The oral arguments before the Supreme Court last week in United States v. Hemani were lively and at times illuminating. But not because they clarified the Second Amendment. Rather, they showed how unworkable the court’s current framework has become.
For nearly two hours, the justices and the lawyers debated drugs, alcohol, gummies, cough syrup, Ambien, ayahuasca, anabolic steroids, and marijuana. They also wandered into the drinking habits of John Adams, James Madison, and Thomas Jefferson. (Answer: They held their own and then some.)
The spectacle was entertaining. It was also revealing, and what it revealed was the incoherence of the court’s current Second Amendment framework.
The case itself is straightforward.
Ali Hemani, a Texas resident, was charged under a federal law that makes it a crime for anyone who is “an unlawful user of or addicted to any controlled substance” to possess a firearm. Federal agents found a Glock pistol and marijuana in his home. Hemani admitted he used marijuana roughly every other day.
A federal district judge dismissed the charge, construing the statute to require being under the influence of drugs at the time of possession. The Fifth Circuit agreed. Now the Supreme Court must decide whether the statute violates the Second Amendment as applied to Hemani.
But the case arrives as the latest stop in a very peculiar doctrinal journey.
In 2022, the court adopted a new test for gun regulations. Under that framework, restrictions on citizens’ gun use are constitutional only if they are consistent with the nation’s historical “tradition” of firearms regulation, especially—though not exclusively—around the time of the founding.
That is why courts confronting challenges to gun restrictions now have to delve into antediluvian gun regulations, while also confronting a thicket of questions about which historical laws and which historical periods matter and which ones don’t.
Little wonder that the court’s guidance has produced chaos in the lower courts. Monday’s argument illustrated why.
Representing the federal government, Principal Deputy Solicitor General Sarah Harris defended the statute by invoking that historical tradition. The Second Amendment, she argued, allows the government to temporarily disarm habitual marijuana users while they continue using drugs regularly.
That is a sensible—if not irresistible—line of argument. But to frame it in terms the court demands, Harris had to analogize it to early American laws dealing with “habitual drunkards.”
From that premise followed an extended seminar on the alcohol consumption of the founding generation. Justice Neil Gorsuch took the lead. “John Adams took a tankard of hard cider with his breakfast every day,” he noted. “James Madison reportedly drank a pint of whiskey every day.” Thomas Jefferson, Gorsuch added, claimed he was not much of a drinker. He merely had three or four glasses of wine a night.
Would those men, Gorsuch asked, count as “habitual drunkards”? Would they therefore be disarmed under the government’s theory?
The justices proceeded through a parade of modern hypotheticals. What about someone who takes one sleep gummy every few nights? What about a person who uses marijuana once or twice a week? What if someone takes a spouse’s Ambien tablet without a prescription? Under federal law, that is technically unlawful drug use.
The argument stretched on for nearly two hours and featured discussion of cough syrup, prescription stimulants, sleep aids, and psychedelics, during which there was often laughter in the courtroom.
There is an element of comedy here. But it is not simply the image of baby boomers in robes talking about drug use. The justices know roughly as much—or as little—about controlled substances as the average citizen. And their questions were thoughtful and serious.
They were just aimed at the wrong issue. Why should we care whether marijuana use today resembles the drinking habits of colonial “habitual drunkards”?
The pertinent question in the case is much simpler. It is whether the drug use in question creates a meaningful risk that firearms will be used dangerously.
That is the point that actually matters. And it can be framed in two ways.
First, it may simply be the best reading of the statute Congress enacted in 1968, after the assassinations of Martin Luther King Jr. and Robert F. Kennedy. Congress sought to keep guns away from people whose behavior made them dangerous or irresponsible.
Alternatively, the Second Amendment itself may require interpreting the statute in a way that avoids unnecessary infringement of the individual right recognized in District of Columbia v. Heller and its progeny.
Either way, the focus should be the same: dangerousness, not colonial drinking customs. Imagine a simple hypothetical. Suppose scientists suddenly discovered that snuff—a tobacco product popular among the Founders—caused certain users to become violently psychotic.
Under any sensible reading of the 1968 gun law, habitual users of that substance would fall squarely within the category of people Congress intended to disarm. Not because of an analogy to colonial cider drinkers, but because the drug makes people dangerous—and dangerous people should not have guns.
That is the logic Congress relied upon. And it is the logic courts should apply.
Sometimes that judgment might require expert evidence. It might involve administrative agencies tasked by Congress with evaluating the effects of particular drugs. That is how courts—and society—should evaluate scientific questions such as when drug use becomes dangerous. But when the opinion comes down this summer, expect pages of discussion about “habitual drunkards,” founding-era drinking customs, and the elusive meaning of “historical tradition.”
The court may not affirm the Fifth Circuit outright. It could remand the case and ask the lower courts to apply its framework more carefully—in other words, to clean up the mess.
But the clean solution is sitting in plain view. The Second Amendment does not prevent the government from disarming people whose drug use makes them dangerous with firearms. Courts should apply ordinary tools of statutory interpretation to determine when that condition exists.
They should rely on expertise and evidence, not scavenger hunts through colonial history.
