SCOTUS Unanimously Ruled That the Second Amendment Trumps Anti-Drug Sentiment

The Supreme Court has a history of facilitating the war on drugs by whittling away at civil liberties, to the point that critics have long perceived a “drug exception” to the Bill of Rights. But last week, when the justices unanimously upheld the gun rights of cannabis consumers, they made it clear that there is no drug exception to the Second Amendment.

The Court’s consensus reflects the blatant illogic of a federal law that makes it a felony, punishable by up to 15 years in prison, for an “unlawful user” of “any controlled substance” to possess a firearm. That policy is so clearly inconsistent with “this Nation’s historical tradition of firearm regulation,” the lodestar of the Court’s Second Amendment decisions, that jurists and organizations across the political spectrum united in condemning it.

The case involved Ali Hemani, a Texas man who admitted he owned a pistol and used marijuana a few times a week, which would have been enough to convict him of illegal gun possession. But a federal judge dismissed the charge on Second Amendment grounds, and the U.S. Court of Appeals for the 5th Circuit upheld that decision.

The 5th Circuit, which is often described as the country’s most conservative federal appeals court, said that result was consistent with its prior conclusion that the Second Amendment bars such prosecutions when they are based on nothing more than the statutory elements. The Trump administration, despite its avowed commitment to “protecting Second Amendment rights,” asked the Supreme Court to reject the 5th Circuit’s reasoning and reinstate the charge against Hemani.

The case featured strange bedfellows on both sides. Counterintuitively, the attorneys general of 18 blue states that have legalized recreational marijuana joined the Trump administration in urging the Supreme Court to allow Hemani’s prosecution, apparently because they thought protecting gun control was more important than defending the principle that cannabis should be treated like alcohol.

The Trump administration’s position provoked vigorous objections from the National Rifle Association, other leading Second Amendment groups, and several libertarian organizations (including Reason Foundation). They were allied with the Drug Policy Alliance, the National Organization for the Reform of Marijuana Laws, and the National Association of Criminal Defense Lawyers.

Even more striking: The American Civil Liberties Union, which had long maintained that the Second Amendment does not guarantee an individual right to arms, joined Hemani’s Supreme Court brief, which explicitly defended that right. The ideologically diverse coalition opposing Hemani’s prosecution vividly illustrated the potential for transpartisan alliances at the intersection of gun control and the war on drugs.

The Trump administration’s case hinged on a plainly inapt comparison between cannabis consumers and “habitual drunkards,” who historically could be confined to jails, workhouses, or asylums under vagrancy and civil commitment laws. The justices had no trouble recognizing the fallaciousness of that analogy.

“The habitual drunkard laws on which the government relies here differ dramatically” from the law under which Hemani was charged “on every single metric the government invites us to consider,” Justice Neil Gorsuch noted in the majority opinion. “They targeted different kinds of people, did so for different purposes, and operated in different ways.”

The Court left open the possibility that gun-owning drug users could be prosecuted when there is additional evidence that they pose a threat to public safety. But it concluded that the government may not strip people of their Second Amendment rights or prosecute them for illegal gun possession simply because they are marijuana users.

The implications are broad, since survey data suggest that something like 20 million American cannabis consumers own guns. Although only a tiny percentage of potential defendants are prosecuted each year, that means bad luck can send people to prison for violating an arbitrary, widely flouted, and haphazardly enforced law.

That law criminalizes conduct that violates no one’s rights, as gun and drug laws routinely do. The Supreme Court’s decision is a modest but welcome step toward rectifying that injustice.

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