Rare Unanimity of Result in a SCOTUS Second Amendment Case
Today's Supreme Court decision in United States v. Hemani is interesting for multiple reasons.
(1) It is the first Second Amendment case on the Court's plenary docket in which the judgment was unanimous. Caetano v. Massachusetts was unanimous but was a per curiam GVR (grant, vacate, and remand), not a case in which there was full briefing and oral argument.
(2) The unanimity is readily explained: at least as applied to the facts of this case, the underlying law at issue in Hemani is almost as stupid as the Massachusetts Supreme Judicial Court's decision in Caetano. That court said that stun guns are not protected "arms" within the meaning of the Second Amendment based on reasons that pretty obviously contradicted the mode of analysis required by Dist. of Columbia v. Heller. The law at issue in Hemani, 18 U.S.C. § 922(g)(3), criminalizes firearm possession by anyone "who is an unlawful user of or addicted to any controlled substance." Hemani, fully cooperating with federal authorities who (apparently mistakenly) suspected him of terrorism-related activities, surrendered an otherwise lawfully possessed firearm and admitted to using marijuana roughly every other day. That was the basis for the charge at issue in the Supreme Court: weed use.
(3) The Court's unanimous ruling in Hemani's favor is just. I think that the Supreme Court's entire Second Amendment jurisprudence dating to Heller in 2008 was a mistake, but once one concludes that there is a constitutional right to possess firearms, it makes no sense to single out every-other-day marijuana users as ineligible to exercise it. Indeed, even on my view that the Second Amendment protects no individual right to firearm possession, it wouldn't make sense to criminalize it for people who use weed every other day but not for otherwise identically situated people who don't.
(4) To be sure, if Heller and all the subsequent cases upholding Second Amendment rights are wrongly decided (as I believe they are), someone like Hemani would probably lose a constitutional challenge, for then 18 U.S.C. § 922(g)(3) would be subject only to rational basis scrutiny. Is it rational to think that someone who is an unlawful user of any controlled substance would be less able to possess firearms responsibly than someone is not? At least barely so, I suppose. There is at least some evidence to support an association between long-term marijuana use and a propensity for violence. And even if there were not, that wouldn't matter under the traditional rational basis test, which asks only whether a rational legislator could think that the law is justified.
(5) Notably, none of the justices in Hemani took the route I've just described. Justice Jackson, joined by Justice Sotomayor, came closest. She joined Justice Gorsuch's majority opinion in full but wrote a concurrence in which she explained that she continues to think the historical-analogy approach the Court adopted in NYS Rifle & Pistol Assn, Inc. v. Bruen was mistaken. In its place, Justice Jackson does not propose reversing Heller; rather, she argues (as she did in her concurrence in United States v. Rahimi) for the same kind of means-ends balancing that the Court uses to assess restrictions on other constitutional rights.
Interestingly, Justice Jackson does not say whether the means-ends scrutiny she favors would be strict, intermediate, or otherwise heightened. She simply cites cases applying such standards. Also notably, Justice Jackson includes a footnote explaining that she is not considering how the means-ends balancing she favors would come out--although it is difficult to imagine that the application of any kind of heightened scrutiny would result in upholding 18 U.S.C. § 922(g)(3) where the underlying trigger is every-other-day marijuana use. Wondering why Justices Jackson and Sotomayor nonetheless join the majority opinion if they're not saying what the right outcome is under their preferred test? It's because the Court correctly applies Bruen, they say. Presumably it's also because the cert petition did not ask the Court to overrule Bruen.
(6) Meanwhile, Justice Thomas offers a very different basis for reconsidering (some of) the Court's cases. He would provide a further ground for challenging federal laws restricting firearms possession. Justice Thomas contends that §922(g) is unconstitutional as beyond the power of Congress. In his view, the Commerce Clause does not authorize regulation of firearms possession merely on the ground that the firearm in question has previously traveled in interstate commerce. He has gestured at this proposition in some prior cases but mostly by claiming that the Court's Commerce Clause jurisprudence extends congressional power beyond the provision's original meaning. In Hemani, Justice Thomas briefly makes that claim but also contends that 18 U.S.C. § 922 is invalid even under the Court's existing cases. Why? He says that the inclusion of a jurisdictional hook--i.e., a statutory requirement that the particular object of regulation must have moved across state lines at some point in the past--should not suffice to render a statute constitutionally valid; otherwise, the Commerce Clause is no limit at all.
There's a sense in which that's right. Suppose Congress enacted a law that allowed regulation of X whenever the person doing X has worn clothes or eaten food that traveled in interstate commerce at some point in the past. A sufficiently capacious jurisdictional hook would indeed allow Congress to regulate anything. However, I think Justice Thomas is mistaken in suggesting that the Court's own precedents disavow using interstate movement of the particular object of regulation as a sufficient hook. I take the fact that no other justice joined Justice Thomas's concurrence as confirmation that the rest of the Court reads its Commerce Clause precedents as I do.
(7) Yet another concurrence, this one only in the judgment, is by Justice Alito, joined by Justice Kagan. It's interesting in two respects. First, it's notable that Justice Kagan joins Justice Alito but not Justice Jackson, perhaps indicating that she has accepted (or at least resigned herself to) the Bruen test going forward.
Second, it's not entirely clear why Justices Alito and Kagan didn't join the majority opinion. Justice Alito says he "would affirm on a different ground from those on which the majority relies." Yet both the majority and the Alito concurrence in the judgment rely on essentially the same ground: The government pointed to Founding-era laws disarming "habitual drunkards," but that term, understood in historical context, meant people who drank so much that they were effectively incapacitated most of the time; regular drinkers, even regular heavy drinkers, were not disarmed, and they are much more analogous to an every-other-day marijuana user like Hemani. Justice Gorsuch goes into much more detail in making this argument, but it doesn't appear to be broader than or different from the ground on which Justices Alito and Kagan would have relied. Whether a difference that makes a difference emerges in a future case remains to be seen.
-- Michael C. Dorf