During oral argument on Monday, a majority of the justices appeared likely to strike down a federal law prohibiting an “unlawful user” of marijuana from possessing a firearm — or, at least, they appeared to believe it could not be applied to Ali Danial Hemani, a criminal defendant who uses marijuana a few times a week.
That said, the justices who appeared likely to side with Hemani seemed to split into three camps during Monday’s argument in United States v. Hemani, with one camp suggesting that the Court’s entire framework for deciding Second Amendment cases makes no sense.
For nearly four years, federal courts have struggled to apply the Supreme Court’s previous decision in New York State Rifle & Pistol Association v. Bruen (2022), which requires courts to ask whether a modern-day gun law is sufficiently similar to a gun regulation that existed when the Constitution was framed. The Court has struggled to explain just how similar the two laws must be, and numerous judges have complained that they do not understand how to apply Bruen.
One of those judges is Justice Ketanji Brown Jackson who, along with Justice Sonia Sotomayor, both suggested that Congress, and not the Court, should play the primary role in determining which drugs are dangerous enough to warrant disarming their users. Although, Sotomayor also suggested that Hemani should prevail, because Congress never actually determined that marijuana is sufficiently dangerous. On balance, both Sotomayor and Jackson appear likely to side with Hemani.
Justice Amy Coney Barrett, meanwhile, floated a somewhat different approach. In United States v. Rahimi (2024), the Court indicated that sufficiently dangerous individuals may be disarmed; the Rahimi case involved an almost cartoonishly violent criminal defendant accused of committing six separate shooting crimes. Barrett would give the courts, and not Congress, the dominant role in deciding who is too dangerous to own a gun.
Barrett, along with Justice Elena Kagan, suggested that the Hemani case should turn on whether marijuana actually makes users dangerous enough to endanger themselves or others if armed. Many of Barrett’s comments at oral argument suggested that she thought it would be absurd to allow the government to disarm individuals who used drugs such as Ambien, Xanax, or even Robitussin, which can be used illegally but are not generally understood to cause violence.
Finally, Justice Neil Gorsuch offered a third rationale for siding with Hemani. Of all the justices, Gorsuch appeared most committed to Bruen’s historical framework. But he questioned whether any historical bans on gun ownership by drug users are sufficiently analogous to the law at issue in Hemani.
In defending the law, the Trump administration pointed to founding era laws sanctioning “habitual drunkards.” But, as Gorsuch and several other justices pointed out, these historical laws typically applied to people so frequently and severely intoxicated that they disrupted public order and could not manage their affairs.
Early Americans also drank a great deal more than modern Americans, Gorsuch pointed out, claiming that President James Madison drank a tankard of whiskey a day. So, it would be odd to allow the government to disarm someone who smokes a joint three or four times a week, when founding-era luminaries were far more frequently under the influence of alcohol.
All of this suggests Hemani could produce a splintered outcome, where various camps of justices rely on different rationales to rule in Hemani’s favor. But most of the justices did appear skeptical that recreational marijuana users could be disarmed, absent evidence that their use is so extreme as to make them dangerous.
The Court’s Second Amendment precedents are a mess
It’s not surprising that the justices cannot agree on how to analyze Second Amendment cases, even when most of them agree on the proper result. In a concurring opinion in Rahimi, Jackson quoted a dozen judges who complained that the Bruen framework is unworkable and does not produce consistent results.
Typically, judges do not bar the government from regulating simply because there were no similar laws in the 18th century. There obviously were no laws regulating automobiles in 1789, for example, but Congress may still regulate cars.
For these and similar reasons, the Court’s three Democrats have historically been skeptical of Bruen, and Sotomayor and Jackson made that skepticism clear at Monday’s oral argument. That said, if the justices want to resolve this case without reopening broader disagreements about Second Amendment methodology, both Sotomayor and Jackson acknowledged that Gorsuch’s preferred approach would be consistent with current precedents.
Jackson, for example, noted at one point that, at the time of the founding, being an “habitual user” of alcohol meant “you’re falling down drunk in the street.” And the government does not allege that Hemani’s marijuana use impairs him in this way.
Kagan and Barrett, meanwhile, focused their questions on which drugs actually make someone dangerous enough to justify disarmament. While Barrett’s questions focused on drugs like Xanax or Robitussin that are unlikely to transform a user into a violent criminal, Kagan asked several questions about a hallucinogen that left someone so detached from reality that they obviously should not have a gun.
At one point, Kagan asked Murphy directly to propose a framework that would allow marijuana users like Hemani to keep their guns but would still allow the government to disarm people who use very dangerous drugs. In response, Murphy said that Congress can take into account the dangerousness of a drug when deciding which drug users to disarm, but she faulted Congress for not determining whether a heavy marijuana user could actually become dangerous.
If the Court does rule in favor of Hemani, the decision is unlikely to be unanimous. Chief Justice John Roberts appeared skeptical that courts should assess whether individual drug users are, in fact, dangerous enough to be disarmed. And Justice Samuel Alito argued that there should be more severe restrictions on drugs than the United States has historically applied to alcohol, given how deeply embedded alcohol is in Western culture.
But it appears more likely than not that Hemani will prevail and that most marijuana users will gain the right to own a gun, even if the justices still cannot figure out what to do with Bruen.
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