The Supreme Court’s Next Second Amendment Case Just Got Even More Interesting

In early March the Supreme Court will hear oral arguments in U.S. v. Hemani, with the federal government defending the prohibition on “unlawful” drug users possessing firearms. Ali Danial Hemani was charged with violating Section 922(g)(3) after an FBI raid on his home turned up firearms and marijuana, with Hemani allegedly acknowledging using marijuana every other day. 

Hemani was convicted in district court, but the Fifth Circuit Court of Appeals overturned that decision after concluding that Section 922(g)(3) is overly broad and a violation of Hemani’s Second Amendment rights. According to the appellate court, while the national tradition of gun regulation might encompass a prohibition on possessing firearms while under the influence, it doesn’t support banning gun possession for anyone who habitually uses intoxicating substances. 

On Friday, Hemani’s team of attorneys filed their response to the government’s brief, arguing that the undefined phrase “unlawful user” is unconstitutionally vague, that the Second Amendment “forecloses” the government’s use of 922(g)(3) against Hemani, and that even if the DOJ’s rights restoration process moves forward, it does nothing to remedy the constitutional defects of the federal statute. 

Hemani’s attorneys include a number of lawyers from the ACLU, as well as longtime Second Amendment litigator Erin Murphy. As you might expect, the brief is solid, and raises several salient points. Hemani isn’t about whether heroin or meth users have the right to possess a firearm. Hemani’s being prosecuted solely for possessing a firearm while regularly using marijuana; a drug that, like it or not, tens of millions of Americans regularly use as well. 

The attorneys note that there is no real definition of “unlawful user,” though the ATF has recently proposed a rule that would require habitual or regular use before running afoul of 922(g)(3). Even if there was a straightforward definition that included habitual use, though, Hemani’s team argues that it still is contrary to the national tradition of gun ownership. 

As the government acknowledges, it “may disarm a group” only “if an analogous group was subject to similar or more severe limits at the founding.” Yet the only potential historical analogues the government offers here—laws that penalized carrying or using a firearm while intoxicated and laws that imposed broader restrictions on “habitual drunkards”—are far afield. 

As for the former, the government concedes that laws restricting the carrying or use of a firearm by people who are presently intoxicated cannot justify banning people who are not presently intoxicated from possessing a firearm. As for the latter, the government’s own evidence confirms that thehistorical 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 beenbroad 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—not to mention tens of millions of Americans today—could have been deprived of the right to keep a firearm in the home for self-defense.

That’s a good point. A habitual drinker may not be a habitual drunkard. Someone who has a glass of red wine every night with dinner, believing its good for their heart, isn’t comparable to someone who drinks a fifth of rotgut vodka or whiskey before noon every day. Of course, under federal law that individual is still free and clear to purchase and possess a firearm, but someone who eats a 10 mg THC gummy to help them sleep at night risks years in prison if they’re caught with a gun as well. 

And it’s not like the Founding generation was blind to the problems of combining alcohol and gunpowder. This isn’t an “unprecedented societal concern” where there’s no change of finding a historical analogue. The problem for the government, contends Hemani’s attorneys, is that the way the Founding generation addressed this problem bears no resemblance at all to Section 922(g(3).

Yet while early legislatures certainly addressed that problem, they did so by prohibiting people from carrying or using a firearm while they were intoxicated. They did not prohibit anyone who regularly consumed alcohol from owning a firearm.

The government thus concedes, as it must, that its “historical precedent for disarming intoxicated individuals” cannot justify this prosecution—or even its construction of §922(g)(3) as reaching all “habitual users” of controlled substances. Historical intoxication laws prohibited only carrying or usingf irearms, not keeping them in the home. And they prohibited that conduct only while someone was intoxicated. The government has never claimed that Mr. Hemani carried or used a firearm while under the influence of a controlled substance. Neither its allegations nor its conception of “habitual user” rests on carrying or using a firearm at all, let alone doing so while intoxicated. The government instead seeks to imprison Mr. Hemani for possessing a handgun that was safely secured when the government confiscated it, solely because he admitted to consuming marijuana a few times a week.

The brief goes on to argue that “[s]tripping people of the right to keep a firearm in the home just because they regularly consume an intoxicating substance is a radical departure from banning carrying firearms while intoxicated,” noting that “Bruen squarely rejected the notion that historical concealed carry laws could support modern laws banning all carry.” 

Similarly, historical laws banning gun possession while intoxicated cannot support modern laws banning gun possession for all users of intoxicating substances, habitually or not. 

Indeed, if those laws could justify stripping Mr. Hemani of his right to keep a handgun safely stored in the home for self-defense, then they could equally justify stripping that rightf rom anyone who frequently has a glass of wine with dinner unless and until they forswear alcohol altogether. That “would eviscerate the general right” the Founders enshrined, which likely explains why even the government is not willing to embrace such an impoverished view of Second Amendment rights.

I’ve seen several Court-watchers predict that the conservative justices will vote to uphold 922(g)(3) as it applies to Hemani, but I’m not in that camp. I don’t think the Court is going to throw out the statute altogether, but they don’t need to do that in order to find in Hemani’s favor. If the Court follows what it said in Rahimi about individuals judged by the courts to be dangerous, then it stands to reason that the majority will adopt something similar to the Eighth Circuit’s holding that 922(g)(3) can only be applied to those individuals who’s drug use and gun possession poses a danger to themselves and others. That would leave the statute intact, while also providing a way for the tens of millions of Americans who use marijuana legally under their state laws to exercise their Second Amendment rights without fear of incarceration if they own a gun as well.