Pot and Guns

This morning, the Court issued its decision in United States v. Hemani. The Justices unanimously agreed that 18 U.S.C. 922(g)(3), as applied to Mr. Hemani, violated his Second Amendment rights. 

I talked about U.S. v. Hemani on my Substack; one entry linked in my last SCOTUS entry. It was a 9-0 opinion with multiple concurrences. It received support from both liberals and conservatives. Just what it decided is unclear. 

The link argues it is a limited decision. People should, on some level, carefully remember that it decided a limited question. It did not broadly, in all ways, allow users of marijuana (and other controlled substances) to own firearms. 

Gorsuch wrote the opinion of the Court. He summarizes the facts in a way that particularly favors the defendant. The government thought the guy was a terrorist. He was not. 

(There are implications that he and his family -- he is a dual Pakistani and U.S. citizen -- were profiled in some fashion.) 

He cooperated. He lived with his parents and had a stable job. He ultimately was charged merely with owning a gun while being an "unlawful user." It wasn't related to drug trafficking or "anything like that." 

He was just someone who used marijuana "every other day."  Oh. He had cocaine, too. But, hey, he said he didn't use it recently, or anything.  

The justices, including Jackson (with Sotomayor), who concurred to say it was stupid, granted that Bruen was good law. "All Americans" (what does that mean? are longstanding residents who are not citizens, "Americans"?) have an individual right to keep and bear arms for self-defense. 

The opinion didn't provide a whole quote from that opinion. For instance, Bruen opens with a basic statement that "ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense." 

Marijuana possession is a federal crime. Hemani was not a "law-abiding" citizen. He admitted it. Note also that this opinion doesn't say "citizen." It speaks of "All Americans." 

We should, however, look at what the Court specifically decided. That often requires some nuance. Reporting and a quick read often lead to wider assumptions.

The opinion reminds that regulations need to be “consistent with the Nation’s historical tradition of firearm regulation." The federal government said that the specific provision involved matches up with "habitual drunkard" laws.

Gorsuch argues the "how" and "why" of such laws don't match the current provision. Again, framing things Hemani's way, he notes that otherwise the law in question allows for "prison for up to 15 years and disarmed for life." 

The opinion notes the government "seeks to prosecute" Hemani. It is unlikely they will seek a term anywhere near that length. The lifetime disarmament fears are also somewhat premature. 

Habitual drunkard laws generally disarmed people who were typically so drunk that they could not go about their normal business. That is not what is involved here. Unlawful use regularly doesn't involve people being drugged out of their minds daily. 

(The provision also could apply to something like Adderall. People regularly use that, including to "cram for exams." They aren't like "habitual drunkards.") 

The opinion reminds us that at the time of the Founding, people drank a lot of alcohol. Yes. 

For various reasons, including the fact that it was safer than most beverages. Our drinking habits are different now. We are also a much more populated society, with more dangerous guns, and more ways they are liable to cause harm. Also, in time, we determined that drugs could cause various harms, leading to regulation.

The specific focus on "habitual drunkard" laws, which are cited by the government to satisfy the Court's own rules, leads to a limited result. The provision here is a bad fit, yes, but the forcing is the Court's fault.

The Court flags that many drug users would not be violent. The law in question does not provide a hearing before disarming. Okay? 

Congress determined that certain drugs were dangerous enough as such. These developments happened later. Appeals to original history are of limited value here. 

Sometimes, the drugs involved are regulated for health reasons. This is not the same as being "categorically" dangerous. Recent events regarding rescheduling marijuana only emphasize this. 

The opinion ends by underlining that various types of firearm bans still might be acceptable. For instance, those that cover people actually intoxicated. Hemani regularly is intoxicated. 

Thomas references the Commerce Clause, which the majority notes wasn't involved here. The link to interstate commerce depends on the situation, including how the gun was obtained. 

Jackson cites the problem with Bruen. She favors "means-ends" scrutiny instead of so much focus on "contested historical questions." 

Scrutinizing the fit between a challenged law’s justification and its operation is an essential part of any sensible framework for Second Amendment adjudication.

Alito adds more on how marijuana is generally accepted today in his concurrence with Kagan. It's a reasonable-sounding opinion, though, having a "living constitutionalist" flavor. Not that I find that problematic. It cites how current practices are like original ones, but don't know how much that adds. 

The question presented directly addressed the Second Amendment. It probably would have been better if the opinion had simply, perhaps as a matter of constitutional avoidance, found the provision too vague and arbitrary. It said as much in a fashion.

The law literally would cover everyone who uses the covered substances. It might result in extreme results. See also, prosecutorial discretion, and its usage in this case, arising from an apparently mistaken investigation. "Morals" legislation, including drugs, regularly leads to such arbitrary results. 

[Underlining the value of careful scrutiny.]

The government, however, provided a narrower application. Just what that entails, however, is vague and open to arbitrary application. Since constitutional rights are at stake, it would be best to avoid that, including by raising procedural due process red flags. 

(A law that threatens free speech might be held to be overbroad even if the specific speech involved can be criminalized. The citation of Adderall fits in here.)

If we grant a constitutional right to own a firearm, it is reasonable to require a careful process to be in place before criminalization. The law here, like the reference to Adderall suggests, is not just about marijuana. I understand the result.

Nonetheless, the appeal to "habitual drunkard" laws was the road to confusion. Yes, the law isn't really like that. It was just cited to try to fit things into Bruen. 

The specific person here was a regular user of marijuana. It is an intoxicant. I think marijuana should be legal, and I appreciate the move to reschedule (which was done after Hemani's possession). But Hemani was an "unlawful" user of a drug, which (rarely unenforced, it might be) had serious penalties.

Again, this raises due process concerns, like other morals crimes. So, the result here is sound, on some level. The details, however, turn me off.

For instance, the overall logic of the opinion suggests you really don't have to be a "law-abiding citizen" to have RKBA. People can possess and even regularly use illegal substances. The government has to provide a careful process to show that the usage is dangerous enough not to own a firearm. 

And, what of other law-breakers? One lower court addressed people who commit welfare fraud. What level of law-breaking warrants disarmament? And, is a "lifetime ban" particularly a problem? 

The Supreme Court in the past referenced 14A, sec. 2, to allow felony disenfranchisement. Is gun possession different? The militia and voting are likely connected. See also jury service. The opinion not referencing the "law-abiding" language ... is that notable? 

Anyway, I doubt the Hawaii decision will be unanimous. We are likely to see it later this week. They should have decided the two opinions together. Show how the Court "reasonably" disagrees, with one gun case unanimous, the other likely 6-3. 

Finally, will marijuana usage now show up as polite in other cases? Some people claim marijuana has religious uses. The arguments tended to fail, but now litigants have a supportive opinion, especially if selectively quoted. 

Will federal RFRA claims work now? Time will tell.  

Young and Innocent

 

This Hitchcock film was on TCM. I liked the co-star, who looks older than she was. 1930s film. Well paced. 

Their Finest

I read the book and watched the film (fairly loyal to the book) before. I did so again, finishing the book today. The author did a lot of (WWII-related) research. 

Both are recommended. The DVD has a director's commentary. The book cover is from the film.

The book has more subplots and is a quick read (over 400 pages). The film in the book and film have different titles.

NY Primary

 

My two options for early voting are the state comptroller (long-term Democrat) and the House (I'm represented by Rep. Ritchie Torres) races. Basically, protest votes.  

Torres has been a jerk at times and too pro-Israel (basically, they can do no wrong). He has strongly gone against Trump. Still, I'm glad I can vote against him in the primary. The other race? Some left-leaning groups endorsed the challenger. Okay. Eh.

SCOTUS Watch

We are focused on Supreme Court things lately. The regular term will end soon, and there will be fewer.

The Order List again had a few interesting tidbits, including granting a case to determine if states need twelve-person juries for felony cases. The different policies regarding juries have led the Supreme Court not to nationalize all the federal rules (see, e.g., grand juries) there yet. 

They did not (without comment) take a challenge involving a now nearly 100-year-old federal judge who has been taken off regular service. It is a bit of a conservative cause celebre in some quarters. Others aren't too excited. They figure Congress set forth guidelines that allow courts of appeal to regulate such things, and it wasn't unjustly applied here. 

Jackson (with reason) and Alito (not) recused without saying why. Alito (with Thomas) wanted to take a criminal justice case. Alito wanted to take a case involving schoolchildren:

When she sought approval to hang flyers at school to advertise club meetups, school administrators would not approve the flyers because they contained pictures of students with “Defund Planned Parenthood” placards. 

Alito and various conservatives are more open to the federal courts intervening when conservative causes are involved. Meanwhile, the justices are preparing for the final burst of opinions, many of the twenty or so left "hot button" issues. 

There is only one (Thursday) opinion day scheduled so far. Granting another next Thursday is a gimmee; that is still not enough. At least two more should be necessary. Having one tomorrow would have been logical. We shall see how things go.  

Meanwhile, like usual, the Order List has some notable matters, even if nothing earth-shattering. 

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ETA: I talk about the opinions handed down later in the week, including marijuana/guns, here. 

Alabama Doesn't Executes Jeffrey Lee

Lee, who has been on death row for 25 years, was convicted of the 1998 murders of Jimmy Ellis and Elaine Thompson during a pawn shop robbery in Dallas County. He was also found guilty of the attempted murder of Helen King.

The death sentence and planned execution are problematic on multiple grounds, but only a few justices (at most) have agreed with the reasons.  

Twenty-five years is too long. Justice Breyer explained why. I will continue to cite his dissent. 

Sotomayor, for the liberals, flagged the problems with nitrogen gas. The others think "not enough."

An Alabama jury recommended 7-5 that he receive life without parole. A judge overrode them. 

The policy is no longer in place. The justices have rejected multiple appeals that flagged the problem. 

The jury, even without other potentially mitigating evidence, did not find him guilty enough to die. A double robbery/homicide clearly has aggravating circumstances. A majority of the jurors still thought he did not deserve to die.

The lower courts split one last time. The district court found some problems with nitrogen gas, but not enough. The court of appeals disagreed, sending it back to determine if a backup method (the firing squad) was available.* The state appealed. 

Steve Vladeck argued that the Supreme Court intervening, given the technical status of the case, would be particularly dubious. Hours after the execution was scheduled, the appeal was rejected. 

(I find it asinine that things work this way. That we have a finale on execution night. It is how it is set up. The state is partially to blame. It should change.) 

The machinery of death, with Thomas, Alito, and Gorsuch dissenting, was stopped. For now. 

I have argued that final refusals to intervene, even if hopeless appeals, should be at least minimally explained in death penalty cases. I think so here. 

Anyway, Jeffrey Lee shouldn't be executed. A majority of his jury said so. Too long ago. 

If he's executed, he shouldn't be executed by nitrogen gas. There is too much doubt. I know. Is the firing squad better? I guess? 

Maybe, just let's not execute him at all. Alabama hasn't for over twenty-five years. Why start now?

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Note: The rules hold that if you challenge an execution method, you need to provide an alternative. 

Maybe, see Glossip v. Gross, things would be different if the state used crucifixion or something, but they haven't found any such method now exists.

So, the firing squad was chosen. Is it better? Some experts suggest that it is. People think it is barbaric. It sounds like it would be. But pain and suffering-wise, it very well might be the best approach.

Not free from botching, of course.  

SCOTUS Watch: Opinions

The Supreme Court is running out of no-drama opinions. We had three today. One split 6-3, but it was not a major dispute.

Jackson had a unanimous bankruptcy ruling. Thomas (with Gorsuch) said, "Let's go big." Sotomayor said, "Let's not."

Kagan had a unanimous statutory ruling. Bluesky legal minds flagged a notable comment that might limit the Trump Administration's current activities somewhat:

We hold that a defendant charged with violating §1519 must be tried in the district where the falsification occurred; he cannot be tried in a different district where the investigation was located.

The third case was a 6-3 opinion (Barrett v. Jackson) with Jackson having an extended discussion about legislative history. She's big about that sort of thing.

Kagan got off the bus there:

Reliance on legislative history may be appropriate when statutory text in context remains, after careful review, stubbornly ambiguous.

Kagan thought "text, structure, and statutory history" did the trick here. She did not (unlike Sotomayor) join Jackson on the rest. A reasonable position, succinctly expressed. 

I don't know who's correct as to the merits. I do generally trust Kagan's judgment when there is a disagreement. But her overall reasonableness is a guide for us all.  

Constitutionalism 

David Strauss, about fifteen years ago, wrote a helpful little book discussing "living constitutionalism." 

He argues that a form of common law, restrained somewhat by text (especially about clear matters such as the number of senators), is the appropriate path. 

Strauss goes a bit too far on how the amendments overall have been of little consequence. They do repeatedly do less than one might think. 

For instance, the Sixteenth Amendment overruled a dubious 5-4 income tax opinion decided in the 1890s. The original Constitution, on its own, authorizes income taxes.

On the other hand, acknowledging Jim Crow, the Fifteenth Amendment did signficantly advance racial equality, especially in the North. It helped in the South, even then, at least for a few decades. 

Originalism is a dubious path. It is not some big restraint. The alternatives are not just "make stuff up." And, originalists do that too, in a fashion. 

One online comment accepted the approach for rights but not powers. Doesn't work. The two are connected. And, appeals to original understanding to apply the Commerce Clause or whatever is silly business. 

Military Chaplain Updates

Military chaplains are a usual example of when we can have government support of religion.* 

Granting that, religion, especially mixed with government, remains a sensitive subject. The streamlining of "faith codes" underlines the point with controversy from various quarters. 

The so-called Department of War [still not a thing] posted on Twitter (blah) the general goal:

In order to clarify the work of chaplains and simplify the work of commanders, the Pentagon has consolidated and simplified the list to roughly thirty codes — using the previously used labels for faiths.

The Pentagon’s job is not to adjudicate theological debates, but instead to ensure sincerely-held faith is respected and encouraged in our ranks.

I'm not sure if its job is to "encourage" faith, sincerely-held or not, either. But, okay, let's go with that.

There was a major hiccup when Mormons were not labeled "Christians." Many Republicans (and Trump supporters) are Mormons. That caused a flare-up.

The new codes did not designate specific Christian denominations as such. Catholics were just "Catholics," not "Catholics (Christian)."

People were still upset that many other religions were left out. We just have a catchall "Other Religions" category.

Also, we have a single "Judaism" category, which includes multiple major groups, and a bunch of separate, relatively small (Church of the Nazarene?) Christian groups. 

Secretary of Defense Hegseth, who wears his specific Christian beliefs on his sleeve and promotes them in his official capacity, also made other changes. 

Hegseth has not earned much respect as someone to trust with such things.

Before the change, a chaplain’s uniform carried their rank insignia along with a symbol denoting their religion.

The policy, he said, “speaks to the difficult balance of the duality of a military chaplain. A chaplain is first and foremost a chaplain and an officer second. This change is a visual representation of that fact.”

Hegseth also said that removing rank allowed chaplains to “be seen among the highest ranks because of their divine calling.”

The person is a military chaplain. Rank is important to the military. They were seen as chaplains before. I'm unsure why this move is necessary. I would like to know how chaplains overall feel about it. 

The directive follows a broader effort by Hegseth to reshape the military’s Chaplain Corps. In a December message, he said he wanted to restore chaplains’ focus on ministry and argued that the role had shifted toward counseling and support functions in recent years.

What "ministry" entails depends on the person. For many, it would include "counseling and support functions." This seems like an idiosyncratic view of what the appropriate role of a chaplain is. Did he think the old way was too "woke"?

The good faith of this Administration, with its Christian Nationalism overtones, on this issue is already questionable. Hegseth has also shown to be racist and sexist, including regarding firings. 

We can move on from that. The general issue is sensitive. It is a good thing that it is getting some attention. Perhaps, more kinks will be worked out. 

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Note: Religion is one of those subjects that will sometimes lead people to jump to first principles, including rejecting special rules for religions at all. Some will make some snide references.

So it goes. "Religion" is referenced in the First Amendment and is a general legal category, including in human rights law. It's a thing. 

SCOTUS Watch: Order List

The Order List was fifteen pages, which suggested there was some sort of opinion. And, there was another (it is her thing) Sotomayor statement flagging a criminal justice issue:

Although I agree with the Court’s decision to deny certiorari for the reason explained below, I write separately to address the problematic standard the Mississippi Supreme Court applied to the claim petitioner Tony Terrell Clark raised under Batson v. Kentucky [racial discrimination in peremptory challenges], 476 U. S. 79 (1986), in the context of his ineffective-assistance-of-counsel claim.

Mark Joseph Stern also flags on Bluesky:

SCOTUS tosses out a 4th Circuit decision allowing compassionate release under the First Step Act when there are arbitrary sentencing disparities between a defendant and his co-conspirators. Orders reconsideration in light of Rutherford. KBJ and Sotomayor dissent.

This is a typical "GVR," where they "grant, vacate, remand" a case so that the lower court can apply a related opinion. Kagan dissented in Rutherford and joined the limited concurrence written by Sotomayor in the other case referenced in the GVR.

As Stern notes, it isn't fully clear what this means, but it is concerning since it appears to suggest the lower court should apply the (dubious) rulings even broader than necessary.  

Alito and Barrett didn't take part in cases without saying why. Only Kagan and Jackson consistently do so. I prefer that approach. 

One tidbit is that "The United States’ claims in this case are hereby dismissed with prejudice" in an interstate dispute. No reason provided. 

There will be opinions on Thursday. There is also an upcoming execution, which I will discuss separately. 

ETA: Amy Howe posted her summary.

One tidbit is the rare request for a reply to a request for a rehearing. The request is by Lisa Blatt,  superlawyer, and cites changing lower court precedent. Also, looking at the docket page, the Supreme Court posted a request earlier, but it was removed as a mistake. So, one big trivia question.

==

The error flagged here is not uncommon. 

I have repeatedly seen it assumed that the original First Amendment would require thousands of members. A case of not reading closely.

Checking, the House reached 200 members in the 1820s. The measure was bound to be out of date eventually. It was suitably not ratified as written.