The Supreme Court will hear oral arguments in U.S. v. Hemani on Monday, March 2, just a short time after the Court releases its orders from last Friday’s conference. That conference had multiple 2A cases slated to be reviewed, so it’s possible we could learn the fate of lawsuits like Duncan v. Bonta and Gator’s Custom Guns v. Washington (dealing with magazine bans) as well as Viramontes v. Cook County, Grant v. Higgins and NAGR v. Lamont (challenging “assault weapon” bans) in addition to hearing the oral arguments in the case that will determine whether the federal government’s ban on gun possession by “unlawful” drug users applies across the board or violates, at least in some circumstances, our Second Amendment rights.
If you want to fully brief yourself on the case the Supreme Court’s docket for U.S. v. Hemani can be found here, but here’s a quick summary.
The U.S. government contends that Section 922(g)(3) is fully compliant with the Constitution. Several appellate courts, including the Fifth Circuit where Hemani’s case has been tried, disagree. The Fifth Circuit says that laws forbidding the possession of firearms while intoxicated likely fit within the national tradition of gun ownership and regulation, while the Third, Sixth, Eighth, and Tenth Circuit have all suggested to one degree or another that the statute is valid insofar as it disarms drug users whose gun possession may pose a heightened danger.
Other circuit courts agree with the DOJ’s position, at least to a large degree. In its last filing before oral arguments, the DOJ argued that, as applied to Ali Danial Hemani, 922(g)(3) is constitutional because he “concededly used marijuana, a Schedule I controlled substance, every other day while possessing a firearm.”
That near-daily usage is enough to make Hemani dangerous in the eyes of the government, though we don’t know if Hemani’s marijuana use looked more like or two tokes from a spliff or multiple bong rips that rendered him so stoned he couldn’t get off his couch.
To my non-lawyerly mind, that’s one of the issues with the DOJ’s position. A grandmother who eats a gummy a day to help her deal with chemo-induced nausea may not even feel intoxicated, but her daily use would make her eligible for federal prison. Meanwhile, someone who only smokes every once in a while but gets stoned out of her gourd every time she does spark up could be free and clear to purchase and possess a firearm.
The same goes for the type of drug. What matters to the government is the frequency of the use, not the effects a particular drug might have. Someone who smokes pot every Friday night in the privacy of their home is likely prohibited, but someone who drops acid or uses bath salts on a n irregular basis isn’t considered an “unlawful” user because the DOJ says that term encompasses habitual, but not occasional drug users.
That interpretation of 922(g)(3) is pretty creative, but the statute doesn’t define “unlawful” or “user,” so both sides will be trying their best to steer the justices in their direction.
I suspect that a majority of the justices are leaning towards some type of individualized, judicial finding of dangerousness before 922(g)(3) can be constitutionally applied, but I’m very curious to hear the questions posed during oral arguments and whether they’ll give us a sense of where individual justices stand.
Will the pro-2A bloc of justices (Gorsuch, Alito, Thomas) adopt the position that the statute can be unconstitutional in at least some cases, or will their conservatism lead them to conclude that all drug users have the potential to be dangerous and can therefore be disarmed? Will the progressive wing of the court, typically supportive of gun control but also more lenient on the issue of marijuana, actually adopt a pro-2A stance? And what about Roberts, Barrett, and Kavanaugh, all of whom are more of a wildcard when it comes to enforcing federal gun laws?
We’ll have full coverage of the Hemani oral arguments on Monday’s Bearing Arms Cam & Co, and hopefully some good news to report from Friday’s conference as well. Be sure to tune in, and you can listen to the oral arguments for yourself here.
Editor’s Note: The mainstream media continues to lie about gun owners and the Second Amendment.
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