Getty Images To anyone who has been following the Supreme Court’s embrace of gun rights, its unanimous June 18 decision invalidating a federal law designed to keep guns out of the hands of drug users would not have come as a surprise. As it has often done, the court bent over backward to treat the Second Amendment as the crucial bulwark of American liberty.
But to do so, it had to embrace a position on drugs that is not often paired with gun rights. Its decision in U.S. v. Hemani brought marijuana use into the constitutional mainstream and offered a picture of American life replete with drug use and alcohol consumption.
Its decision also offered another glimpse into the morass created by the high court’s originalist approach to the Second Amendment — and the limits of that enterprise.
Justices Ketanji Brown Jackson and Sonia Sotomayor, while agreeing that the decision in Hemani correctly applied existing Supreme Court precedent, were right to call on their colleagues to return interpretation of the Second Amendment to the mainstream of modern constitutional readings. The statute in question made it a crime to “knowingly possess” a gun while being “an ‘unlawful user of or addicted to any controlled substance.'” Ali Hemani ran afoul of that law in an incidental way.
A dual citizen of Pakistan and the U.S., he was suspected of involvement in terrorist activities. The government obtained a warrant to search his home and those of family members. During their search, as the court notes, Hemani “surrendered a gun” and revealed that he used marijuana “‘about every other day.'”
The government prosecuted him. But as Justice Neil Gorsuch noted in his majority opinion, it neither accused him of being a drug addict nor contended that “his drug use had ever led him to pose a danger to himself or others.”
A federal district found Hemani’s Second Amendment claim persuasive, as did the Fifth Circuit Court of Appeals. The government appealed, and last March, the pro-gun-rights Trump administration defended the law before the Supreme Court.
In its appeal, the administration made its pro-gun rights position clear. “The Second Amendment’s right to keep and bear arms,” it said, “is a fundamental right that is essential to ordered liberty. Unjustifiable restrictions on that right present a grave threat to Americans’ most cherished freedoms.” Yet the government urged the court to find that “there are compelling legal and historical reasons to [disqualify] only habitual users of illegal drugs from possessing firearms.”
The administration said that the restriction on gun ownership by drug users “provides a modest, modern analogue of much harsher founding-era restrictions on habitual drunkards, and so it stands solidly within our Nation’s history and tradition of regulation.” But in a departure from its turn to history, it added that “habitual illegal drug users with firearms present unique dangers to society — especially because they pose a grave risk of armed, hostile encounters with police officers while impaired.”
Scrambling the usual ideological alliances, a group of seven liberal professors supported the administration, citing historical examples highlighting “the long-standing principle that Congress may temporarily disarm those who threaten the public peace or physical safety of others.”
On the other side, the Liberty Justice Center, a conservative and libertarian public-interest law firm, filed a brief urging the court to rule in Hemani’s favor. It said, “There is no historical analogue for the permanent disarmament of sober citizens based on their status as substance users.”
That view prevailed at the Supreme Court.
Gorsuch reminded his readers that under the high court’s Second Amendment jurisprudence, for a gun regulation to pass muster, the government must show that “the contemporary regulation is ‘relevantly similar’ to ones ‘well established in the nation’s history.'” But even Gorsuch didn’t just stick to history. That’s why he also faulted the law for being overbroad. In his view, the government had failed to show that “millions of Americans who now regularly use marijuana are categorically and unusually dangerous.”
Gorsuch also conceded that marijuana is now more popular than alcohol as Americans’ stimulant of choice.
Jackson was less interested in that issue than in calling on her colleagues to abandon the approach that now “Imposes on judges the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer ‘contested historical questions’ and ‘apply … those answers to resolve contemporary problems.'” She called on her colleagues to weigh “the strength of the government’s justification for the firearm restriction against the burden that restriction imposed on 2nd Amendment rights.”
In the end, the Supreme Court’s decision is a boon for drug users and gun owners, but not to those who want the Constitution to be as relevant today as it was when it was written more than two centuries ago. It reveals the lengths to which the court will go to treat the Second Amendment as sacred, tying constitutional interpretation in knots to achieve that result.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
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