Oral Argument in Hemani

Yesterday the Supreme Court had oral argument in United States v. Hemani, which presented the question, “Whether 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.”

Several justices honed in on an important question: When Congress makes a categorical judgment about who can lawfully possess or carry firearms, how should courts review that judgment? Near the beginning of the opening argument by Hemani Counsel Erin Murphy, Chief Justice Roberts asked whether Hemani’s position—that disarmament on account of his marijuana use violates the Second Amendment—embodied a “fairly cavalier approach to the necessary consideration of expertise and the judgments we leave to Congress and the executive branch.” In other words, if Congress says marijuana users are dangerous, who is the judiciary to question that decision?

Two thoughts on this issue. First, applying Bruen‘s historical analysis, we ask what is the historical tradition at issue? Both sides agree that firearms can be banned from physically “dangerous” individuals. Accepting that principle resolves this case, without the Court having to decide what level of deference the legislative branch gets in defining categories of dangerous people. That is because (as several justices seem to acknowledge in their questioning) that is not what happened here. In enacting Section 922(g)(3), Congress did not come up with a list of drugs whose use renders the user “dangerous,” thereby justifying disarmament. Rather, Congress simply incorporated wholesale the drug “schedules” prescribed under the Controlled Substances Act and said that any unlawful user of a scheduled drug can be disarmed.

While it may be perfectly fair to determine that users of some scheduled drugs are “dangerous”—PCP, methamphetamine, heroin, etc.—there are many drugs that are scheduled that don’t seem to suggest anything of the sort. Adderall, for instance, which is commonly taken by students at exam time, or Ambien, which induces sleep, seem unlikely to point to someone who is physically dangerous with a firearm. That is because what “schedule” a drug is on is not actually related to dangerousness for Second Amendment purposes, and a determination that it should be scheduled at all in no way indicates dangerousness. In Second Amendment terms, the “why” that a drug is scheduled under the CSA is totally unrelated to the “why” that has historically justified disarmament.

Second, if the Court does wade into the issue (it seems premature to do so in Hemani specifically), the answer to the Chief Justice’s question is: “No, it would be a judicial abdication for a court not to review a legislature’s finding of ‘dangerousness’ when fundamental rights are at stake.” The Supreme Court explained in Gonzales v. Carhart (2007) that, although it generally reviews congressional fact finding deferentially, the Court has “an independent constitutional duty to review factual findings where constitutional rights are at stake.”

Where a question is one—as is the case in suits that seek to determine the scope of the Second Amendment’s protections—that “can be settled finally only by [the Supreme] Court,” the Court has not hesitated to reject congressional findings that it found inconsistent with the strictures of the Constitution, as it said in United States v. Morrison (2000). “Simply because Congress may conclude” something, the Court noted in United States v. Lopez (1995), “does not necessarily make it so.” If Congress passes a law that disarms Ambien users because Ambien users are “dangerous,” the Second Amendment compels the Court to ask whether that is really true: it cannot take Congress’ word for it.

But that is not how Section 922(g)(3) works and the Court may well not get into the issue in deciding this case. The fallback position the government advanced at argument was that substances on the most serious “schedules,” Schedule I and Schedule II drugs, may be an appropriate basis for disarmament, even if drugs on the lower schedules are not. Not only does that not improve matters—”dangerousness” is not a relevant consideration for any schedule—it causes considerable confusion in Hemani’s case specifically. The government is currently considering downgrading marijuana, Hemani’s drug of choice, to Schedule III, so that under its own reasoning, it would demote the drug from one that is “dangerous” to one that is not. That fact prompted Justice Gorsuch to ask in frustration, if the government’s position is that dangerousness is the principle and it scales up the schedules under the CSA, then isn’t this “an odd case to have chosen to test … [that] principle?” It would certainly seem so.

Whatever the outcome, no question exists that the previous over-expansive ATF regulation is dead. As I explained here, the regulation asserted that one is an unlawful user if the drug was used “in the past year.” The U.S. brief in Hemani argued that one is an unlawful user “only if he engages in the habitual or regular use of a controlled substance,” and never mentioned the ATF regulation. ATF has proposed an interim final rule stating: “A person who regularly uses a controlled substance over an extended period of time continuing into the present, without a lawful prescription or in a manner substantially different from that prescribed by a licensed physician, is an unlawful user of a controlled substance.”