The sole case before the Supreme Court on Monday, March 2, will be a long-overdue collision between the Second Amendment and the drug war. In US v. Hemani, justices will decide whether federal laws prohibiting the “possession of firearms by a person who is an unlawful user of or addicted to any controlled substance” violate the Second Amendment.
Like abortion or religion in the public square, gun cases always pack the house at the Supreme Court, and this one offers another angle of interest – a hard split in the conservative and libertarian coalition that led to President Donald Trump’s election. Mr. Ali Hemani was prosecuted not for being intoxicated or high while armed, but for being a person who had used marijuana as a gun owner. It’s a nuance that means everything to the constitutionally-minded, even if it seems to be a distinction without a difference to more traditional observers.
Hemani’s case is supported by friendly briefs from a panoply of gun rights groups, as well as criminal justice reform advocates and drug war opponents. They broadly argue that since the 2022 Bruen decision, any gun law must pass a test showing it was grounded in how and why the Founders regulated guns. And that while the Founders’ vision of liberty includes sanction for using a firearm while impaired, it does not allow for categorical bans for those who simply sometimes choose impairment while being able to possess firearms. “It is grounded in history: the Founders regulated firearm use by the presently intoxicated, not status-based categories of past users,” a brief from the National Association of Criminal Defense Lawyers reads.
Gun Rights for Whom?
Marijuana holds a unique position in the law relative to other psychoactive compounds, as it is often legal at the state level but forbidden by the federal government. Yet it is not prosecuted, even though it is felonious! Under federal law, any marijuana possession is illegal – even a single joint. The government used to prosecute people for weed all the time – even in the most sympathetic cases, and using the most underhanded of tactics. If Hemani’s prosecution stands, we could see a return to such practices, reanimating a fight on the right over marijuana.
Conservative icon William F. Buckley Jr. called the imposition of federal marijuana laws “fanatical,” as he memorialized Pete McWilliams, an AIDS patient who died from lack of effective anti-nausea medication. President Barack Obama halted these prosecutions in 2013, promising not to bring charges when state law was not broken. That policy remained in place until President Trump’s Attorney General, Jeff Sessions, withdrew it in January of 2018. Sessions was notoriously hostile to relaxing marijuana prohibitions and planned to fire up those prosecutions in earnest. And that likely would have been the policy had it not been for former Colorado Senator Cory Gardner (R). The Republican used procedural hurdles to hold up all DOJ nominees until Trump agreed to abide by the limitations put in place by the Obama administration.
Having a vast array of marijuana laws in place at the federal level, which are used or not at the whim of those in power, is toxic to the republic. The decision to prosecute is political – all the more reason to keep the options as narrow as required for liberty to flourish. So far, Congress hasn’t had the interest or will to set a course correction – one way or the other. Can the High Court?
What may be fascinating, however, is how the different groups of justices approach both oral arguments and the decision itself. Will members of the Court’s left bloc react with more sympathy to the defendant or the gun control crowd? It’s easy to expect that at least one conservative justice would vote for Mr. Hemani – and to expect one to rule in favor of the government. Oral arguments begin shortly after 10 a.m. and are accessible via the Court’s website.
