The unanimous judgment of the Supreme Court is United States vs. Hemani They argued that the federal government violated the Second Amendment when it disarmed Ali Hemani based solely on his habitual marijuana use. That’s important. But this is not the comprehensive drug and gun ruling that some may want to see.
For state courts, the message is more accurate: Marijuana-only firearms bans are now constitutionally weak. but tabernacle There is plenty of room for restrictions related to conduct, intoxication, evidence of more frequent impairment or dependence, more dangerous drugs, trafficking, or individual risk findings. Nor would it preclude the government’s ability to use different historical arguments to justify even marijuana-related convictions in separate cases.
As a result, tabernacle It’s more of a roadmap than an endpoint.
what tabernacle actually held
During a search of Ali Hemani’s parents’ home, federal agents found marijuana, cocaine and firearms. Hemani admitted that the marijuana and firearm were his and that he used marijuana approximately every other day. The government relied solely on his confession to indict him under a federal law that disarms “illegal users” of controlled substances.
In other words, the government’s position was simple. Regular marijuana use alone was enough to extinguish Hemani’s Second Amendment rights.
The court disagreed. Apply the originalistic approach described in New York State Rifle & Pistol Association v. Bruenthe court asked whether the federal ban was sufficiently similar to historic laws established by the government. In particular, the government pointed to historic laws regulating “habitual drinkers,” such as vagrancy laws, civil liability systems, and guarantor requirements. But that analogy failed. The court held that these laws target chronic incapacity, disability, dependence, or danger. It also generally provided more process than federal law before deprivation. It has not automatically disarmed everyone who regularly consumes alcohol.
That distinction was important. Hemani used marijuana every other day. The government did not rely on addiction, inebriated gun handling, trafficking, violence, intimidation, or dangerous misuse. The government also has no allegations related to cocaine use. In that record, historical parallels did not hold.
weed is the new alcohol
There’s one reason tabernacle What has become clear is that marijuana now occupies a very different social and legal status than it once did. As Justice Samuel Alito agreed, marijuana use today is much like alcohol use at its founding.
In other words, someone who uses marijuana several times a week in states that have decriminalized recreational use is functionally similar to someone who drinks beer or wine several times a week. And, the justices said, regular drinking, even routine drinking, has not historically been treated as grounds for categorical disarmament.
The majority cited the founders’ own habits to make their point. John Adams reportedly started his day with hard cider for breakfast. Thomas Jefferson is said to have had several glasses of wine in the evening. For that reason alone, no one would have called either of them “regular drinkers,” subject to the government’s restrictions.
The historical traditions invoked by governments were, in other words, targeted at something more: incapacity, dependence, disorder, misuse, or danger. If marijuana is the new booze, then marijuana use alone cannot do the constitutional work that addiction, dangerous behavior, and the inability to deal with personal matters caused by drinking have historically done.
But other drugs may be different
tabernacle It was a marijuana incident. The court has said so repeatedly. He took pains to emphasize that “this case is a narrow case.”
Regular use of cocaine, methamphetamine, or opioids may provide a stronger case for disarmament. These substances may carry greater risks such as compulsive use, impaired judgment, erratic or dangerous behavior. These characteristics closely resemble the chronic debility that has historically been associated with habitual drunkenness.
However, that does not mean that all firearm restrictions when using these drugs are automatically constitutional after their use. tabernacle. The government still has work to do to uphold these laws. rear tabernacleits limitations should be tied more closely to the types of risks that history law dealt with and how history law was operated.
it’s one of those tabernaclecore lesson. The constitutional issue did not just involve marijuana. It is that the government has demonstrated a weak historical basis for deeming normal and repeated use sufficient, despite no evidence of impairment, addiction, misuse, danger, or individual risk.
The 5th Circuit’s broad rules did not prevail.
It is also important not to read too much tabernacle in the opposite direction.
The U.S. Court of Appeals for the Fifth Circuit suggested that, at best, history supports laws prohibiting possession of firearms while intoxicated. The Supreme Court affirmed the Hemani finding, but not its broader rule.
That matters to state courts. States do not have to prove that all drug and gun laws are intoxicated persons transportation laws. The court left open the possibility that drug use could have firearm-related legal consequences even if a person is not currently intoxicated.
But again, a country cannot simply classify someone as a user. There needs to be something more on the record to justify disarmament, especially in marijuana cases.
post-bridge Litigation depends on records established by the parties
There is another reason tabernacle Must read carefully: bridge The constitutional outcome will in any case depend in particular on the presentation of political parties.
The court emphasized that it decides Second Amendment cases based on the historical record and the arguments presented by the parties. federal government history tabernacle None of the nine judges could be persuaded. But that doesn’t mean every government that upholds every drug-related firearms law will necessarily fail.
States that advocate similar laws and prosecutions may offer different historical parallels. It may rely on Reconstruction-era sources that the federal government did not highlight in this book. tabernacle. We may focus on laws related to dangerous conduct, mental illness, intoxication, or armed criminal activity. Indeed, in other cases involving the same federal law, the government has relied on different historical sources and chosen not to explain them. tabernacle. Perhaps the government decided that such a history was weaker than the regulatory tradition it provided, but there is no way to know how the majority of judges viewed these different traditions.
The heavy reliance on party presentation is both a feature and a drawback of parties. bridge. The analysis will depend on what the parties allege, what sources of information they rely on, and how the court characterizes the parties. tabernacle Resolving constitutional issues based on a series of historical arguments. This book should not be read in order to freeze historical research and postpone the opposite outcome in another case.
State laws vary widely
The state law landscape on this issue is particularly diverse. Some states are essentially copying the federal model in question. tabernacle. West Virginia, for example, prohibits illegal users of controlled substances and addicts from possessing firearms. in State v. Wilfongthe West Virginia Supreme Court treated that type of ban as presumptively legal. rear tabernacleapplications such as Will Fong If disbarment is based solely on marijuana use, it can be challenged with the Second Amendment still in place.
Other states are in different positions. Minnesota excludes eligible medical and adult-use marijuana from drug-related firearms impairment. Virginia only targets drugs that fall under Schedule I or II and therefore have the highest potential for abuse. Marijuana-only incidents occur in such locations, such as: tabernacle It won’t happen the same way.
New York takes a different approach. It denies firearm licenses to illegal users of controlled substances, as defined by federal law, but allows them through a licensing system that includes the possibility of judicial review. This process could, at least in theory, allow for more individualized evaluations, and individualization has been one of the concerns in animation. tabernacle.
Still other laws are based on acts. Ohio prohibits the possession or use of firearms while under the influence. Such laws are in a stronger position because they target impairment, dangerous combinations, or criminal activity rather than simple drug use.
conclusion
tabernacle A marijuana-only firearms ban is constitutionally questionable. but tabernacle It’s narrow by design. Addiction cases are never solved. It does not rule on cases involving cocaine, methamphetamines, opioids, or other drugs with different risk profiles. It does not preclude restrictions related to carrying while intoxicated, arms trafficking, dangerous conduct, or individual risk findings. Nor would it invalidate the Felony Possession Act, which accounted for more than a third of all Second Amendment challenges in the following year. bridge.
For state courts, the important issues are: tabernacle The question is not whether drug and gun laws will survive as a category; The question is what conduct the law actually covers, what the record actually shows, and whether the government can tie its restrictions to historical tradition better than the U.S. government. tabernacle.
Eric Ruben is a professor of law at SMU Dedman School of Law and a fellow at the Brennan Center.
