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.