Fiddlers, Drunkards, Marijuana, and the Second Amendment
The Supreme Court's unanimous decision in Hemani.
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.
The Issue
Section 922(g)(3) of the federal Gun Control Act makes it unlawful for anyone who is an "unlawful user of" or "addicted to" a controlled substance to possess a firearm. Because the Section incorporates the Controlled Substances Act (CSA) by reference, § 922(g)(3) reaches unlawful users of any drug on any federal schedule. This includes everything from heroin, on Schedule I, down to Robitussin AC, on Schedule V.
As the Court pointed out, any illegal use triggers the 15-year federal felony, plus a lifetime ban on firearms possession. The use can be as minor as taking one of your wife's prescription Ambien pills when you have a headache, or using a friend's Adderall when cramming for an exam.
Hemani was prosecuted after a search of his family home for suspected terrorism-related activity. The search did not find evidence to charge him with terrorism, drug possession, or violent conduct. Rather, Hemani's indictment was based on his admission that he used marijuana about every other day. He was charged with possessing a firearm while being an unlawful user of a controlled substance. The government did not assert that Hemani was addicted, that he handled the gun while intoxicated, that he had misused a firearm, or that his marijuana use made him dangerous. Hemani challenged his prosecution on the ground that it was not consistent with the Second Amendment. The district court granted his motion to dismiss; the Fifth Circuit upheld the dismissal; the Court upheld the Fifth Circuit.
The Majority
The result was unanimous. Justice Gorsuch's opinion for the Court had seven votes, while Justices Alito and Kagan joined in a separate concurrence. The majority applied the familiar Bruen framework.
The government conceded that § 922(g)(3), as applied to Hemani, burdened conduct presumptively protected by the Second Amendment because it barred him from possessing any firearm for any purpose. Pursuant to Bruen, the government therefore carried the burden to show that its prosecution was consistent with our nation's historical tradition of firearm regulation.
The government's principal historical analogues were laws concerning "habitual drunkards." No Justice agreed with the government's analogy. The Court grouped habitual drunkard laws into three categories: vagrancy laws, civil-commitment laws, and surety laws. According to Bruen, a court should look at the "why" and "how" of a proposed analogy. The habitual drunkard laws failed both tests, the Court said.
The current federal statute, 18 U.S.C. § 922(g)(3), targets every "user," no matter how innocuous and peaceable. In contrast, the "habitual drunkard" laws were only for people whose drinking rendered them unable to manage their affairs or unable to exercise self-control.
The Court also held that there was a purpose mismatch. Gun control laws are usually aimed at reducing gun misuse, such as in violent crime. The government's proffered historic laws about drunkards or vagrants were aimed at different problems, such as idleness or dependency. Protecting social order, the historic laws also tried to protect the drinker and his family from incapacity and financial ruin.
The manifest social ills of intoxicant abuse were well-known, and the government was actively responding. But the "how" was different. Although some people drank too much, the government did not disarm every intoxicant "user."
In analogies about the "how" of traditional laws, due process is central. The historical laws cited by the government typically required some due process—a conviction, judicial proceeding, guardianship adjudication, or surety hearing—before a defendant's liberty was restricted. By contrast, as the Court wrote "the statute 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."
The American tradition of arms regulation allows for truly dangerous persons to be disarmed. The federal Gun Control Act forbids nine categories of persons from possessing firearms or ammunition. Most of these categories, such as being a convicted felon, involve at least a plausibly elevated risk of danger.
In contrast, § 922(g)(3) is the unusual gun prohibitor that outsources its rationale. Subsection (3) includes anything listed in a separate law, the CSA. That law declares itself to be about all sorts of issues that have nothing to do with gun misuse or violence. The CSA's purposes include prevention of substance abuse, even when nonviolent.
Arguing to uphold the ban, the government had to argue that marijuana users were more dangerous than the general population. Yet as the Court pointed out, marijuana is legal in most States. And Congress has constricted Department of Justice funding for enforcement of federal marijuana laws. Moreover, the Executive branch has moved some marijuana from Schedule I (outlawed) to Schedule III (regulated).
In short, Hemani rests on foundations that both originalists and a non-originalists can find compelling. For the originalist, it is disarming the dangerous and respecting the rights of others. For the modernist, it is respecting the messages recently sent by the States, Congress, and the Executive. Marijuana is legal at least sometimes in most States; Congress has constricted funding for marijuana enforcement; and the President has moved marijuana into the lawful, regulated category of controlled substances.
In practical application, Hemani is broad. How many Americans use guns and marijuana, but never together? At least millions and probably tens of millions. Hemani liberates the millions from the threat of 15 years in federal prison.
Although the Court decided a marijuana case presenting no evidence of the user's dangerousness, the Court expressly did not decide for against future cases that might involve:
- addicts,
- persons intoxicated while using guns,
- whether the government could prove that use of a given drug always renders its users dangerous, or
- individualized determinations that a specific defendant's drug use made him dangerous.
The opinion expressly did not disturb § 922(g)(1)'s felon prohibition or § 922(g)(4)'s mental-health-based prohibition.
The Concurrences
Justice Thomas joined the majority, but he wrote separately to question whether § 922(g) exceeds Congress's Commerce Clause power when applied to purely intrastate firearm possession based only on the fact that the firearm previously traveled in interstate commerce. That issue was not presented, but Justice Thomas urged courts to revisit it in an appropriate case. (A similar argument about section 922(g) was made in David Kopel & Glenn Reynolds, Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban, 30 Connecticut Law Review 59 (1997).)
Justice Jackson, joined by Justice Sotomayor, also joined the majority in full but used the case to renew her Bruen protest. In her view, the case illustrated how much of the analysis resembles means-end scrutiny: the Court and the government were both asking, in different language, whether the law's means fit its asserted public-safety end. She urged reconsideration of Bruen in a future case. We question the assertion that Bruen is unworkable.
Justice Alito, joined by Justice Kagan, concurred in the judgment. Their opinion would have resolved the case with simpler historical focus: habitual-drunkard laws concerned persons incapacitated in a persistent and pervasive way, whereas the government knew only that Hemani used marijuana about every other day. The concurrence emphasized that the decision should not cast doubt on other § 922(g) provisions, especially the felon and mental-illness prohibitions.
Takeaways
First, Hemani is an as-applied decision about the unlawful-user theory the government chose to defend. It is not a facial invalidation of every possible application of § 922(g)(3), and it does not protect firearm possession while intoxicated. Some lower-court opinions have argued that as-applied challenges should not be allowed in Second Amendment cases. Hemani makes clear that they are perfectly legitimate.
Second, Hemani gives teeth to Bruen and Rahimi's admonition that courts should reason by analogy without demanding a historical twin. The government does not need an identical Founding-era statute, but it does need a historically-grounded regulatory principle that is comparable in whom it burdens, why it burdens them, and how it does so.
Third, the Court treats dangerousness as a claim that must be historically and analytically grounded. The government cannot simply invoke public safety at a high level and then disarm a broad class whose defining trait does not reliably map onto the asserted danger.
Fourth, the "how" inquiry includes a due process component. Justice Thomas had first expressed the point in his Rahimi dissent and here the Court agreed.
Our Brief and Hemani's Historical Analysis
At the oral argument last March, the Solicitor General for the U.S. government argued that historic laws against habitual drunkards justified the current law against marijuana users. As the senior Justice, Justice Thomas asked the first question:
Ms. Harris, the drunkards weren't the only one included in these sorts of statutes. What was the public safety concern about those who—using subtle crafts, juggling, unlawful games or plays, feigning themselves to have knowledge of physiognomy, palmistry, or pretending that they could tell fortunes?
Our brief raised the same point.
The government argued that laws against "vagrants" justified gun bans for drug users. Our brief argued the opposite, and the Court agreed:
Vagrancy laws usually targeted those who 'did not meet the societal expectation of work,' W. Quigley, Reluctant Charity: Poor Laws in the Original Thirteen States, 31 U. Rich. L. Rev. 111, 169 (1997), and sought to promote productivity and suppress various vices, not to protect the public from a category of unusually dangerous persons.
Our brief was the only one that cited Quigley. Additionally, Hemani's summary of historic laws agrees with ours:
Around the time of the founding and for decades following it, a habitual drunkard was generally someone who 'for any considerable part of his time [was] intoxicated to such a degree as to deprive him of his ordinary reasoning faculties,' In re Tracy, 1 Paige Ch. 580, 582–583 (N.Y. Ch. 1829); a regular or even frequent drinker did not usually fit the bill. Many statutes defined the term to require that someone drink to such excess that he was 'incapable of conducting [his] own affairs,' Ark. Rev. Stat., ch. 78, §1 (1838) (W. Ball & S. Roane eds.); 'mentally incompetent,' Minn. Terr. Rev. Stat., ch. 67, §12 (1851); or had 'lost the power of self-control,' Act of July 25, 1874, §1, in 1874 Conn. Pub. Acts 256.
We had not expected to write a brief discussing jugglers, fiddlers, bagpipers, palm readers, people who neglected their callings, loafers, and others treated as idle or disorderly. But that's what the laws were about.
The Court emphasized that vagrancy laws covered not just habitual drunkards, but also "'Vagabonds, Common Beggars,' 'pipers, fidlers . . . stubborn servants or children, [and] 'common nightwalkers.'" (citing some of our sources). The government's analogy, in other words, proved too much. If vagrancy laws justified disarmament of habitual drunkards, they might also justify disarmament of fiddlers, stubborn servants, or persons who have not yet settled on a career. The Court rightly resisted an analogy with such implausible implications.
Our brief also argued that historical firearms-and-intoxicants laws were conduct-based and situational. They regulated shooting, carrying, purchasing, or militia activity while intoxicated. They did not disarm sober persons who sometimes used intoxicants. Disarmament should be based on loss of self-control, dangerousness, or misuse.
Looking ahead
Hemani leaves substantial room for narrower laws and prosecutions. The government can defend applications involving addiction, present intoxication, individualized dangerousness, or drugs proven to carry distinctive risks of violence or impaired judgment. Legislatures and regulators may draft targeted rules focused on intoxicated possession, impaired firearm use, or carefully supported drug-specific risks.
More broadly, Hemani underscores the importance of historical precision in Second Amendment cases. As the first unanimous Supreme Court decision in a Second Amendment case since 2016 (Caetano v. Massachusetts, remanding the Massachusetts Supreme Judicial Court's upholding a conviction for stun gun possession), Hemani affirms Bruen: "analogical reasoning under the Second Amendment is neither a regulatory straitjacket nor a regulatory blank check."
[This post also appears on the University of Wyoming Firearm Research Center's Forum, where I am a Senior Fellow.]