The Court's Next Big Gun Case is not Really a Gun Case at All
On March 2, the Court will hear oral argument in United States v. Hemani, which raises the question whether a federal statute prohibiting the possession of firearms by any person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment as applied to the defendant in the case. This federal law was one of the charges that formed the basis for Hunter Biden's conviction in 2024. The defendant in Hermani is an admitted drug dealer who uses marijuana about every other day. The FBI obtained a warrant to search his home where the agents found a Glock 9mm pistol, 60 grams of marijuana, and 4.7 grams of cocaine. The prosecution's case rested solely on the defendant's habitual use of marijuana.
The Fifth Circuit Court of Appeals, otherwise known as the Court of Unlimited Gun Rights, summarily affirmed a lower court decision (relying on a previous Fifth Circuit case) that held that this law can only be constitutionally applied to people who possessed a gun while using drugs at the same time. Both sides agree that the law can be constitutionally applied in that circumstance. There is no evidence in this case that the defendant used a gun while high.
The parties as well as numerous amicus briefs devote most of their time to the history and tradition test set forth in the infamous Bruen case. That test asks whether the law is consistent with the history and tradition of gun regulation in the United States. Policy considerations are theoretically irrelevant. Thus, the government argues that "history and tradition establish that the Second Amendment allows Congress to temporarily restrict the possession of firearms by categories of persons who pose a special danger of misuse, including habitual drug users." The defendant counters that "there is no historical tradition in this Nation of stripping anyone who consumes an intoxicant a few times a week of the right to keep a firearm in the home for self-defense."
Under the Bruen decision, for the government to prevail it must identify constitutionally similar laws (whatever that means) from either 1788 or 1868 (or maybe even sometime in between). There is no debate that during the Founding era there were laws prohibiting "drunkards" from owning firearms. But the defendant argues the following:
The government’s own evidence confirms that the historical conception of “habitual drunkard” did not cover anyone who consumed any quantity of alcohol “habitually,” but instead covered only those who habitually abused alcohol to the point of frequent intoxication. Indeed, if “habitual drunkard” had been broad enough to encompass anyone who drank beer, wine, or spirits with meals a few days a week, then by the government’s logic much of the Founding generation ... could have been deprived of the right to keep a firearm in the home for self-defense.
I have previously written at length about the complete insanity of Bruen's history and tradition test. Modern problems require modern solutions, and whether similar societal issues regarding gun regulation led legislatures to address those questions centuries ago should only be a small part of the analysis, not the exclusive method for judges deciding the validity of contemporary gun laws. In this case, however, it should not matter because the conviction should not be upheld for reasons unrelated to the proper scope of the Second Amendment.
Several amicus briefs, including one filed by Professor Joel Johnson, argue that the Court should avoid the constitutional issues in the case because the federal statute is too vague and imprecise to apprise people whether their conduct is legal or not. The Supreme Court has never interpreted the phrase "unlawful user," and the Executive Branch recently changed its interpretation of the law. According to Professor Johnson, "the government’s shifting attempts to construe 'unlawful user'—ranging from a sweeping ban based on a single use in the past year to a newly minted 'habitual-user' test—demonstrate the inherent indeterminacy of the statutory text. Neither construction is rooted in clear congressional authorization."
The ACLU supports Johnson's position:
What is an “unlawful user”? The government says it’s a “habitual user.” But the word “habitual” never appears in the statute, and it is unclear what either of these terms even means. Do they mean someone who smoked marijuana last weekend? Six months ago? Consider a medical marijuana patient with a gun locked in a safe? Or a veteran who uses marijuana to manage chronic pain? Someone who smokes four times a month? Or does it have to be two times a week or five days a week? Vague statutes like 922(g)(3) invite arbitrary and discriminatory enforcement.
My colleague Andrew Willinger, who formerly ran Duke's Center for Firearms Law, wrote the following about this case:
Given the lack of detail in the statute about what Congress intended by the words “unlawful user,” the Court could certainly decide the case on statutory grounds. And, as a matter of constitutional avoidance, it should do so rather than reach the Second Amendment issue. Perhaps, as Hemani urges, proof of simultaneous drug use and gun possession is required. If so, the Court could reach that outcome by holding that “unlawful user” refers to active use at the time of gun possession. Similarly, the Court could reject Hemani’s arguments by clarifying that the statute requires only evidence of regular use around the time of gun possession. But these are both statutory holdings that avoid the lurking constitutional questions and (correctly) assume that Congress in 1968 did not enact a statute exceeding the bounds of the Second Amendment.
Professors Johnson and Willinger, and the ACLU are undoubtedly correct. There is a centuries-old canon of constitutional avoidance that the Court often trots out based on the obviously correct idea that, as Justice Brandeis once wrote and Willinger quotes:
The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
This canon should be applied by the Court in this case. I fear, however, that the Roberts Court's desire to arm the Second Amendment with as much force as possible (at least in non-presidential election years) will lead the conservative justices down the path of unjustified judicial aggression yet again. We will find out sometime in June.
-- Eric Segall