On June 18, the U.S. Supreme Court issued an opinion which unanimously narrowed the scope of 18 U.S.C. § 922(g)(3), which bans firearm acquisition or possession by anyone who is an “unlawful user” of a federally “controlled substance.” The case, U.S. v. Hemani, concerned an individual who was found to have an accessible firearm in his home at the same time he admitted to federal agents that he used marijuana approximately every other day. The conviction could have subjected Hemani to up to 15 years in federal prison.
Justice Neil M. Gorsuch wrote the opinion for a seven-justice majority (Justice Alito, joined by Justice Kagan, wrote a concurrence agreeing in the judgment but not its reasoning). The majority opinion applied the two-step analysis set forth in New York State Rifle & Pistol Association v. Bruen. Step one of the analysis asks, “whether the [Second] Amendment’s terms cover the conduct in question.” If so, “the Constitution ‘presumptively’ protects it.” The government conceded that was true of the unlawful user provision because it “bans a class of people including Mr. Hemani from possessing essentially any firearm for any purpose.”
That invoked step two, in which “the government then bears the burden of showing its regulatory efforts are ‘consistent with the Nation’s historical tradition of firearm regulation.’” To meet its burden, the Court said the government could “‘reason[n] by analogy,’ showing that its contemporary regulation is ‘relevantly similar’ to ones ‘well-established’ in the Nation’s history.” In this case, that meant the government would have to show the “why” and the “how” of its proffered historical analogues were similar in purpose and operation to the modern ban on “unlawful users.”
The government attempted to meet this burden by pointing to historical laws governing “habitual drunkards.” None of these laws operated specifically by disarming the affected individual. Rather, one category allowed “vagrants” (including “habitual drunkards”) to be confined to a workhouse or jailed. Second were laws that allowed courts to assign guardians for habitual drunkards or to commit them to asylums.
According to the government, the “why” of these laws was to target those who regularly used intoxicants and to protect the public from “‘unusually dangerous individuals’ who commit ‘violent crimes.’” Meanwhile, the “how” of the laws was to allow the government “to detain people in places where they could not bear arms.”
The Court unanimously rejected this analogy. The habitual drunkard laws, it wrote, “targeted different kinds of people, did so for different purposes, and operated in different ways.”
It targeted different kinds of people because a “habitual drunkard” at the time of the founding wasn’t just someone who regularly used alcohol, even to excess. Rather, the term applied only to the extent the use “rendered them practically incapacitated and incapable of managing their affairs” on a comprehensive and ongoing basis. This did not match the burden of § 922(g)(3), which merely required the government to show the individual used any controlled substance on a regular basis for anything other than a “prescribed purpose.”
Nor, the Court continued, did habitual drunkard laws focus on individuals because they were categorically dangerous or posed a threat to public safety. “By their own terms, laws like these did not seek to protect the public from violence so much as to protect habitual drunkards from themselves and their families from financial devastation,” the Court explained.
The Court also determined the “how” question resulted in a mismatch. “The historical laws the government identifies usually provided some form of process before an individual lost any of his liberties, even temporarily,” the Court observed, while “[n]one of that holds true for §922(g)(3).” That is, “the statute automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user and until he ends his drug use—all without any pre-deprivation process.”
The Court also faulted the statute for treating users of the Controlled Substances Act’s five schedules of drugs as presenting a per se risk of violence, when the point of those schedules was not to ban drugs that necessarily induce violent behavior but “to protect ‘the health and general welfare of the American people.’”
The opinion stated:
Without question, some unlawful users of controlled substances can pose a risk of violence. But, by defining its scope through the CSA—a statute animated by a variety of other concerns—it is far from obvious that 18 U. S. C. §922(g)(3) confines its reach to those who are categorically and unusually dangerous.
This was especially so for marijuana, which in recent years been undergoing a national re-evaluation, with some 40 states allowing for legal use in at least some cases. Moreover, the U.S. government itself downgraded marijuana during the pendency of the case from Schedule I –"reserved for drugs with ‘a high potential for abuse’ with ‘no currently accepted medical use’” – to Schedule III, which “applies to drugs with a lower potential for dependence and abuse and for which a ‘currently accepted medical use’ exists[.]”
The Hemani opinion showed the Supreme Court refining its “prohibited person” jurisprudence after the 2024 case of U.S. v. Rahimi. There, the Court held: “An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”
Hemani strongly reinforced the Court’s determination that categorical prohibitions on Second Amendment conduct must target legitimate risks to public safety and must have a strong grounding in the historical record. Prohibitions that sweep too broadly or are too far afield of founding era antecedents are now highly suspect and particularly vulnerable to similar “as-applied” challenges.
While not as broadly applicable as certain prior Supreme Court decisions on the Second Amendment, Hemani represents a critical step in the development of the right to keep and bear arms. The case featured all nine justices treating the Second Amendment as a true civil right by faithfully applying it even in a situation where the government painted the defendant in an unflattering light and even where the individual was admittedly a lawbreaker.
As the Court’s decision shows, constitutional rights are not special privileges the government gets to bestow on those it considers model citizens. Rather, they are active and enduring constraints on the authority the government wields over the people.
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