Unpacking Hemani
This morning, the Court issued its decision in United States v. Hemani. The Justices unanimously agreed that 18 U.S.C. 922(g)(3), as-applied to Mr. Hemani, violated his Second Amendment rights. Here are five key takeaways from the Court’s decision.
1. The holding is narrow.
In the majority opinion, authored by Justice Gorsuch, the Court makes clear that the opinion’s holding is a narrow one:
In many respects, this case is a narrow one. We do not address efforts to ban addicts, or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms. We do not address 18 U.S.C. §922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). We do not even address whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.
As a result, the immediate practical effects of Hemani are also likely pretty insignificant as far as the broader landscape of Second Amendment litigation is concerned. Only 5% of the convictions under 922(g) involve subsection (g)(3), and Hemani itself leaves the door open for Section 922(g)(3) to be applied to unlawful drug users whose use renders them a danger to others.
It’s worth noting that the Court did not adopt the Fifth Circuit’s very narrow interpretation of (g)(3), which would have limited application of the law to periods of active intoxication. The Court’s decision today suggests that active intoxication is not required in order for 922(g)(3)’s restrictions to apply, but more than occasional use is required.
2. The decision offers little guidance on how to apply Bruen.
Consistent with its opinions in Bruen and Rahimi, the Court reiterates that modern laws must be similar in the “how and why” they burden conduct protected by the Second Amendment to the historical laws upon which the government relies. Here, the government relied upon “habitual drunkard” laws to justify disarmament of unlawful drug users under 922(g)(3). The Court explained, however, that “[t]he historical laws on which [the government] relies targeted different kinds of people, did so for different reasons, and operated in different ways.”
First, 922(g)(3) purports to disarm people who, because of their habitual intoxication, pose a public safety risk. The habitual drunkard laws, according to the Court, regulated a class of people "incapable of managing their own affairs," which is a far narrower class of persons than 922(g)(3) captures:
922(g)(3) automatically disarms anyone who regularly uses any amount of any controlled substance for anything other than its “prescribed purpose.” The law, the government insists, does not require it to show that a particular individual is regularly incapacitated, much less incapable of conducting his affairs or a threat to himself or others. Put simply, on the government’s telling, §922(g)(3) sweeps in large numbers of people without regard to whether their substance use has the kind of incapacitating effect on them that historical habitual drunkard laws normally required.
Second, the laws regulated conduct in different ways and for different purposes. The Court analyzed the three types of habitual drunkard laws cited by the government, which took the following forms and/or included the following enforcement mechanisms: vagrancy laws, civil commitment provisions, and surety bonds. The Court concluded that none of them share the “purpose” of protecting the public from “unusually dangerous individuals” at risk of misusing firearms. Rather, the first two were more about getting habitual drunkards off the streets and into their places of employment and “protect[ing] the habitual drunkards from themselves and their families from financial devastation.” Surety laws fail for similar reasons: they imposed financial penalty on persons who violated society’s morals.
In sum, the three analogues offered up by the government were insufficient to justify the disarmament of Hemani, who was an occasional user of marijuana. But it remains unclear what would have satisfied the Court, nor at what level of generality the “how and why” analysis should be conducted in future cases.
3. Categorical restrictions are safe… for now.
Importantly, the Court does not hold that categorical prohibitions are per se constitutionally suspect. Rather, it holds only that subsection (g)(3), as written, is too broad to justify categorical disarmament of unlawful drug users. The Court makes clear (including at footnote 6 of the majority opinion) that nothing in the opinion should cast doubt on the constitutionality of 922(g)(1)—the felon disarmament provision—nor on (g)(4), which disarms anyone “adjudicated as a mental defective” or “committed to any mental institution.”
However, it’s worth noting that the Court quotes from then-Judge Barrett’s dissent in Kanter v. Barr, in which she would have struck down the federal felon-in-possession ban as applied to nonviolent felons. The Court cites the following quote from that opinion: “affording the government that kind of ‘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.” Kanter v. Barr, 919 F. 3d 437, 465 (7th Cir. 2019) (Barrett, J., dissenting). It’s somewhat of a contradiction to cite that language on the same page where the Court notes that “[w]e do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms.” It seems like categorical prohibitions are safe for the time being, but the nod to Kanter suggests that perhaps not all Justices agree on which categorical bans survive constitutional scrutiny.
4. Dangerousness remains an appropriate basis for disarmament.
On pages 4-5 of the majority opinion, the Court reaffirms the approach set forth in Rahimi, which allows the government to justify gun restrictions that rest on the same “principles” as its historical forebears. The opinion explains that if the government can show that a person’s unlawful drug use makes him a danger, then he can be disarmed. In other words, the Court implicitly endorsed the longstanding principle that dangerousness is still an appropriate basis for disarmament. The government simply failed to demonstrate that Hemani presented such a danger in this case.
5. Still no answer on the “time period” question.
Again, the Court offers no guidance on what time period historical analogs are to be drawn from. Footnote 3 (p. 7) states that
As in Bruen, we need not decide today “whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868” or when the Bill of Rights was ratified in 1791. For reasons explored below, the government cannot establish that the Second Amendment at either point in time permitted anything like its prosecution here.
The Court still hasn’t issued its decision in Wolford, which implicates this question more directly because it involves a state law. Perhaps Wolford provide a clearer answer on the time period question, but it would be odd for the Court to disclaim the need to answer the question here yet answer it in Wolford, in as little as five days later. Furthermore, the majority opinion in Hemani relies heavily on laws from the 19th Century—including those from 1838, 1851, 1874, and 1876. If anything, this suggests that the Court is comfortable with parties relying on 19th Century history to establish nationwide tradition of historical regulation, despite certain Justices seeming preference to limit the inquiry to Founding Era history only. It would certainly be strange for the Court to itself endorse 19th Century history in its discussion of habitual drunkard laws yet disclaim their relevance a mere week later. Based on that, it strikes me as unlikely that Wolford definitively answers the time period question.