Hemani Opinion Published

[John Kloehr]

https://www.supremecourt.gov/opinions/25pdf/24-1234_g2bh.pdf

 

Hemani wins. Occasional use does not disqualify firearms possession.

 

The ruling is narrow. It deals only with occasional use. It does not deal with all drugs generally, or with active intoxication. It does not touch the question of addiction.

 

No dissents. Several concurrences from various judges. I may provide some analysis of those later. Will also try to find out which petitions in the backlog get GVRed based on this ruling.

 

On edit: Any GVRs will likely be in the periodic orders list following the scheduled conference, the next regular orders list will be on Monday.

Edited June 18 by John Kloehr

[Subdeacon Joe]

From the CRPA Facebook:

 

The Supreme Court has just released a unanimous opinion in Hemani v. U.S. holding that stripping 2A rights from a marijuana user is inconsistent with the Second Amendment.

 

CRPA President Chuck Michel noted: "Today's decision is narrow in its holding but useful in its reasoning. It does not facially invalidate 18 U.S.C. § 922(g)(3), nor does it decide challenges to felon-in-possession, domestic violence, mental health, fugitive, immigration-status, or other prohibited-person bans. The Court expressly says it does not address § 922(g)(1) felon disarmament, addicts, presently intoxicated persons, drug-specific prohibitions, or prosecutions supported by individualized proof of dangerousness. That said, the opinion gives challengers a strong framework for attacking automatic, categorical possession bans where the government relies on generalized dangerousness rather than historical analogues that match both the “why” and “how” of the modern law."

 

Stay tuned for more!

[John Kloehr]

Wonder how and when the 4473 question will get updated. The current language is:

 

"

 

Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

 

"

[Subdeacon Joe]

My guess is either

 

"Are you a habitual unlawful user..."

 

Or

 

"Are you addicted to..."

[Subdeacon Joe]

The decision:

 

24-1234_g2bh.pdf https://share.google/nOQCpSTEoK2tNCMZc

 

Fairly short. 

[John Kloehr]

Finally getting a chance for a close read of the opinion. First I'll start by repeating my earlier prediction and reasoning. I predicted a likely narrow win as conservatives don't like drugs and liberals don't like firearms. As result, I had no clue as to how any particular justice would rule. A 9-0 opinion was therefore a surprise. I also predicted a narrow opinion, which this is.

 

Hemani is not a very sympathetic figure, the government chose him for this appeal for that reason. In addition to marijauna, a search found cocaine and evidence of drug dealing, and separately possible ISIS sympathies. But the government did not charge these allegations as crimes and one of the justices dispensed with all of the other stuff in the first minute of oral argument. This ruling is only looking at the proven facts which is Hemeni admitted to occasional use of this one drug and had a firearm.

 

A recent FPC post summed it up nicely. Even with hand-picking a defendant, the government lost big-time. The justices write four parts in the opinion:

 

"

 

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, SOTOMAYOR, KAVANAUGH, BARRETT, and JACKSON, JJ., joined.

THOMAS, J., filed a concurring opinion.

JACKSON, J., filed a concurring opinion, in which SOTOMAYOR, J., joined.

ALITO, J., filed an opinion concurring in the judgment, in which KAGAN, J., joined.

 

"

Noting Jackson, Sotomayor, and Kagan are generally on the liberal side of issues, the crossover joinings are interesting. Also of note is Kagan did not join Jackson's concurrence. Thomas and Alito did not joint the main opinion, writing separately.

 

First the main opinion, in which all liberals joined. At the core. it says:

 

"

We appreciate that drugs and guns can sometimes make for a dangerous mix. We appreciate, too, that the government’s effort to analogize a modern statute addressing drug use to historical laws must be approached with a sensitivity to the fact that many drugs well known today were unknown in early America. As we have put it, the Second Amendment “can, and must, apply to circumstances beyond those the Founders specifically anticipated.” Bruen, 597 U. S., at 28. But, even taking all that into account, the government cannot carry the burden it has set for itself.

...

... it seems the government’s historical laws targeted habitual drunkards not merely because they regularly used intoxicants, or even sometimes used them to excess. Instead, those laws focused on habitual drunkards because their drinking rendered them practically incapacitated and incapable of managing their affairs.

"

 

The opinion goes on to shred the rest of the government arguments with even greater force. Finally, we do get to the limits of this narrow ruling:

 

"

 

We do not address efforts to ban addicts, see n. 2, supra, or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms. See n. 6, supra. We do not address 18 U. S. C. §922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). ibid. We do not even address whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.

 

"

 

And once again in a footnote, remarks the question of interpretation between 1791 and 1868 is of no relevance in this case, as there was no difference between those times.

 

Now the Thomas concurrence. He begins:

 

"

 

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.

 

"

He writes to express a different line of reasoning, one he has ruled on in the past:

 

"

 

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.

...

 

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.” Alderman v. United States, 562 U. S. 1163, 1167 (2011) (THOMAS, J., dissenting from denial of certiorari).

...

 

... while the issue was not presented in this case, the Court, and lower courts, should revisit the constitutionality of §922(g).

...

 

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.

 

"

 

Now for Jackson, with Sotomayor joining. Kagan does not join, while liberal leaning, she is a philosophically a textualist. Jackson, on the other hand, dislikes the text and history approach and favors the previous interest balancing test.  She begins:

 

"

 

I join the Court’s opinion in full because it correctly applies our decisions in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), and United States v. Rahimi, 602 U. S. 680 (2024).

 

"

 

Ok. She continues:

 

"

But I continue to believe that we veered off course in Bruen. See Rahimi, 602 U. S., at 741 (concurring opinion). I write separately to emphasize that means-end scrutiny—the approach courts applied before we adopted Bruen’s “history and tradition” metric—offers a more rational way of assessing the constitutionality of firearm regulations. As I and others have elsewhere explained, Bruen is unworkable.

...

 

... it is unsurprising that Bruen’s test is vulnerable to inconsistent and arbitrary application, as judges draw different conclusions from the same historical evidence and reach divergent assessments of the same laws. See Rahimi, 602 U. S., at 743 (JACKSON, J., concurring).1 Perhaps worst of all, Bruen leaves no room to consider “the real and present stakes of the problems facing our society today.” Rahimi, 602 U. S., at 706 (SOTOMAYOR, J., concurring). 

...

 

... the Court’s discussion implies that §922(g)(3)’s operation is not sufficiently tailored to the government’s stated purpose— precisely the issue to which means-end scrutiny would direct our focus.

"

So this strongly implies she would have come to the same conclusion under either test. Yet she herself writes a footnote worthy of noting:

 

"

——————

2 I opine only on the mechanics of the means-ends test; what result that test would produce here is not before us, since neither party asks us to overturn Bruen and apply means-ends scrutiny.

 

"

This is where it would be good to look at a certain dissent filed in the 9th circuit directly attacking the means-end or interest balancing test. [I'll do so later in this post] Nothing in what Jackson wrote shows the test would have the same result, she simply argues it would be an easier to reach "the" result. Out of fairness, I do note means-end or interest balancing is part of other rights analysis, at least in the past. That does not mean it is best when the courts with to take a position outside the law, it can work well when the courts do not try to legislate.

 

Finally, we have Alito with whom Kagan joins. The main takeaway reinforces this was an as-applied ruling. It does not overturn any law. it does not establish a clear edge, only that the edge is nowhere near to this case:

 

"

The mismatch between the Government’s historical analogues and the theory on which the Government defends the constitutionality of §922(g)(3) as applied to respondent is clear. 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.

...

 

In these circumstances, marijuana use today is like alcohol use at the founding. It is widespread and increasingly considered socially acceptable in many quarters. And from a practical standpoint, law enforcement widely tolerates the use of marijuana. These similarities underscore the deficiency of the Government’s analogues. To succeed, the Government would need to identify a regulatory principle that justified disarmament of persons who are relevantly similar to the occasional marijuana user.

"

 

Which is all another way of telling the government is it actually wants to disarm someone, it needs to prove a good reason. I read this last concurrence as a PC way of telling the government if next time some guy is actually an ISIS sympathizer worthy of disarming, prove that and not some unrelated activity convenient in law.

 

Getting back to Jackson and her preference for the discarded test. Thinking back on Duncan v Bonta, now at the Supreme Court for the second time, Justice Van Dyke wrote a dissent (largely agreeing with the Bumatay dissent) but focusing on the mechanics of making a decision under interest balancing. This opinion is at:

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/30/19-55376.pdf

 

Will need to scroll way down to page 143 to find the dissent. Some key passages:

 

"

... to paraphrase James Madison, if judges were angels, nothing further would need be said. But unfortunately, however else it might be described, our court’s Second Amendment jurisprudence can hardly be labeled angelic. Possessed maybe—by a single-minded focus on ensuring that any panel opinions actually enforcing the Second Amendment are quickly reversed.

...

 

In analyzing whether California’s magazine ban violates the Second Amendment, the majority here follows a now well-traveled path. It starts like many of our Second Amendment cases: by assuming, instead of deciding, that the Second Amendment even applies to California’s ban.

...

 

The reason it is so effortless for our court to “assume” that the Second Amendment applies is because the plaintiff will always lose at our court’s step-two intermediate scrutiny.

...

 

... at step two it concludes that banning the most commonly purchased magazine used in handguns for self-defense only places a “small burden” on the exercise of the right to bear arms and thus only intermediate scrutiny applies. And by this point we all know what that means: the regulation burdening the citizens’ Second Amendment rights always wins under our version of Second Amendment “intermediate scrutiny.”

...

 

Judge Hurwitz has penned a short concurrence respectfully characterizing as inappropriate and hyperbolic my observations regarding how my colleague’s personal views influence our court’s Second Amendment cases. I agree that it is a troubling charge to posit personal views as a driving force behind judicial decision-making, and not one I make lightly. But whatever else it may be, my claim is hardly hyperbolic. Here are the facts: We are a monstrosity of a court exercising jurisdiction over 20% of the U.S. population and almost one-fifth of the states—including states pushing the most aggressive gun-control restrictions in the nation. By my count, we have had at least 50 Second Amendment challenges since Heller—significantly more than any other circuit—all of which we have ultimately denied. In those few instances where a panel of our court has granted Second Amendment relief, we have without fail taken the case en banc to reverse that ruling.[1]

 

"

And this, for Jackson to think about, is why history and tradition, for all of its legitimate challenges, is better than a means-end interest balancing test. She should be familiar with this dissent since Duncan is back at the Supreme Court for the second time.

 

[1] There is now one case where the 9th struck down a 2A restriction. It struck down the California vampire rule as too limited for granting permission, but upheld the Hawaii law as not as restrictive. Ruling on this expected soon. Also expected as a 2A win.

 

Edited June 21 by John Kloehr
formatting, and sorry for the small print quotes, it comes over that way from the opinions and hard to fix that quickly

[Blackwater 53393]

Thanks for dissecting the ruling!  It will be interesting to see if this first step leads to further action on other aspects of this legislation!

[Subdeacon Joe]

Another big THANK YOU for the skull sweat you put into your posts.