Among pro-2A Supreme Court watchers, the consensus opinion is that a majority of justices are going to conclude that the federal prohibition on gun possession for “unlawful” users of drugs is unconstitutional, at least as it applies to the defendant in U.S. v. Hemani. Interestingly, the few supporters of gun control who have even mentioned the Hemani oral arguments that took place on Monday seem to agree with the conclusions of Second Amendment supporters, even if they’re not thrilled about it.
Jake Charles, the Pepperdine University law professor who used to head up the Duke Center for Firearms Law, posted a lengthy piece on the Center’s blog this week where he concluded that he has “trouble readily locating—at least from the arguments—another vote in the government’s camp” beyond Justice Samuel Alito and Chief Justice John Roberts.
Justice Thomas was too laconic for me to guess where he might land, but he has the distinction of being the only justice on the Court who has never voted to uphold a law in a Second Amendment challenge.
Both Justices Kagan and Barrett seemed to think that Congress (a) can permissibly make categorical judgments about whom to disarm as dangerous, and (b) is entitled to some form of deference as to those determinations, but also (c) had not made such findings here through the CSA because the legislative purpose and factfinding focused on things other than risk of violence. If that’s right, they could be two votes to say the law is invalid as-applied here because there hasn’t been a congressional determination about the category of marijuana users posing a special risk of harm when armed. Justice Sotomayor I think is probably in the same camp as Justice Kagan and Barrett on that point, as she suggested that despite her belief courts should defer to reasonable legislative judgments “no one has done the analysis” about whether these drugs are linked to violence in this case, so there was nothing to which the Court could defer.
Justice Sotomayor and Justice Kavanaugh also seemed to think that historical tradition might support disarming only those addicted to controlled substances, not mere habitual users. They too, then, could be votes to say the law cannot apply on these facts.
Justice Gorsuch’s views could be read either as focused on statutory or constitutional grounds. On the one hand, some questions suggested he thought Hemani’s conduct just would not qualify as habitual use under the statute’s text, which would mean dismissal of the charges against Hemani because his conduct was not encompassed within § 922(g)(3), but not a ruling on the constitutional question. On the other hand, his questions could suggest that to Justice Gorsuch, the Second Amendment only allows disarming those who are like habitual drunkards, such as addicts, and so Hemani could not be convicted under the statute even if his conduct fell within the statutory definition of unlawful user.
I am not sure what to think about Justice Jackson’s perspective on the case. She clearly has problems with Bruen’s test (and rightly so), but I think that makes it hard to see how she might either apply it or write separately to say she is no longer going to apply it. In Rahimi, she applied the test, even though she wrote separately to say she would not have joined Bruen had she been on the Court. Here, one could see her suggesting that the law is overly broad as to the relevant historical principle under Bruen (as articulated by Hemani) and also fails traditional means-end scrutiny as applied to marijuana users.
Charles says his “wildly speculative guess is that he gets somewhere between 6-7 votes,” which is exactly where most 2A supporters have come down as well (including me). I think 7-2 is the most likely outcome, but I could a 6-3 decision with Thomas or Kagan joining the minority in declaring 922(g)(3) valid when it comes to “unlawful” marijuana use.
And, like most everyone else who’s weighed in with their thoughts on the case, Charles thinks it’s far more difficult to predict the rationale used by individual justices in their decisions, as well as the scope of the majority opinion.
Charles, though, does offer up the possibility of the Court ruling in the government’s favor… so long as a majority of the justices adopt the arguments he and several other pro-gun control law professors made in an amicus brief.
For example, consider Hemani as asking three questions:
(1) Can Congress make categorical determinations about who can be disarmed instead of regulating only on the basis of case-by-case, individualized dangerousness determinations?
(2) If so, is its judgment entitled to some level of judicial respect?
(3) If so, does that respect mean the categorical disarmament at issue here be should upheld?
Our brief argued for affirmative answers to all three questions.
Charles says he thinks there’s majority support for answering the first two questions in the affirmative, but says on the last question the “majority might fracture.”
Even if he’s right about where the Court ends up on those first two questions (or whether they address them at all), I don’t think its a matter of “might” or “maybe” when it comes to deciding whether Ali Danial Hemani was rightfully convicted of violating Section 922(g)(3). The majority might not entirely agree on why his conviction (and the statute) violates his Second Amendment rights, but I would be utterly shocked if it upholds the conviction.
The justices may reach some kind of consensus, but I think we’re probably going to see one or two concurring opinions laying out a different rationale for reaching the conclusion adopted in the majority opinion. For that reason, I suspect that this isn’t going to be the last time the Court addresses this statute, but I think the opinions will give enough guidance to lower courts that it will take another couple of years (at least) for any circuit court split to develop deep enough to warrant SCOTUS’s attention.
Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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