A Second Opinion is a recurring series by Haley Proctor on the Second Amendment and constitutional litigation.
Last Monday, the Supreme Court heard argument in United States v. Hemani. In that case, Ali Danial Hemani argues that the Second Amendment forbids his prosecution for possessing a firearm as “an unlawful user of” marijuana because disarming people for mere drug use is inconsistent with “the Nation’s historical tradition of firearm regulation.”
What is at stake in Hemani is not whether the government may criminalize mixing guns and drugs. There is a long tradition stretching back to the founding of regulating the use of firearms while under the influence of intoxicating substances. But there is nothing in the record to suggest that Mr. Hemani carried a firearm while high, and the United States would not have to prove that he did. Rather, the law under which it indicted him prohibits a person from possessing firearms at all times because he sometimes uses drugs. Fitting such a law into the historical tradition is more complicated. Hemani’s challenge therefore presents an opportunity to explore what it means for a modern gun control law to fit within a historical tradition of firearm regulation.
The how-and-why framework
In the 2022 case of New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that, in order to regulate conduct falling within the plain text of the Second Amendment, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” What does in mean for a regulation to be “consistent with” a historical tradition?
Of course, if a modern regulation has a founding-era “historical twin,” and that twin is part of a widespread regulatory practice, then it will be relatively easy to conclude that the Second Amendment permits it. But as the court recognized in Bruen, “[t]he regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791.” When reviewing a “modern regulation” that would be “unimaginable at the founding,” courts must reason “by analogy.” To take a simple example that does not involve firearms, if we are trying to understand something about transportation, and we discover that the people of 1789 traveled by horse, then a horse in 1789 might be analogous to a car today. The metric for drawing this analogy is the use to which the item is put (in that example, to get around).
Bruen identified key metrics for analogical reasoning in the Second Amendment context: how and why. “[W]hether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are ‘central’ considerations when engaging in an analogical inquiry.”
The court applied this framework two years later, in United States v. Rahimi. The question in that case was whether a federal law that disarms those under a domestic violence restraining order is consistent with our nation’s historical regulatory tradition. Because there was no recognizable “historical twin” for the modern law, the court had to engage in analogical reasoning. It reaffirmed that “why and how . . . are central to this inquiry,” because they illuminate “the principles that underpin our regulatory tradition.” Put differently, they help us to see how the Founders believed that the right to keep and bear arms limited their regulatory authority.
In Rahimi, the court identified two categories of historical laws – surety laws (requiring those suspected of threatening violence to post a bond to secure their good behavior) and “going armed” laws (prohibiting carrying arms “in such a manner as to strike terror to the people”) – that revealed a historical tradition of temporarily disarming those found to pose a “clear threat of physical violence to another.” Because the federal law at issue in that case kicked in only upon an individualized determination that the person “represents a credible threat to the physical safety” of an intimate partner or child, the court concluded that the law was consistent with that regulatory tradition. Critically, the regulatory tradition the court identified was defined both by its “why” – to combat a “clear threat of physical violence” – and its “how” – disarmament upon an individualized adjudication, and only for the duration of the threat.
How and why in Hemani
While it is easy enough to imagine a drug user who poses a clear threat of physical violence, the law at issue in Hemani does not fit the tradition the court identified in Rahimi because its “how” is different. When the United States prosecutes someone under the law, it must show that that person is “an unlawful user of” a “controlled substance.” What exactly that means is problematically unclear, but one thing is clear: the statute does not require the government to prove that the individual’s drug use creates a present threat of physical violence. It is therefore unlike the ban in Rahimi, which requires an individualized finding that the person is a threat.
The United States acknowledged that it classifies drugs as “controlled substances” (whose unlawful use triggers the firearms ban) without making a specific finding that using the drug makes a person dangerous. Still, it argues that Congress can make a categorical judgment that drug users pose a threat to public safety and ought to be disarmed as a group because the controlled-substance classification is tantamount to a finding of dangerousness.
The government cannot argue that Founding-era legislators made a similar categorical judgment, largely because recreational drug-use was not a problem they confronted. (As Justice Samuel Alito pointed out at argument: “Heroin was invented in 1874. Cocaine, 1855. Methamphetamine, 1893. Fentanyl, 1959. Marijuana existed, but . . . it was not consumed to any degree by people in the United States until at least the beginning of the 20th century.” Opium, however, was widely used.) Instead, the government analogizes to Founding-era laws providing that “habitual drunkards” could be confined and thus, implicitly, disarmed.
At argument, some of the justices expressed skepticism about the relevance of the habitual drunkard tradition. Justice Neil Gorsuch pointed out that mere use of alcohol did not make a person a “habitual drunkard.” After all,
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 …
(In their defense, “[p]otable water was scarce.”) Justice Ketanji Brown Jackson picked up his thread, asking whether Congress is bound by “the historical legislature[’s]” judgment “that someone who only drinks or takes an intoxicant once every . . . other day” is not a “habitual drunkard” and thus not “dangerous.” If so, the tradition does not support Mr. Hemani’s prosecution.
The how-and-why framework can give structure to the justices’ instinct that there is a mismatch here. An amicus brief by the Center for Human Liberty shows how, and why.
That brief reveals that there are two distinct drunkard-related practices that the government is trying to tap into. First, some civil-commitment laws permitted confinement (not disarmament) of “habitual drunkards.” But the “why” of these laws differs from the “why” of the law at issue in Hemani. “[R]ather than protecting public peace and safety, these laws were wholly designed to protect the property of the habitual drunkard.” The laws are therefore disanalogous in a way that matters for Rahimi’s test. The court in Rahimi reasoned that “if imprisonment was permissible,” then “the lesser restriction of temporary disarmament” is, too. But that conclusion followed only if the purpose of the imprisonment was “to respond to the use of guns to threaten the physical safety of others.” Where, as here, restrictions on liberty instead respond to concerns about a person’s ability to manage his property, disarmament does not follow as a matter of logic.
Second, “there is some evidence that magistrates at the Founding had authority to imprison or otherwise confine individuals whose intense addiction to alcohol placed them in the judicial category of ‘common drunkards.’” Unlike “habitual drunkards,” “common drunkards” were thought to pose a threat to “public peace and good order.” It is not clear that the practice of preventive confinement was widespread enough to constitute a tradition, but if it was, its “why” may be analogous to that put forth by the United States in support of the modern “unlawful user” ban. The “how,” however, was decidedly different: confinement followed only upon a particularized finding that the individual’s alcohol use made him a danger to others.
The upshot is that neither of these traditions provides adequate support for applying the law to Hemani, at least based on the facts that are in the record (that he used marijuana roughly every other day). A question naturally presents itself, though: is it possible to mix the “habitual drunkard” how with the “common drunkard” why? In other words, to justify disarming someone on a finding of “habitual” drug use in order to preserve “public peace and good order.”
It is not clear that mixing-and-matching would save the government, given that habitual-drunkard confinement depended on a level of intoxicant-induced incapacitation that the government has not shown for Mr. Hemani. (In Justice Sonia Sotomayor’s words, you qualified as a “habitual drunkard” only if “[y]ou weren’t . . . acting responsibly towards your family. You were sleeping in the streets.”) Still, this case would present a good opportunity for the court to clarify that such mixing-and-matching is not an appropriate means of “recovering the historical understanding of the right.”
As Justice Clarence Thomas explained in his Rahimi dissent, “relying on one law’s burden and another law’s justification . . . defeats the purpose of a historical inquiry altogether.” After all, it is possible to find a law imposing any burden – up to and including death – and to find a law regulating for most “health, safety, and welfare” purposes. The question, though, is whether this justification supports this level of burden.
This does not mean that Congress may never make categorical judgments about dangerousness. Counsel for Hemani acknowledged that the properties of some drugs could make anyone who takes them dangerous at any time. For its part, the United States conceded that the courts need not simply accept Congress’ categorical judgments about danger. (This is a reversal of the government’s position in Rahimi and is necessarily correct. Just as in other areas of constitutional law, it would rid the Second Amendment of substance if the government could simply define away its central protections by labeling behavior “dangerous.”) Given this, it will be interesting to see how much guidance the court provides to guide review of categorical judgments in the future. But, for the present case, Bruen’s how-and-why framework may be enough to get the job done.
Disclosure: The author is Of Counsel at Cooper & Kirk, which filed the amicus brief on behalf of the Center for Human Liberty. The views expressed here are her own.
