystal meth" or "crank" in the '80s when court-appointed to represent a defendant on federal gun charges. The guys on a construction crew were addicted to the drug. Their dealer sought to avoid prosecution for trafficking by introducing the crew members to an undercover ATF agent who pretended to be the top dealer. He said no more meth to you guys unless you get me firearms (that was his hook to bring gun charges). They couldn't find any real guns so they built pipe bombs for the undercover agent. The ATF agent created the crime to get credit for having it prosecuted.
The government should not seek cert in Hembree. To date, both the Biden Administration in Rahimi (involving a violent wife beater) and the Trump Administration in Hemani (involving a pot head who also allegedly possessed cocaine and supposedly had connections to terrorism) have brought cases to the Court with unsympathetic defendants and fact patterns. It would be unfortunate if meth heads, gang bangers, and stoners became the test case rights claimants in foundational Second Amendment cases.
Methamphetamine is listed on Schedule II as it does have medical uses, but it can be addictive and dangerous. We'll see what the Supreme Court does with Hemani, which concerns gun possession by a marijuana user.
