On Monday, March 2, the United States Supreme Court heard oral arguments in a case addressing controlled substances and Second Amendment rights. In general, the court reviewed the challenge by testing it against the Bruen precedent, asking some significant questions implicating analogous laws at our country’s founding.
United States v. Hemani challenges the constitutionality of 18 U.S.C. 922(g)(3), the federal law prohibiting firearm possession by unlawful users of controlled substances (such as marijuana), under the Second Amendment. You can read more about the procedural history of the case here.
Following are a brief synopsis of those arguments.
Arguing for the government: Sarah M. Harris, Principal Deputy Solicitor General, Department of Justice.
- The government likens marijuana users to habitual drunkards and argues under this analogy that there is “a historical tradition of disarming categories of people who present a special danger of misuse.”
- It asserts that class-based disarmament (or imprisonment) for habitual drunkards was executed under vagrancy statutes, civil commitment statutes, and surety laws. The government specifically argues that this class-based disarmament did not require “individualized dangerousness findings.”
- Finally, it argues that these restrictions are “temporary” and fall away when an individual stops the behavior placing them in that category.
Justice Gorsuch questioned the definition of “habitual drunkard,” admonishing the government that “We have to remember the founding era,” and citing the frequent and daily use of alcohol by John Adams, James Madison, and Thomas Jefferson.
A significant portion of the court’s questions attempted to clarify what an “unlawful user” is under the statute and how that relates to “habitual user.”
Both Justice Gorsuch and Barrett struggled with the “lawfulness” of the statute versus whether the drug itself makes people more dangerous.
Also discussed was the government’s current administrative goal of rescheduling marijuana and whether that outcome would change anything for gun owners, which the government asserted, it would not.
Arguing for the defendant, Mr. Hemani: Erin E. Murphy.
- The defense argued that the government made a “…category mistake, because the laws to which the government points applied only to habitual drunkards, not to habitual drinkers.”
- The defense makes a further distinction between “those who consumed alcohol frequently but mostly in moderation, from those who so habitually consumed alcohol to the point of intoxication as to impair their ability to function even in whatever moments of sobriety they may have had…”
- It’s also significant to note that the defense is not making a facial challenge to the statute, but an argument that it is unconstitutional as applied to Mr. Hemani.
- Defense argues that under Bruen, the government has the burden of proof to ensure that modern law “maps onto the historical tradition” it is attempting to defend.
- The defense also raised a vagueness problem with the constitutionality of the statute, noting that the ATF has attempted to define a habitual or regular user by prescribing different standards, such as testing positive or having a conviction for “use within the last year,” and also conceding that a “a single incident of unlawful use could make a person an ‘unlawful user.'” Justice Gorsuch summarized, “the government has not been able to define what a user is.”
News2A Comment
While it’s impossible to know what the outcome will be, it seems that a considerable number of justices had difficulty accepting the government’s arguments. In general, they seemed to side with or at least show sympathy towards the defense.
You can listen to the recorded oral arguments and view the full transcript on the U.S. Supreme Court website.
