The Supreme Court announced on Monday that it would review a Second Amendment case that challenged a federal law forbidding drug use by gun owners, revisiting the history-and-tradition test in one of the most widely invoked gun restrictions in the country.
The case, United States v. Hemani, is the second major Second Amendment case that the justices have taken up this term. Earlier this month the court also agreed to review a Hawaii law on the default rules for when gun owners can carry them on other people’s private property.
Monday’s announcement could have even broader implications. The Justice Department told the justices in their brief that the provision in question is one of the most widely prosecuted laws in the nation, and that past drug use is also one of the most common issues that come up in federal background-check denials. Laws in two-thirds of the states could also be affected if the court rules in the defendant’s favor.
The case’s namesake, Ali Daniel Hemani, was charged with violating a provision in federal gun law known as Section 922(g)(3). The provision makes it a felony offense for anyone “who is an unlawful user of or addicted to any controlled substance” to own or carry a firearm. Tens of thousands of people have been prosecuted under this section—including former President Joe Biden’s surviving son Hunter.
The plaintiff in this case is not a typical American drug user. Federal prosecutors allege that Hemani, a dual U.S. and Pakistani citizen, was already on the FBI’s radar for years for suspected ties to the Iranian Revolutionary Guard Corps, or IRGC, a powerful military organization within the Iranian government that often operates overseas. The State Department lists the IRGC as a designated terrorist group for its alleged role in attacks on U.S. and foreign civilians.
Federal agents searched Hemani’s phone during a border crossing in 2019 and found evidence that he had traveled to Iran and liased with people who were allegedly tied to Iranian government groups. They also found evidence that Hemani used and distributed drugs. After searching his family’s house, they found marijuana, cocaine, and a handgun, which Hemani claimed belonged to him and not his relatives. He was then charged under Section 922(g)(3) for his marijuana use.
The Supreme Court’s Second Amendment rulings soon threw those proceedings into turmoil. In the 2022 case New York State Pistol and Rifle Association v. Bruen, the court’s conservative majority laid out a new test for lower courts to use when weighing gun restrictions. Justice Clarence Thomas, writing for the court, said that courts should only use a history-and-tradition test to determine whether the laws should be upheld.
“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” Thomas wrote for a 6-3 court. “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.”
As I wrote about in Bruen’s aftermath, this test quickly ran into trouble in the lower courts. Different courts and judges struggled to figure out what constituted a “historical analogue,” leading to wildly diverging results among the lower courts. Some courts also used it to strike down some of the most widely agreed upon gun restrictions by interpreting the historical evidence as narrowly as possible.
The Supreme Court itself backpedaled on Bruen two years later in United States v. Rahimi. The Fifth Circuit Court of Appeals had used the history-and-tradition test to weigh the constitutionality of a federal law that confiscated guns from alleged domestic abusers. Since the concept of domestic violence did not really exist in the early republic, there were no laws against it or “historical analogues” to rely upon. As a result, the Rahimi panel held that the law was invalid.
The Supreme Court soon granted review and overturned that decision. Chief Justice John Roberts, writing for a 8-1 court, watered down the Bruen test by allowing courts to think more broadly when considering whether colonial-era laws are comparable to modern ones. Thomas, the lone dissenter, said he would have upheld Bruen’s standard as written—no surprise, since he created it—and struck down the law in question.
The other eight justices sent a clear signal that courts need not be so hidebound. “When a challenged regulation does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster,’” Roberts wrote, quoting from precedent. “The law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’”
In an unrelated case while Hemani’s prosecution was ongoing, the Fifth Circuit held that 922(g)(3) violated the Second Amendment under Bruen. The Supreme Court vacated that ruling and instructed the Fifth Circuit to reconsider that decision after Rahimi was decided last year. Two months later, in United States v. Connelly, the Fifth Circuit largely stood by its original holding that 922(g)(3) was unconstitutional.
Drug use, such as we know it today, did not exactly exist in the early republic. The Fifth Circuit panel rejected various “analogues” to 922(g)(3) that were proposed by federal prosecutors: laws that disarmed people with mental illnesses, laws that disarmed people considered to be “dangerous” by the community, and laws that restricted firearm use while intoxicated. The panel noted in Connelly’s case that while intoxication laws were a tempting comparison, they could also be easily distinguished from drugs.
“These laws may address a comparable problem—preventing intoxicated individuals from carrying weapons—but they do not impose a comparable burden on the right holder,” Judge Kurt Engelhardt wrote for the panel. “In other words, they pass the ‘why’ but not the ‘how’ test. Taken together, the statues provide support for banning the carry of firearms while actively intoxicated. Section 922(g)(3) goes much further: it bans all possession, and it does so for an undefined set of ‘user[s],’ even while they are not intoxicated.” (Emphasis his.)
Earlier this year, the Fifth Circuit sided with Hemani on his Second Amendment challenge by reiterating its ruling in Connelly. The Justice Department then urged the Supreme Court to intervene in a petition for review in June. Solicitor General John Sauer emphasized that the Trump administration supported the Second Amendment, but also argued that it fit within the nation’s historical tradition of gun regulations.
Most of the government’s emphasis centered on the alcohol analogy. “If anything, Section 922(g)(3) rests on an even stronger justification than laws about drunkards,” the Justice Department told the court. “Habitual users of drugs, which are unlawful, pose a greater danger than habitual users of alcohol, which was legal at the founding and remained legal for most of American history.”
Hemani, for his part, took issue with the government’s decision to bring up his alleged Iranian ties in the case and urged the justices to focus only on the exact charges before them. It also disputed the government’s history-and-tradition analysis, arguing that it had relied too heavily on laws unrelated to gun ownership to make its case.
“[The government’s] argument that history and tradition support regulation under Section 922(g)(3) is tenuous at best,” Hemani explained in his brief. “[Its] logic is as follows: 18th century laws against vagrancy includes restriction on rights of ‘drunkards;’ 19th century laws allowed for drunkards to be committed to asylums or placed under guardianship; and surety laws sometimes extended to ‘common drunkards.’”
Hemani also pointed to the Fifth Circuit’s ruling that addressed the government’s claims. “Considering the ‘extremely high level of alcohol consumption in the early Republic, this handful of generally inapposite laws does little to help the government’s position,” the panel had noted. “The government fails to identify any relevant Founding-era tradition or regulation disarming ordinary citizens who consumed alcohol.”
With the court’s post-Bruen approach to the Second Amendment still in flux, it is hard to predict exactly how the justices will resolve the case. The six-justice conservative majority appears to be broadly sympathetic to Second Amendment claims. The court’s decision in Rahimi showed a willingness to uphold broad federal restrictions on gun ownership that address modern issues, even if there wasn’t a directly applicable founding-era analogue.
At the same time, a law that criminalizes gun ownership for “addiction” to controlled substances may bring more skepticism than allegations of domestic violence. While early American legislatures categorically disqualified certain groups of people from gun ownership, drug users were not among them. Even restrictions for “drunkards” and “the insane” were not necessarily permanent.
Either way, the Supreme Court will be required to elaborate on what kind of historical evidence can be used in the history-and-tradition test, as well as where to draw the line between modern issues and historical constraints. As the wave of post-Bruen litigation has shown, even modest changes to the court’s new test can have a significant impact on the prevalence of gun ownership in modern American life. Oral arguments will likely take place this spring, and a decision will follow some time before the end of the court’s term in late June.
The post The Gun Rights of Drug Users Are Up for Grabs at the Supreme Court appeared first on New Republic.
