Guns, Drugs, and Supreme Court Insanity
Yesterday, the Supreme Court heard oral argument in United States v. Hemani, which raises the issue whether a federal law prohibiting the possession of guns by a person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment. The defendant in Hermani admitted to using marijuana about every other day. The FBI searched his home and 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, which is how the government currently defines “unlawful user.”
As I previously
wrote here, this case should not be decided under the Second Amendment but on the
basis that the government’s definition of “unlawful user” is too vague to give
fair notice as to who is and who is not subject to the law. But, alas, the
Roberts Court seems poised to decide this case
under the infamous Bruen test, which allows the state and federal governments
to regulate guns only if they can point to similar laws enacted at the Founding or maybe in
1868. The government’s asserted modern policy reasons are, in
theory anyway, off limits.
This bizarre test led to an insane oral argument with the Justices going down rabbit
holes to ascertain whether today’s law was similar to laws banning “drunkards”
from owning guns in 1791. I am quite sure there has never been an oral argument so laden with questions
about just about every drug you or I have ever heard about or so riddled with
absurd historical inquiries. This is a blog post, not a law review article, so I
cannot do total justice to the insanity but here is a sampling.
Justice
Alito felt obligated to go through the history of illegal drugs in this
country:
JUSTICE ALITO; Heroin was invented in 1874. Cocaine, 1855. Methamphetamine, 1893. Fentanyl, 1959. Marijuana existed, but my understanding, yeah, hemp was grown for industrial purposes. My understanding is that it was not consumed to any degree by people in the United States until at least the beginning of the 20th century. Is that consistent with your understanding of the situation?
MS. HARRIS: That is correct.
JUSTICE ALITO: So, we don't know what the founders -- what those who adopted the
First Amendment -- or, I'm sorry, the Second Amendment or the Fourteenth Amendment thought about illegal drug use per se?
MS. HARRIS: Correct.
JUSTICE ALITO: There's talk --there's a lot of talk about alcohol. Do you think that the regulation of alcohol is exactly the same as the regulation of illegal drugs? Isn't -- doesn't alcohol -- isn't alcohol --doesn't it have a different place in the history and culture of the west? Aren't there a lot of people who consume alcohol in moderation and have done so for centuries for purposes -- primarily for purposes other than the effect that it has on one's brain?
Meanwhile,
Justice Gorsuch, wrestling with the definition of “drunkard” at the founding, took us on this tour of some of the Founding Fathers’ drinking habits:
JUSTICE GORSUCH: We have to remember the founding era… John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn't much a user of alcohol, he only had three or four glasses of wine a night, okay? Are they all habitual drunkards who would be properly disarmed for life under your theory?
Justice
Barrett was much more concerned with founding era equivalents to prescription
drugs used by people today who do not possess the drugs with a lawful
prescription:
JUSTICE BARRETT: When I look at these drugs, however, I mean, Robitussin, Ambien, Tylenol with codeine, testosterone, Adderall, I mean, none of those drugs strike me -- I mean, I --I'm not a pharmacologist, but none of those drugs strike me as drugs for which it is obvious that a risk of violence would ensue. Is it your position that all of the drugs that I just mentioned would pose a risk of violence and dangerous behavior . . . ?
So, let's assume that someone takes their spouse's Ambien prescription. The spouse takes it too lawfully, with the prescription, but then, you know, you take it unlawfully because you break into your spouse's Ambien jar….
Is it the government's position that if I unlawfully use Ambien or I unlawfully use Xanax, then I become dangerous? What is the government's evidence that using marijuana a couple times a week makes someone dangerous?
Meanwhile,
Justice Kavanaugh (would he be a modern day “drunkard”?) was more concerned with
cars though he was less than clear how this was relevant under the history-only
Bruen test:
JUSTICE KAVANAUGH: Do you think the government could prohibit a habitual drug user
from owning a car?
And so it
went until finally Justices Jackson and Sotomayor injected some sanity into the
argument. They were confused why the other justices were asking questions about
the government’s reasons for the law given that the Bruen test specifically rejects such an analysis:
JUSTICE SOTOMAYOR: That is precisely what the Bruen test prohibits, that we don't credit the judgments of the modern legislature about who is dangerous and who needs to be disarmed as a result. The entire point, I thought, of the Bruen test was to say that the only thing the modern legislature gets to do is follow the judgments of the founding-era legislature around who was dangerous and who gets to be disarmed.
JUSTICE JACKSON: So, I guess maybe I just don't understand how the tests work
anymore. Maybe it's post-Rahimi, I'm not sure, but it seems like you're asking us to trust
Congress's legislative judgment here that unlawful drug users pose a heightened risk of misuse but that this test really doesn't provide us a way to check that in any meaningful sense. And I guess the benefit of the pre-Bruen kind of means-end scrutiny is that you got to the bottom of whether what Congress was actually doing here was legitimate and whether the means that they had chosen, the disarmament of this person, was tailored, sufficiently tailored, to that aim. And what's worrying me is that the current Bruen test modified by Rahimi or what not is not allowing us to assess that, and that's really the problem in this situation…that you're being asked seem to all relate to people's concern that even if we all agree that Congress can legislate to disarm people who are dangerous as a general matter, that this person in this circumstance really is not dangerous. And -- and your test doesn't seem to get to allow us the way we're talking about it to assess that. Can you help me with how the means-end scrutiny analysis is being folded into Bruen?
And there
you have it. Judges trying to decide hard constitutional law cases without balancing
the government’s interests against the right asserted turns such cases into an
exercise into historical fantasy, bizarre analogues, and a complete lack of
transparency by the Court about what factors actually drive its Second
Amendment decisions.
The
government obviously should be able to take dangerous killing machines away
from people who unlawfully use illegal drugs as long as
the government defines the people subject to the law with the requisite
clarity. I am skeptical that the term “habitual” drug user provides that clarity, though
I may be wrong. What the justices should not care about is how many drinks the founding
fathers had for dinner or when and where heroin was first made illegal or what "drunkard" actually meant in 1791.
As I’ve written
before, Bruen is constitutional insanity, and the argument on Monday
proved my point beyond any and all reasonable doubt.