On March 2, the justices will hear the second major Second Amendment case of the Supreme Court’s current term. United States v. Hermani Ask Congress if it could make it a crime for “illegal users” of marijuana to possess firearms.
If you’re a lawyer trying to guess how the court will rule on this case, good luck to you. The Supreme Court’s Second Amendment precedent is both confusing and irredeemable. In theory at least, they require judges to ask whether modern gun laws are sufficiently similar to those of more than 200 years ago. But the rules appear to change depending on whether a majority of judges actually think a particular gun law is a good idea.
That said, there is a sensible way for courts to address this issue Hermani No need to wade into this historical morass. Again, controversial federal law Hermani Prohibits “unlawful users” from possessing firearms containing “any controlled substance” such as marijuana. But what does it mean to smoke marijuana illegally?
If someone smoked a joint in college, decided they didn’t like marijuana, and never smoked it again, would they be permanently banned from owning a gun? So what if a person drinks with her cousins every Thanksgiving but otherwise doesn’t smoke? If this law doesn’t permanently ban people who have ever smoked marijuana from owning guns, when will prohibition end? If someone took a puff at a party in February, would they reinstate gun rights in March? November? What about those who regularly smoke marijuana? If someone takes weed gummies a few times a month to help them sleep, will they be banned from owning a gun? How about the guy who smokes an e-cigarette every other Saturday?
As attorneys for defendant Ali Hemani stated in their briefs, federal appeals courts have grappled with answering these questions and have come up with different answers. This is a serious constitutional issue because the Supreme Court has long held that due process is violated when the government “deprives someone of life, liberty, or property under a criminal law so vague that it fails to fairly impart to the public at large the conduct it punishes.”
In other words, the Supreme Court can strike down vague laws Hermani There is no need to delve into the unanswerable question of whether the law violates the Court’s unfathomable Second Amendment precedent.
Supreme Court Second Amendment jurisprudence is both confusing and poorly drafted
The Second Amendment states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
And, until recently, courts took the first 13 words of the amendment seriously. As the court stated in United States v. Miller (1939), the amendment’s “apparent purpose” was to “make possible the effectiveness of militias” and therefore must be “construed and applied with that purpose in mind.”
But the Court abandoned this textualist approach to the Second Amendment District of Columbia v. Heller (2008), which argued that a “core component” of the right to bear arms is an individual’s right to own a firearm for “self-defense.”
Fourteen years later, in New York State Rifle and Pistol Association v. Brunn (2022), the Supreme Court’s Republican majority announced a new legal framework that applies only to Second Amendment cases and is unlike any other in the Constitution.
At least on the surface, Brun Government lawyers defending the gun laws are asking them to “demonstrate that the regulations are consistent with this country’s historic tradition of gun control.” To do this, lawyers must show that the gun laws they defend are closely similar to “similar statutes” that existed when the Constitution was written.
But the Supreme Court has struggled to explain how similar modern laws must be to older ones to survive. and some of its afterBrun Action raises doubts about court’s suitability Brun Sincerely.
First, in United States v. Rahimi (2024), eight justices upheld a federal law barring people subject to domestic violence restraining orders from possessing firearms. This is a wise law.
but Brun argued that modern gun laws are particularly questionable when they address “a pervasive social problem that has existed since the 18th century.” While violence between romantic partners did exist in the 1700s, there were no laws to disarm domestic abusers. In fact, no state criminalized spousal beating until the Alabama Supreme Court made it a crime in 1871.
Apply strictly Brunin other words, may ask the court to strike down the controversial law Laxmi. All but one judge joined Brun The decision was hesitant at this dire outcome. But this shows that they cannot accept the consequences of their decisions Brun.
Then, in January, the Supreme Court heard oral arguments Wolford v. Lopeza challenge to Hawaii’s law that prohibits gun owners from bringing weapons into private businesses without the owner’s permission. There are many historical examples of similar laws from the 18th century, including a law in New Jersey that prohibited a person from taking a firearm onto another person’s land “unless he has the permission or written permission of the owner,” and similar laws in Pennsylvania and New York.
But Republican judges said during oral arguments they would strike down Hawaii’s law anyway.
From this point of view, historical research requires Brun does not actually determine how courts decide Second Amendment cases. Instead, judges appear to decide these cases based on whether they think the law being challenged is a good idea.
If there is a framework of principles to be found BrunAlso, actual judges have a hard time finding it. in unanimous opinion Laxmiciting more than a dozen judicial opinions, Judge Ketanji Brown Jackson complained, in the words of a Trump judicial appointee, Brun“Inconsistent and amorphous standards” simply won’t work.
Therefore, if the judge applies Brun The legal framework Hermaniit’s anyone’s guess how the court will rule on the case. My best guess is that they may insist on this because the Trump administration filed a brief asking them to do so, which is a good sign that Republicans believe marijuana users should be banned from owning guns.
But I have little confidence in this conjecture, because all subsequent Second Amendment cases Brun is a lawless zone, seemingly determined by the personal preferences of judges.
Hermani’s vague argument offers judge a smarter way to resolve the case
instead of trying to solve Hermani within Brunof opaque frames that judges can avoid Brun Repeal “illegal user” law on grounds of vagueness. One sign that the law is too vague: Federal appeals judges couldn’t agree on the definition of an “illegal user” of marijuana.
For example, the U.S. Court of Appeals for the Third Circuit ruled that a person who used drugs once and possessed a gun six hours later could not be convicted—holding that “regular drug use is required to support a conviction” under the “unlawful user” provision.
The Sixth Circuit, meanwhile, required prosecutors to show that the defendant’s drug use was “sufficiently sustained, ‘chronic,’ and proximate to the time he owned a firearm to put him on notice that he qualified for illegal drug use.”
In contrast, the Eighth Circuit held that prosecutors were not required to present “evidence of long-term use.” Rather, it was sufficient to prove that the defendants used drugs “while they were still in possession of firearms.”
The Trump administration believes the term “illegal user” should be understood to apply to “habitual drug users.” This seems to be an attempt to bring the law into line Brun Framework, because early American law criminalized “habitual drunkenness.”
Therefore, there is a strong argument that the law is vague and unconstitutional. If the court disposes Hermani On these grounds it would at least exempt them from the application of the arbitrary legal tests set out in the Convention. Brun.
