On Thursday, President Donald Trump issued an executive order that rescheduled marijuana from a Schedule 1 drug to a Schedule 3 drug. What that means is that while it’s still a controlled substance, it’s medically legal in all states that haven’t somehow expressly banned it. Because of that, anyone who gets a prescription for the drug isn’t an unlawful user, and thus can’t really be arrested for owning a gun while using it under a doctor’s orders.
This is very good news for a whole lot of people. While I get that not everyone is cool with marijuana use, and some of the reasons why are very solid, it’s actually useful for treating a number of conditions. However, it’s not helpful if someone can get jammed up for also owning a gun.
That’s no longer a concern.
However, there’s still some confusion about marijuana and gun laws, and the Supreme Court will be hearing a case that deals with some of those. Here are some ways they might view the case.
To decide where to draw the line on unlawful-user status under the statute, the court could rely on various tools of statutory construction. One candidate is the rule of lenity, which tells courts to construe unclear language in a criminal statute in favor of the defendant. Historically, lenity played a central role in construing criminal statutes. Yet, despite Justice Neil Gorsuch’s campaign for its restoration, the modern court has treated lenity as a rule of last resort that is applicable only when “grievous ambiguity or uncertainty” remains after all other tools of interpretation have been exhausted. The result is predictable: the court rarely, if ever, relies on lenity as a firm basis for narrowly construing criminal statutes.
When the court does narrowly construe criminal statutes, it tends to do so without relying on any generic rule at all, opting instead for statute-specific ordinary-meaning analysis and intuition – what I have elsewhere called “ad hoc constructions.” This approach produces narrow results in the short term but instability in the long term, leaving no enduring principle to guide how Congress, lower courts, and prosecutors should apply other criminal statutes with indeterminate language.
Hemani offers the court an opportunity to use a more principled framework. At least two good options are available.
The first is to revitalize lenity itself – by embracing what I have called “major-questions lenity.” In the context of administrative law, the court uses a rule known as the major questions doctrine to stop federal agencies from making massive economic or political changes without clear permission from Congress. The logic is that Congress – not unelected bureaucrats – must make the big policy choices. The same logic should apply to criminal law. If Congress wants to turn millions of Americans into felons, it needs to say so clearly.
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If the court isn’t interested in reviving lenity, a second route is available. The justices could apply what I have called “vagueness avoidance,” a distinct tool of construction constraining penal statutes that pose constitutional vagueness concerns – statutes like Section 922(g)(3).
Vague language in criminal statutes presents constitutional concerns under what is known as the void-for-vagueness doctrine because it doesn’t adequately define the line between lawful and unlawful conduct. That undermines due process and the separation of powers by effectively delegating the legislative task of crime definition to prosecutors, thereby inviting arbitrary enforcement and failing to provide sufficient notice.
I’m not going to get into the whole lenity question because, as someone who isn’t an attorney and has never played one on TV, I don’t feel remotely qualified to get into that. However, I do agree that this is something Congress should explicitly do if that’s what they want to happen, and I doubt that would happen.
On vagueness, though, I do feel a little more comfortable discussing it because I use the English language to make a living. I understand the importance of precision and the problems with vagueness.
Vagueness, in everyday conversation, opens the discussion up to misunderstanding. “It’s that guy over there,” while pointing to a crowd of people, doesn’t really inform anyone as to anything other than the general direction of where the subject might be.
“It’s that guy over there with the brown, shortcut hair, the athletic build, and the Slayer t-shirt and ratty jeans,” typically narrows it down.
With the law, though, vagueness can have worse ramifications than a simple misunderstanding. In this case, the fact that “unlawful user” isn’t defined and can include or exclude a lot of people, depending on your own interpretation. That means people can end up in prison for being an “unlawful user” of a controlled substance even if they’re obeying state law. They can end up in prison because they cleaned up, but it wasn’t long enough ago for some people’s satisfaction.
The fact that the term “unlawful user” isn’t defined anywhere is problematic simply because it can mean anything along an entire spectrum, which means we end up with an uneven application of the law.
In theory, anyone who has ever tried a joint could be described as an unlawful user. That would jam up a whole lot of people, including many reading this right here and now, who may have tried such a thing in their misspent youth. Or tried it yesterday, for all I know.
So yeah, the Supreme Court could easily latch onto the vagueness aspect and toss the regulation for that alone.
Either way, I don’t actually see them upholding the statute as written, at least without setting firm boundaries on what the term means. What those boundaries might be, assuming they don’t toss it completely, remains to be seen.
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