23 Jun Supreme Court Decides Second Amendment Case Involving Marijuana User
On June18th, the Supreme Court held that the federal government’s indictment of Mr. Hemani under §922(g)(3), which bars “unlawful users of” a “controlled substance” from possessing a firearm, violated the Second Amendment. The majority called its ruling “narrow,” and noted that it was not addressing the constitutionality of larger questions like whether laws banning addicts or those that are presently intoxicated from possessing firearms.
18 U. S. C. §922(g)(3) provides that anyone who is an “unlawful user of” or “addicted to” a “controlled substance” is automatically banned from possessing a gun. Violations carry up to 15 years in federal prison and disarmament for life. The law incorporates the Controlled Substances Act into the definition of “controlled substance.” The law makes it illegal for anyone who unlawfully uses any drug on the CSA to possess a firearm.
This case centers around the prosecution of Ali Hemani, a dual citizen of the United States and Pakistan. The federal government suspected him of terrorism related activities and conducted a search of his home in 2022. As a part of that search, they found the firearm in question and marijuana that he admitted to smoking “about every other day.” The federal government brought a single charge under §922(g)(3) against Mr. Hemani for being an “unlawful user” of a controlled substance based solely on his admitted marijuana use and the fact that he had a gun in his home.
Mr. Hemani sought to dismiss the indictment by arguing that the application of §922(g)(3) against him violated the Second Amendment and all nine Supreme Court Justices agreed with him, although they offered different rationales as to why. The majority opinion, authored by Justice Gorsuch, applied Bruen’s history and tradition test and found the federal government’s historical analogues “fail[ed] under every measure it ask[ed the Court] to consider…”
Under Bruen, if the government infringes on conduct covered by the Second Amendment’s terms, the burden shifts to the government to show the law is “consistent with the Nation’s historical tradition of firearm regulation.” While the majority emphasized the importance of the historical test in Bruen, it also reaffirmed what Rahimi held: that the government need not find a “historical twin” to carry its burden. The key is for the government to show that the contemporary regulation is “relevantly similar to ones well-established in the Nation’s history.” And the government demonstrates the similarities by comparing the “why” and the “how” of the modern law to the historical one.
In this case, the federal government sought to analogize §922(g)(3) to historical habitual drunkard laws. The Court rejected the federal government’s argument that the §922(g)(3) and the historical laws both targeted individuals because they “regularly use intoxicants” and because they were meant to protect the public from “unusually dangerous” individuals. Importantly, the Court did not try to distinguish the laws because one targeted drinking and the other involves drug use (again, no historical twin is needed). The Court acknowledged that “many drugs well known today were unknown in early America,” and that the Second Amendment “can, and must, apply to circumstances beyond those the Founders specifically anticipated.” The issue instead was that the habitual drunkard laws “differ[ed] dramatically from §922(g)(3)’s unlawful user provision on every single metric the government invite[d the Court] to consider: They targeted different kinds of people, did so for different purposes, and operated in different ways.”
In rejecting the federal government’s analogy that both the modern and historical laws targeted those that “regularly use intoxicants”, the majority pointed to the historical record, which showed at the time of founding there was a “culture of copious drinking,” but that alone did not render someone a “habitual drunkards.” Providing colorful examples of many of our Nation’s founders, the majority points out that John Adams took “a tankard of hard cider” with his “daily breakfast”, James Madison may have “consumed a pint of whiskey daily,” and George Washington “often drank three glasses of madeira in the evening.” The Court concluded that the historical laws targeted habitual drunkards “because their drinking rendered them practically incapacitated and incapable of managing their affairs,” which does not compare to the government’s reading of §922(g)(3), which “automatically disarms anyone who regularly uses any amount of any controlled substance for anything other than its ‘prescribed purpose.’”
The Court found the government’s argument that §922(g)(3) seeks to protect the public by disarming “unusually dangerous” individuals even more problematic. Even assuming the government was correct about the §922(g)(3)’s purpose (which it later rejected), the Court explained that the historical laws the government pointed to had “little to do with protecting the public” but rather targeted individuals who did not meet certain societal expectations like working or caring for their families.
Going back to the purpose of the modern law, the Court explained the government’s argument that §922(g)(3) seeks to disarm “violent” and “unusually dangerous” individuals was misplaced both because it relies on the CSA and because of the government’s approach to marijuana in general. As the Court noted, drugs can be added to the CSA for many reasons which may have nothing to do with their potential to induce violence. As to the marijuana issue, the Court pointed out that the federal government has moved some marijuana uses to Schedule III and the DOJ has issued a memorandum directing federal prosecutors to curtain enforcement efforts against marijuana users. Against this backdrop, the Court found the federal government’s argument “awkward” as to the “millions of Americans who now regularly use marijuana” if it is claiming they are now categorically “unusually dangerous.”
Finally, the Court emphasized its decision was narrow and noted that nothing in its opinion should cast doubt on the constitutionality of other provisions of §922 like those that disarm convicted felons ((g)(1)), those that disarm a person “adjudicated as a mental defective” or “committed to a mental institution” ((g)(4)). The Court also emphasized that its decision does not prohibit legislatures from enacting laws banning possession of firearms by those thought to present “a special danger of misuse.” Nor does its decision question that there may be circumstances where an individual’s unlawful use of marijuana or any other controlled substance could render that individual a danger to others. The Court also noted it was not deciding if laws banning addicts or those presently intoxicated were constitutional.
Justice Thomas issued a concurrence, which no other Justice joined, to argue that §922(g)(3) exceeds Congress’ power under the Commerce Clause.
Justice Jackson also separately concurred, joined by Justice Sotomayor. She argued that while the majority correctly applied Bruen, she continues to believe that the Bruen decision was wrongly decided and that the Court should go back to a means-end scrutiny approach.
You can review the decision here.