During the debates about the ratification of the Constitution, one of the questions involved the need for a Bill of Rights. One of the arguments against such a document was the idea that some may consider the listing of rights in the Constitution as permission to regulate those rights. We find an example of just such attempt to regulate rights in the Supreme Court case United States v. Hemani. Specifically, can the federal government deny your right to keep and bear arms if you use your liberty to use marijuana?
Background
This case all started with nothing more than government suspicion.
Ali Hemani is a dual citizen of the United States and Pakistan who was born in Texas. He has spent most of his life living in the Dallas area with his parents and working a stable job. Suspecting Mr. Hemani and his family members of terrorism-related activities, the government conducted a search of the family home in 2022.
United States v. Hemani
Personally, I would love a look at the warrant these government actors used to justify their search, but that’s not part of this case.
Throughout the process, Mr. Hemani proved cooperative: he surrendered a gun he kept in the house, pointed agents to some marijuana on the property, and consented to an interview during which he told law enforcement agents that he used marijuana about every other day. More than six months after the search, and relying solely on Mr. Hemani’s admitted use of marijuana, the government prosecuted Mr. Hemani under 18 U. S. C. §922(g)(3) for knowingly possessing a gun in his home while being an unlawful user of a controlled substance.
United States v. Hemani
The wisdom of Mr. Hermani’s cooperation could certainly be argued, but again, that is not part of this case.
Mr. Hemani moved to dismiss the indictment, arguing that the government’s effort to enforce §922(g)(3) against him violated the Second Amendment. The district court granted the motion, and after an unsuccessful appeal to the Fifth Circuit, the government asked this Court to review the case.
United States v. Hemani
Now we have the crux of the matter: A federal law that deprives people of their right to keep and bear arms.
(g) It shall be unlawful for any person-
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) 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));
18 U.S.C. §922
The question the court was asked was: Does this law violate the Second Amendment? I have another question. Does this law violate the Fifth Amendment?
Second Amendment
Justice Gorsuch wrote the unanimous opinion of the court although several justices wrote concurring opinions. However, as is so often the case with the Supreme Court, the question of whether or not a law violates the Constitution isn’t based on the actual language of the document. Rather, the court bases its decision on its previous decisions.
To determine when the government infringes the Second Amendment, the Court begins by asking whether the Amendment’s terms cover the conduct in question; if so, the Constitution “presumptively” protects it. New York State Rifle & Pistol Assn., Inc. v. Bruen,… To overcome that presumption, the government bears the burden of showing its regulatory efforts are “consistent with the Nation’s historical tradition of firearm regulation.”
United States v. Hemani
The Supreme Court stated, in NYSRPA v. Bruen, that to overcome the presumption of constitutionality the government has the burden to show that their regulations are consistent with the nation’s history and tradition of firearms regulation. How does the federal government claim such consistency?
The government construes §922(g)(3) to automatically ban an individual from possessing a gun from the moment he becomes an unlawful user of any controlled substance and remains in effect until he ceases being one, regardless of what controlled substance an individual uses, in what amounts, whether his drug use has ever made him a danger to himself or others, why he keeps a gun, or how safely he does so.
United States v. Hemani
Remember, §922(g)(3) only deals with “controlled substances” as defined by the Controlled Substances Act. By this logic, if you take a drug prescribed for someone else, you are now prohibited from owning or possessing a firearm. How does the government claim this fits with the history and tradition of the United States?
The government analogizes its construction of §922(g)(3) to what it calls “habitual drunkard” laws, which it submits enjoy deep roots in the country’s history and are “relevantly similar” to the regulation it wishes to enforce, Bruen, … These habitual drunkard laws fall into three general categories: vagrancy laws that allowed habitual drunkards to be confined in workhouses or jailed; civil-commitment statutes that allowed courts to appoint guardians for habitual drunkards or authorized their commitment to asylums; and surety laws under which judicial officers could compel habitual drunkards to post surety bonds to ensure their good behavior.
United States v. Hemani
Oops. The government claims that “habitual drunkard” laws are analogous to §922. According to the court though, none of these “habitual drunkard” laws actually prohibited the possession of firearms.
(b) The government’s analogy fails on every metric it invites the Court to consider. Taken cumulatively, these problems prove fatal to the government’s prosecution of Mr. Hemani.
(1) The government’s claim that historical laws targeted habitual drunkards for the same reason §922(g)(3) targets unlawful users—because they regularly use intoxicants—is difficult to square with the historical record. Around the time of the founding and for decades following it, a habitual drunkard was generally someone who “for any considerable part of his time [was] intoxicated to such a degree as to deprive him of his ordinary reasoning faculties,” …; a regular or even frequent drinker did not usually fit the bill.
United States v. Hemani
The court even questioned the reasons behind the purpose the government claims behind §922(g)(3),
There are reasons to doubt that the government has established §922(g)(3) even serves the purpose the government claims, of disarming categorically violent and unusually dangerous persons. Section 922(g)(3)’s reliance on the Controlled Substances Act—a statute adopted to protect “the health and general welfare of the American people,” 21 U. S. C. §801(2), and under which drugs can be added to schedules for reasons having little or nothing to do with their potential to induce violence—makes it far from obvious that 18 U. S. C. §922(g)(3) confines its reach to those who are categorically and unusually dangerous.
United States v. Hemani
If the government’s purpose is to disarm categorically violent and dangerous persons, why did they use a law that regulates drugs, most of which have little if anything to do with people being violent or dangerous? Marijuana, which is the drug use that was the basis of Mr. Hermani’s conviction, has not only been legalized by many states; even the Department of Justice has directed federal prosecutors to limit the enforcement of federal laws against its use. It appears that the government’s viewpoint that Mr. Hermani’s conviction because his marijuana use made him violent or unusually dangerous simply falls apart.
Thomas Concurrence
Justice Thomas didn’t just concur with the opinion, he opened up a very interesting point, one I have been pointing out for years.
I agree with the Court that §922(g)(3) violates the Second Amendment as applied to respondent Ali Hemani, and I join its opinion in full. I write separately to call attention to another issue: As a matter of both original meaning and this Court’s precedents, §922(g)(3) appears to exceed Congress’s enumerated power to regulate interstate commerce.
United States v. Hemani
Congress assumes so many of its regulatory powers from an abuse of the Commerce Clause, which states that Congress shall have the power:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
U.S. Constitution, Article I, Section 8, Clause 3
As Justice Thomas points out:
The statute makes it a federal crime for unlawful drug users to possess any firearm or ammunition “in or affecting commerce.” 18 U. S. C. §922(g)(3). Under the prevailing interpretation of §922(g)(3), the Government can secure a conviction for unlawful firearm possession “if the firearm possessed” by the drug user “had previously traveled in interstate commerce.” United States v. Rawls,…. The Commerce Clause does not authorize Congress to “regulate or ban possession of any item that has ever been offered for sale or crossed state lines.” … Such an understanding would “convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” … So, while the issue was not presented in this case, the Court, and lower courts, should revisit the constitutionality of §922(g).
United States v. Hemani
That should be a mic-drop moment. The Constitution does not authorize Congress to regulate anything that has ever crossed state lines, only to regulate interstate and foreign commerce. Yes, courts should consider the constitutionality of §922(g). In fact, they should consider many of the laws of the United States that abuse the Commerce Clause in an attempt to invoke powers not delegated to it.
Section 922(g) appears to exceed Congress’s powers under the Commerce Clause. Congress has the power to “regulate Commerce . . . among the several States.” U. S. Const., Art. I, §8, cl. 3. As a matter of both original meaning and this Court’s precedents, Congress lacks the power to regulate the possession of firearms solely on the ground that they crossed state lines at some point in the past.
United States v. Hemani
It appears that Justice Thomas is asking for lower courts to look at more than just §922(g).
Under our Constitution, “[t]he powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, … It has now been 26 years since a party has received relief in this Court based on a Commerce Clause challenge. Such relief has also been hard to come by in the lower courts, as the decisions concerning §922(g) show. This question merits a closer look in an appropriate case.
United States v. Hemani
I whole-heartedly agree. If federal courts, or even our states, applied the plain language of the Commerce Clause, rather than the twisted interpretations of Congress and SCOTUS, I would guess that half of our federal agencies, along with all of their regulation, would evaporate. Thus leaving the American people to live free.
Alito Concurrence
Justice Alito wrote an opinion which Justice Kagan joined. However, unlike Justice Thomas’ opinion which casts doubt on §922(g) as a whole, Justice Alito believes the other provisions should remain in place.
JUSTICE ALITO, with whom JUSTICE KAGAN joins, concurring in the judgment.
I agree with the Court that the historical analogues that the Government cites are not “relevantly similar” to 18 U. S. C. §922(g)(3) as applied to respondent. … I therefore agree that we should affirm the judgment of the Fifth Circuit. I also agree that nothing in the opinion of the Court should be read to cast doubt on the constitutionality of other provisions of §922(g), such as §§922(g)(1) and (4), the “prohibitions on the possession of firearms by felons and the mentally ill,” … which we have repeatedly said are “‘presumptively lawful,’” …
United States v. Hemani
As punishment for conviction of a felony, I can see the justification for the loss of certain rights. When it comes to the mentally ill, due process would require some form of adjudication in order to protect the rights of the individual.
The Fifth Amendment Question
While all of the justices agreed that Mr. Hermani’s conviction violated the Second Amendment, and Justice Thomas pointed out the violation of the Commerce Clause, there is one other part of the Constitution the court skirted around: The Fifth Amendment.
No person shall … be deprived of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment V
Just as Justice Thomas pointed out a serious flaw in the constitutionality of §922(g) using the Commerce Clause, I would like to point out the violation of the Fifth Amendment’s Due Process Clause. For Mr. Hermani to be deprived, not only of the his rights protected by the Second Amendment, but his liberty to use what substances he wishes, there must be due process of law, a process to protect Mr. Hermani’s individual rights. Justice Alito helped make this point in his concurrence.
All that we know about respondent’s marijuana use is that he used the drug about every other day. We do not know how much he used, the strength of the marijuana he used, how many times he used it on the days in question, the time of day when he used it, where he used it, or the degree to which this use affected his ability to exercise judgment and perform daily tasks responsibly. As a result, the Government has failed to show that a marijuana user like respondent is incapacitated in a way analogous to the habitual drunkards that the Government’s analogues regulated.
United States v. Hemani
In other words, the government failed to show that Mr. Hermani’s marijuana use made him violent or unusually dangerous. In fact, it appears the government didn’t even try to show Mr. Hermani was dangerous, drug use or not. For that reason, Mr. Hermani’s conviction violated his due process rights protected under the Fifth Amendment.
Conclusion
Even though the court did not consider the constitutionality of §922(g) as a whole, they did unanimously agree that Mr. Hermani’s conviction was a violation of his rights protected by that document.
Held: The government’s prosecution of Mr. Hemani under §922(g)(3)’s unlawful user provision is inconsistent with the Second Amendment.
United States v. Hemani
However, the court was very narrow in its decision.
The Court’s decision is narrow. It does not address efforts to ban addicts or those presently intoxicated from possessing a firearm; other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms; §922(g)(1)’s provision disarming individuals convicted of felonies; or whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s drug use renders him a danger to himself or others, or proof that a certain drug always renders its users dangerous.
United States v. Hemani
That last provision, that government can bring a prosecution under §922(g)(3) if they also bring proof that the defendant’s drug use makes him a danger to himself or others points out the fatal flaw in the law. Because nothing in the law requires such proof, only proof of the use of a drug that Congress does have the legal authority to regulate.
I think the court came to the correct conclusion. I only wish they had taken Justices Thomas’ and Alito’s words to heart. The Commerce Clause does not grant to Congress the legal authority to regulate anything that may have once passed through interstate commerces, and that Congress’ drug schedules do not prove someone using them is violent or dangerous.
Just from what the court showed in this decision, I believe §922(g) is unconstitutional, and therefore illegal and void. I guess we’ll have to wait for another case for someone to actually do something about it.
