Legal Docket: When rights can be lost

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NICK EICHER, HOST: It’s The World and Everything in It for this 9th day of March. 

We are so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Time now for Legal Docket.

Today, another case in the Supreme Court’s effort to define the limits of the Second Amendment.

Can the federal government strip someone of the right to a firearm based on regular use of a controlled substance—even when that person is sober and keeps the gun at home for self-defense?

EICHER: The question comes up because of a landmark 2022 ruling that reshaped how courts evaluate gun laws: New York State Rifle & Pistol Association vs. Bruen.

Under that Bruen decision, the government cannot justify restrictions simply by arguing public safety. It has to show that the law fits within the nation’s historical tradition of regulating firearms.

That’s the framework the justices are applying in today’s case, U.S. vs. Hemani. The relevant law is part of the Gun Control Act of 1968. It bars gun possession by a person who is “an unlawful user of or addicted to any controlled substance.”

The government says the rule is about public safety and whether habitual drug users can be disarmed as a class.

At the Supreme Court, government lawyer Sarah Harris:

HARRIS: The Second Amendment does not prohibit the government from temporarily disarming habitual marijuana users while they persist in using frequently. That tailored restriction easily fits within the historical tradition of disarming categories of people who present a special danger of misuse.

REICHARD: But the drug user’s lawyer says that reading is too broad. She argues that the real question is whether someone using marijuana a few times per week can be made into a felon for having a gun secured at home.

The lawyer is Erin Murphy:

MURPHY: …it can't constitutionally be applied to anyone because the statute fails to provide fair notice of what makes someone an unlawful user of a controlled substance who can be stripped of their Second Amendment rights.

Murphy argues the government’s historical comparison is wrong, too. Federal lawyers point to old laws restricting “habitual drunkards.”

But Murphy calls the comparison flawed:

MURPHY: Indeed, the whole point of the doctrine was to distinguish those who consumed alcohol frequently but mostly in moderation, from those who so habitually consumed alcohol to the point of intoxication as to impair their ability to function even in whatever moments of sobriety they may have had.

EICHER: Her client is the man at the center of this fight, Ali Danial Hemani. 

Now, some background on why federal authorities were already paying attention to him.

Hemani grew up around Dallas, but he's a dual citizen of the U.S. and Pakistan. Hemani’s lawyers describe him as a college graduate and a valued member of his Shi’a Muslim community. 

Federal authorities searched his phone during a 2019 border crossing and later said it contained communications about possible fraud involving Iran’s Revolutionary Guard Corps. The U.S. has designated the IRGC a terrorist organization and is now engaged in war against it.

REICHARD: The government also notes Hemani traveled to Iran to commemorate Qasem Soleimani, the Iranian general killed in a U.S. drone strike back in 2020. Prosecutors point to a video of Hemani’s mother saying that she prayed her sons would one day become martyrs like Soleimani.

Interesting as that is—the Supreme Court is not deciding whether Hemani poses a national-security risk.

Using a warrant, the FBI searched Hemani’s home and found a Glock handgun along with cocaine and marijuana. Hemani surrendered the gun and told agents he smoked pot roughly every other day.

EICHER: A federal grand jury charged him with possessing a firearm while being an unlawful user of controlled substances.

And the constitutional question that follows arises because of the Bruen case, that landmark Supreme Court decision in 2022 that reshaped the way courts review gun laws.

So the issue now is whether this section of federal gun law violates the Second Amendment as applied to Hemani.

REICHARD: That Bruen decision said the government cannot justify gun restrictions just by saying that they promote public safety.

Now the government has to show the restriction is consistent with the nation’s historical tradition of firearm regulation.

Sounds simple enough. But how close must a modern law be to an older one to count as part of that historical tradition?

Justice Neil Gorsuch:

GORSUCH: The American Temperance Society back in the day said eight shots of whiskey a day only made you an occasional drunkard. (laughter) 

We have to remember the founding era… . John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn’t much of a user of alcohol, he only had three or four glasses of wine a night… okay? Are they all habitual drunkards who would be properly disarmed for life under your theory?

EICHER: The government says that analogy still works. Its lawyer argued that laws historically allowed authorities to restrain people considered persistently dangerous because of intoxication.

But Hemani’s lawyer called that a mistake. Her client used marijuana every other day or so, but there is no record of addiction, impairment, or intoxication while he possessed a gun.

Gorsuch seemed aligned with that:

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

REICHARD: But the government’s lawyer argued it’s only a temporary restriction.

Hemani could regain his gun rights by simply stopping his illegal drug use.

But that exchange led some justices to question whether the law actually tracks dangerousness, or mere legality.

Justice Amy Coney Barrett used a different example:

BARRETT: Let's assume that someone takes their spouse's Ambien prescription. The spouse takes it too, lawfully, with the prescription, but then, you know, you take it unlawfully because you break into your spouse’s Ambien jar. 

What is it about Ambien itself that would make one of us more likely to be dangerous? It's not, it's the lawfulness...

EICHER: That makes the government’s theory about danger a lot more difficult to explain. It led the Court into a discussion of the federal drug-classification system.

Under federal law, controlled substances are divided into schedules based on their medical uses and potential for abuse.

Schedule I drugs are considered to have no accepted medical use and a high potential for abuse. 

Marijuana is in Schedule I under federal law.

REICHARD: Schedule III drugs, by contrast, have accepted medical uses and less potential for dependence.

That matters politically, but under the gun law at issue here, it might not matter legally. And that’s because the relevant gun law bars gun possession by unlawful users of any controlled substance, no matter which schedule it’s in.

EICHER: But still, marijuana’s federal status may soon change. President Trump back in December signed an executive order directing the Drug Enforcement Administration to move marijuana from Schedule I to Schedule III.

If that happens, it weakens the government’s argument that marijuana belongs in the same dangerous category as, say, heroin or fentanyl.

Justice Barrett followed up with this to Hemani’s lawyer:

BARRETT: You win this case and Congress… conducts hearings, it hears all this evidence about the concentrations of THC and marijuana that's made today,... and then passes the same statute with findings along the lines I just sketched out. 

Can Congress do that consistently with the Second Amendment?

MURPHY: So I think you’d have to look at that evidence and decide…

REICHARD: That reference reflects one of the government’s supporting briefs.

The advocacy group Smart Approaches to Marijuana argued that cannabis these days is much more potent than in the past. That increases the risk of psychosis, schizophrenia, and impaired judgment.

So it makes sense for laws to restrict gun possession by regular users.

EICHER: But Hemani’s lawyer said the courts still have to ask whether the category Congress targets—marijuana users—aligns with the historical tradition of gun regulation.

Justice Ketanji Brown Jackson raised a similar concern:

JACKSON: The entire point, I thought, of the Bruen test was to say that the only thing the modern legislature gets to do is follow the judgments of the founding-era legislature around who was dangerous and who gets to be disarmed.

Justice Jackson suggested it’s not enough for Congress to declare today’s pot smokers dangerous. The government has to show that lawmakers in the founding era made a similar judgment about a similar class of people.

Chief Justice John Roberts worried about endless litigation over the dangers of this or that drug if Hemani wins:

ROBERTS: Well, I know your client just wants to prevail, which is understandable, but your argument, it seems to me --I mean, why doesn't it apply to any drug, whether it's PCP, methamphetamine, whatever? It seems that, again, to the extent that you're overriding the judgment of Congress and the executive branch with respect to the listing of particular drugs, I don't know why that, that same approach doesn't apply to any drug.

REICHARD: Justice Samuel Alito raised a similar practical concern. If Hemani prevails, would criminal trials turn into scientific hearings about the dangers of each and every substance?

ALITO: Would experts testify on all of these matters and the jury would decide whether the person met the test for being a dangerous person?

Justice Alito also pointed to an historical wrinkle:

ALITO: The most commonly used illegal drugs either had not been invented at the time of the adoption of the Second Amendment or the adoption of the Fourteenth Amendment. Heroin was invented in 1874. Cocaine, 1855. Methamphetamine, 1893. Fentanyl, 1959. Marijuana existed, but my understanding, yeah, hemp was grown for industrial purposes. My understanding is that it was not consumed to any degree by people in the United States until at least the beginning of the 20th century.

The justices agreed that the Founding generation accepted restrictions on guns while actively intoxicated.

But a harder question is whether that tradition can justify disarming a person based on repeat marijuana use, even when that person is sober.

If Hemani wins, and I think he will, it’ll limit the government’s ability to prosecute gun owners who are pot smokers.

That’ll affect millions of Americans who live in states where cannabis is legal under state law, but still illegal under federal law.

If the government wins, it could disarm anyone who uses a controlled substance “habitually,” even if it’s for medical reasons or in a state where it is legal.

And that’s this week’s Legal Docket!

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