Should Hemani be Decided as a Statutory Case?
The Supreme Court will hear oral argument in United States v. Hemani in the coming months, a case that involves the Second Amendment constitutionality of the federal ban on unlawful drug users possessing firearms and ammunition. Per the government’s cert petition, the question presented is “[w]hether 18 U.S.C. 922(g)(3), the federal statute that prohibits the possession of firearms by a person who ‘is an unlawful user of or addicted to any controlled substance,’ violates the Second Amendment as applied to respondent,” who possessed a firearm along with marijuana and cocaine. The Fifth Circuit found the provision operated unconstitutionally as to Hemani, holding (in reliance on an earlier decision in United States v. Connelly) that “history and tradition [] support, at most, a ban on carrying firearms while an individual is presently under the influence.” Because the government did not present evidence that Hemani was actively under the influence of drugs at the time he possessed a gun, the court said, the charge could not stand.
Hemani presents an interesting example of a constitutional case that does not need to be one; rather, statutory arguments to pare back 922(g)(3) are more appropriate. Hemani has not argued that the language of 922(g)(3) is limited to contemporaneous drug use and gun possession. And that itself is telling. As the Supreme Court continues to remake Second Amendment law to focus on history and tradition, parties will understandably pursue constitutional claims even where statutory arguments make more sense. Thus, evolving Second Amendment law threatens to cannibalize narrower statutory arguments and distort the separation of powers between the legislative and judicial branches.
The statute under which Hemani was charged and convicted is part of the Gun Control Act of 1968 (GCA). The GCA provides that “[i]t shall be unlawful for any person . . . who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))” to possess firearms or ammunition. The statutory language contemplates two “prongs,” or types of conduct giving rise to criminal liability. First, those who are drug “addicts” are barred. The Controlled Substances Act, cross-referenced in 922(g)(3), defines “addict” as “any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.” “Addiction,” then, means something more than mere habitual drug use.
Second, the statute prohibits gun possession by “unlawful users” of drugs. For this category, there is no explanation in the statute—so it’s not immediately clear how Congress intended to define the scope of “unlawful use.” The statutory language doesn’t specify how close in time the drug use must be to when a gun is possessed, whether the use must be regular or habitual, or how far beyond “addiction” the unlawful-user category is intended to stretch.
In subsequent decades, federal courts interpreted the phrase “unlawful user” expansively. Judicial analysis of 922(g)(3)’s statutory language, often while weighing a vagueness challenge, has focused on (a) contemporaneousness, and (b) regularity. Contemporaneousness asks how close in time any instance of drug use must be to gun possession. The analysis is usually fact-specific; courts require that drug use be “ongoing” but not necessarily simultaneous with gun possession. There is more debate about regularity of use. For example, some circuits hold that regular use always requires more than one instance of drug use, while other circuits leave the door open for the statute to be applied even to those who have used drugs only once or twice if such use is very close in time to when they possessed a firearm.
It is perhaps no accident that this relatively expansive view of “unlawful use” developed in the 2000s and 2010s, as the U.S. grappled with the opioid crisis and renewed concerns surrounding drug abuse generally. Sweeping constructions of 922(g)(3) generated pushback from the criminal defense bar. Notably, Hunter Biden argued unsuccessfully in advance of his 2024 criminal trial that “deeming someone a drug use[r] who may have last used ‘within a matter of days or weeks before’” possessing a gun was improper—though he framed this argument as a constitutional one. The statutory question has even made its way to the Supreme Court: the justices entertained (but ultimately denied) a petition for certiorari in Carnes v. United States in October 2022. Now, the justices have taken up the same question, framed as a Second Amendment inquiry, in Hemani.
Under longstanding legal doctrines, however, Hemani and similar cases should be decided on statutory rather than constitutional grounds. First, courts presume that duly enacted legislation is constitutional absent clear evidence to the contrary. Or, as Justice Story explained in 1830, “[n]o court ought, unless the terms of an act of Congress render it unavoidable, to give a construction to the act which should, however unintentional, involve a violation of the Constitution.” Here, the presumption of constitutionality requires that a court read the GCA in harmony with constitutional limitations imposed by the Second Amendment, if at all possible.
Relatedly, under the doctrine of constitutional avoidance, courts eschew constitutional grounds of decision if a narrower, statutory basis is available. As Justice Brandeis famously explained,
“[t]he Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.”
This doctrine is also called the “constitutional doubt” canon, as judges avoid an interpretation that would create doubt about a statute’s constitutionality. The canon has admittedly been employed selectively by the current Supreme Court, leading prominent scholars to criticize it and argue that “[t]he avoidance canon is just another doctrinal tool in the Court’s arsenal to move constitutional law and policy in the Court’s direction and at the Court’s chosen speed.”
In Hemani and similar Second Amendment challenges, however, these related doctrines should have real force. If applied, the Court would presume the enacting Congress legislated within the confines of the Constitution and abstain from deciding the case as a constitutional challenge if it is possible to decide it on narrower, statutory grounds. The Court should be especially wary, moreover, of invalidating a statute on constitutional grounds in such a scenario—as Hemani asks the justices to do.
Given the lack of detail in the statute about what Congress intended by the words “unlawful user,” the Court could certainly decide the case on statutory grounds. And, as a matter of constitutional avoidance, it should do so rather than reach the Second Amendment issue. Perhaps, as Hemani urges, proof of simultaneous drug use and gun possession is required. If so, the Court could reach that outcome by holding that “unlawful user” refers to active use at the time of gun possession. Similarly, the Court could reject Hemani’s arguments by clarifying that the statute requires only evidence of regular use around the time of gun possession. But these are both statutory holdings that avoid the lurking constitutional questions and (correctly) assume that Congress in 1968 did not enact a statute exceeding the bounds of the Second Amendment.
It's notable that Hemani and other 922(g)(3)) challengers do not push statutory arguments. As the Roberts Court has reengaged with Second Amendment law and put its distinct imprint on that area by articulating a novel history-based test, it seems that constitutional claims are in vogue and have better odds of capturing the justices’ attention. However, in Hemani, the Court would do well to take a close look at the statutory question and respect the balance struck by the presumption of legislative constitutionality.