MILESFORTIS

Breaking: SCOTUS Says Prosecution of Gun Owner for Marijuana Use ‘Inconsistent’ With Second Amendment

The Supreme Court’s decision in U.S. v. Hemani was the first opinion released on Thursday morning, and the Court essentially delivered a unanimous victory for Ali Danial Hemani, who was charged with possessing a firearm as an unlawful user of drugs.

The majority opinion, authored by Justice Neil Gorsuch, found that the government failed to justify Section 922(g)(3) as it applies to Mr. Hemani, with the DOJ’s case suffering several major defects.

The government construes §922(g)(3) to automatically ban an individual from possessing a gun from the moment he becomes an unlawful user of any controlled substance and remains in effect until he ceases being one, regardless of what controlled substance an individual uses, in what amounts, whether his drug use has ever made him a danger to himself or others, why he keeps a gun, or how safely he does so.

The government analogizes its construction of §922(g)(3) to what it calls “habitual drunkard” laws, which it submits enjoy deep roots in the country’s history and are “relevantly similar” to the regulation it wishes to enforce.

These habitual drunkard laws fall into three general categories: vagrancy laws that allowed habitual drunkards to be confined in workhouses or jailed; civil-commitment statutes that allowed courts to appoint guardians for habitual drunkards or authorized their commitment to asylums; and surety laws under which judicial officers could compel habitual drunkards to post surety bonds to ensure their good behavior.

The government’s analogy fails on every metric it invites the Court to consider. Taken cumulatively, these problems prove fatal to the government’s prosecution of Mr. Hemani.

Gorsuch and the other justices concluded that the habitual drunkard laws are not analogous to the modern prohibition on gun possession by unlawful drug users, for several reasons; “drunkards” are not the same as every kind of drug user, the civil commitment and vagrancy laws were generally designed to protect drunkards from themselves and not the public from drunkards, and “the way habitual drunkard statutes worked in the past differs significantly from how §922(g)(3)’s unlawful user provision works today.”

There are reasons to doubt that the government has established §922(g)(3) even serves the purpose the government claims, of disarming categorically violent and unusually dangerous persons.

Section 922(g)(3)’s reliance on the Controlled Substances Act—a statute adopted to protect “the health and general welfare of the American people,” 21 U. S. C. §801(2), and under which drugs can be added to schedules for reasons having little or nothing to do with their potential to induce violence—makes it far from obvious that 18 U. S. C.§922(g)(3) confines its reach to those who are categorically and unusually dangerous.

Additionally, the government’s own regulatory actions undercut its position: the Department of Justice has directed federal prosecutors to curtail enforcement efforts against marijuana users, most States have legalized marijuana use to some degree, and the government recently moved some marijuana products from Schedule I to Schedule III, 91 Fed. Reg. 22714.

Affording the government “broad power to designate any group as dangerous and thereby disqualify its members from having a gun” would risk allowing it to “quickly swallow” the Second Amendment.

Gorsuch notes, however, that today’s decision is a narrow one, and that it does not address efforts “to ban addicts or those presently intoxicated from possessing a firearm,” and “other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms.

Section 922(g)(1)’s provision disarming individuals convicted of felonies is also left untouched by today’s opinion, as is the question about whether the government could bring a prosecution under §922(g)(3) “accompanied by individualized proof that the defendant’s drug use renders him a danger to himself or others, or proof that a certain drug always renders its users dangerous.”

Still, the decision isn’t so narrow as to only apply to Ali Hemani. As Gorsuch writes, marijuana use has become far more common than it was just a few decades ago, in part because the federal government has moved to stop prosecuting individuals for personal amounts of cannabis and more than half the country has legalized its use for medical or recreational purposes.

“Whatever one thinks of these developments, the federal government has not just tolerated them;it helped fuel them,” writes Gorsuch. “All of which leaves it awkwardly positioned to suggest that the millions of Americans who now regularly use marijuana are categorically and unusually dangerous.”

The government maintains that it may automatically strip Mr. Hemani of his Second Amendment right to possess a firearm because he uses marijuana a few times a week.

More than that, because he possessed a gun despite this prohibition, the government insists it may imprison him for up to 15 years and disarm him for life.

According to the government, none of this turns on how much marijuana Mr.Hemani uses or what effect it has on him. It makes no difference either if he keeps a firearm only in his home for self defense, never misuses a gun while intoxicated, and never poses a danger to himself or others as a result of his marijuana use.

The only thing the government must show, it says, is that an individual like Mr. Hemani regularly uses any amount of any controlled substance.

To square that expansive theory with the Second Amendment, the government invites us to draw an analogy between its present regulation and historical laws addressing habitual drunkards.

Those laws, the government contends, demonstrate a tradition of firearm regulation consistent with its effort to disarm any regular user of any controlled substance without any further showing.

But the government’s analogy fails under every measure it asks us to consider: The historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways.

And faced with all these shortcomings in the government’s submission, we cannot say it has carried its conceded burden of showing its prosecution of Mr. Hemani complies with the Second Amendment. The judgment of the Fifth Circuit is affirmed.

Today’s decision doesn’t render Section 922(g(3) moot, but it does mean that individuals cannot lose their Second Amendment rights solely because they regularly use marijuana; a decision that will have an impact on millions of Americans, including those who have previously had to choose between possessing a medical marijuana card and possessing a firearm.

I’m not particularly shocked by the decision, but I am surprised that every justice agrees, even if a couple of them wrote separate concurrences instead of joining the majority opinion. I figured Alito and Roberts might not go along with the majority based on their questions during oral arguments, but Roberts joined the majority opinion and Alito wrote a concurrence in which he was joined by Justice Elena Kagan.

We’ll have more on those concurrences later today, but for now gun owners can celebrate a significant win for the right to keep and bear arms. We still have one more Second Amendment case waiting in the wings in Wolford v. Lopez, and that decision could be released as early as next Tuesday.