Legal Docket: Back to first principles

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JENNY ROUGH, HOST: It’s Monday the 22nd of June. Glad to have you along for today’s edition of The World and Everything in It. 

Good morning, I’m Jenny Rough.

NICK EICHER, HOST: And I’m Nick Eicher. 

Time now for Legal Docket!

The Supreme Court handed down three opinions last week. We’ll begin with a significant Second Amendment gun case called United States vs Hemani.

Picture this: A husband regularly takes his wife’s Ambien (it’s a prescription drug) to help him sleep (even though that’s technically illegal). A college student routinely takes his friend’s Adderall (prescription drug) to cram for exams. (Again, technically illegal).

Those are the examples Justice Neil Gorsuch gave as he explained why a law that bans illegal drug users from owning a firearm is unconstitutional. It’s simply too sweeping. 

The judgment of the Court was unanimous … liberals joining conservatives on a Second Amendment case, and affirming a lower court’s ruling.

ROUGH: I discussed the significance of the case with William Wagner.

WAGNER: Well, this really is a case about constitutional power and the way that the government structures power in the Constitution.

Wagner is a constitutional law scholar with the Faith and Freedom Center at Spring Arbor University in Michigan.

WAGNER: But then even more importantly, how the Constitution limits the exercise of power by those who we the people give that power to.

The Constitution gives Congress the power to create laws that regulate commerce, including the shipping and transportation of guns.

WAGNER: And so they wrote this law, and you can find it in the United States code in Title 18, section 922.

The Gun Control Act. It prohibits gun possession by any person who is “an unlawful user of or addicted to any controlled substance.” 

In other words, the Act bans a class of people from owning a firearm. And the defendant in this case falls into that class.

EICHER: Ali Hemani is a dual citizen of the United States and Pakistan and lives in Texas. Suspecting Hemani might be involved in terrorism, the government got a search warrant and went through the home where he lived with his parents. The government found marijuana, cocaine, and a gun. 

During the search, Hemani admitted he uses marijuana regularly, about every other day.

ROUGH: More than six months later, the government brought only one charge: possessing a firearm while being a user of marijuana.

WAGNER: So now you’ve got the federal government in the executive branch using power as well. … They’re using their power to enforce this law through a federal prosecution, and they prosecute him under this statute...

Hemani’s lawyers challenged that statute. They said the law violated his Second Amendment right.

WAGNER: And so now we see how this constitutional process is supposed to work. … What the Supreme Court was faced with was the question of whether or not the federal government had used its power in a way that interfered with one of our inalienable fundamental liberties.

In other words, did the government cross the line from permissible regulation into unconstitutional infringement? The court said yes, it did. But Wagner says the real key to this case is how the court decided that.

WAGNER: How did they get to the conclusion that the federal government was unlawfully and unconstitutionally interfering with that liberty protected by the Second Amendment? Well, the way they did it is they said we’re going to start looking at the Constitution and we’re going to say what it says.

The Court began its analysis by acknowledging the Constitution protects the right of all Americans to keep and bear arms for self-defense. It also acknowledged that individual rights have limits. But when it came to the limit, the Court pointed out that the gun regulation does not consider what the controlled substance is, how much he uses, whether the drug makes him dangerous, why he keeps a gun, and how safely he does so. 

There’s no inquiry. Just a ban.

EICHER: Here’s Justice Gorsuch grappling with that last March during oral argument:

GORSUCH: So we don't even know the quantity of how much he uses every other day. What if he took one gummy bear … to help him sleep every other day? Disarm him for life?

Now, if the government can show that its gun law is consistent with the nation’s history and tradition of regulating firearms, it can likely overcome the presumption that the law is unconstitutional.

ROUGH: The government did make that attempt—namely, pointing out that early American laws deprived another class of people from firearm rights: “historical drunkards.”

WEINBERGER: Drinking was a huge problem in early America.

I called up this law professor who a few years ago clerked for Justice Gorsuch. Lael Weinberger is a professor of constitutional law at George Mason University.

WEINBERGER: The rates of alcohol consumption were very, very high.

Weinberger notes that his old boss seemed to enjoy writing this opinion.

WEINBERGER: He’s clearly someone who loves history, loves digging into this, and I thought this opinion was actually a very fun read because Justice Gorsuch digs into the history of drunkenness in early America and has some very colorful and entertaining historical materials in here. 

Like the story of Benjamin Rush, a signer of the Declaration of Independence and a medical doctor. His medical reports had comments from a habitual drunkard.

WEINBERGER: Who says, "Were a keg of rum in one corner of the room and a cannon constantly firing between me and it, I still couldn’t help myself from running in front of the cannon in order to get to the rum." And that’s what Dr. Rush said one of his patients … said in describing his addiction.

Excessive drinking is a serious problem. But to deprive habitual drunkards of their liberties, the government had to show the extreme alcohol use incapacitated them, or caused them to be incapable of conducting affairs.

WEINBERGER: The reason all of this stuff about drunkenness matters is because as the government made their claims, they made a very sweeping and very aggressive argument. …The government wanted to say "We want a bright line rule where it’s really easy to disarm people if you can show the person we’re trying to disarm used a controlled substance."

Today’s law assumes that anyone who regularly uses drugs in an unqualified way is categorically dangerous. There’s no individualized analysis. 

Also, the automatic ban comes without any formal steps before the liberty is lost.

WEINBERGER: And basically what all the justices of the Supreme Court ultimately agree on is that that’s asking too much. The Second Amendment, yes, of course they leave the acknowledgement that it permits the government to disarm someone who is actually dangerous. But merely showing, for instance, that someone used their spouse’s Ambien, a prescribed sleeping medication, in an unauthorized way, is not going to be sufficient to just say, "Oh, you’re automatically prohibited from exercising Second Amendment rights."

EICHER: A number of justices wrote concurrences to hash out finer points. For the first time ever, conservative Justice Samuel Alito and liberal Justice Elena Kagan joined for a concurrence of their own. Alito pointed out that even though federal law still criminalizes marijuana possession, many states have legalized it, and the federal government has allowed a multi-billion dollar marijuana industry to develop.

ROUGH: But the debate over the adverse effects of marijuana remains heated.

Alito and Kagan seemed to imply that disarmament on the basis of incapacitation might also be okay, without a separate showing of dangerousness.

WEINBERGER: So perhaps the Alito-Kagan view would allow the government to disarm more people who are drug users. Show they are habitual users of drugs such that leads them to long-term incapacitation.

Overall, both the professors I talked to agreed this case followed an originalist analysis. And that brings me back to what Professor Wagner said at the beginning about the importance of starting with the Constitution and what the law says.

WAGNER: That is really important—not just in the Second Amendment case, but it’s really important for people of faith and for people who care about freedom of expression. … Because when the government interferes with the free exercise of religious conscience, the language of our Constitution is clear: "Government, you don’t get to do that." 

And so in all these cases that are dividing our culture out there, and very often where you see exercises of government power coming against people of faith in ways that oppress their ability to share the full counsel of the Bible, for example, now the Court is going to, I hope, continue this trend and say, "Well, we’re going to go back first and start with the Constitution." … And I think it’s the one thing that really separates us from all the other nations in the world.

EICHER: Alright, onto our second case now: Hunter vs the United States and limits to plea bargaining. The government charged Mason Hunter with 10 counts of fraud. If convicted, he’d be facing 300 years in prison. Instead of a trial, he entered a plea agreement.

ROUGH: Here’s Professor Wagner again:

WAGNER: When I say plea agreement … think contract.

Most criminal defendants do this today; they plead guilty and as part of the bargain, the government drops some of the charges. Here, nine of them.

In the plea, Hunter agreed not to appeal his sentence.

WAGNER: That’s part of the whole deal is we’re trying to not have to have a whole bunch of cases go to court, have a whole bunch of cases that we've got to spend resources on and lawyers responding to appeals. And what happened here was the guy had entered into that agreement … and then he appealed!

EICHER: The Supreme Court had to decide whether an exception applies to appeal waivers.

Justice Kagan delivered the 8 to 1 opinion. It outlined three positions the court could take:

First, it could agree with the government: that appeal waivers are always enforceable, no matter what. Second, it could agree with the lower court here: that appeal waivers are unenforceable under only one exception; the sentence imposed exceeds the statutory maximum. Or third, it could take the position of the majority of lower courts: that the waivers are unenforceable when it would result in a miscarriage of justice. 

That third position is where the court landed. It sent the case back to apply that standard.

Justice Clarence Thomas filed the lone dissenting opinion.

ROUGH: I asked Wagner to break it down.

WAGNER: And he points out that... thanks to this agreement that the government gave him, this guy got a really, really low sentence compared to what he would have got, and he got all these other advantages. And what Thomas is saying is "you put it into a contract. You signed your name on it that you agree not to appeal." … And so the contract under contract principles, Thomas has a pretty good point here.

Thomas also said the court decision was based on policy, not law.

EICHER: Finally, T.M. vs the University of Maryland Medical System Corporation. 

The facts involve a woman who was involuntarily committed, but the legal issue centers on the relationship between state courts and federal courts. We have 51 different governments in this country. Fifty state governments, and one federal.

ROUGH: Professor Weinberger again:

WEINBERGER: And the fact that we have a double system in our country because of federalism just means that these things are complicated. And sometimes you have parallel courts, they both have jurisdiction of the same thing, and people have a choice of which system they go to with what questions. And that can be good, it can also lead to complications, duplication of effort, inefficiency, and things of that nature.

The courts need rules to manage them. Like the Rooker-Feldman doctrine. That says a party who does not like a state court decision cannot appeal it to a lower federal court. 

In a 5 to 4 decision written by Justice Sonia Sotomayor, the Court upheld that doctrine and said it applies whether or not the state court case is finished.

WEINBERGER: These doctrines really matter for the real life experience of cases. And, you know, calibrated too far in one direction, you’re keeping people out of federal court because "oh, you have the state courts." Well, that might lead to some overall efficiency...

EICHER: But on the other hand, their federal issues might not all get dealt with.

Justice Amy Coney Barrett wrote a dissent, joined by Chief Justice John Roberts, and Justices Kagan and Gorsuch to say there are certain ways to move from state to federal court, and she thought that the majority opinion muddied the rules.

ROUGH: The takeaway: that it’s hard to manage the state-federal relationship and two parallel judicial systems at the same time.

Seventeen more opinions to go, and we’re in the final stretch. The Court is expected to issue more tomorrow around 10am Eastern, so stay tuned.

For now, that’s this week’s Legal Docket.

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