Gun Ban for Pot Users Unconstitutional

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.