Supreme Court rules marijuana use alone does not bar gun possession

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Another gun case was recently decided by the United States Supreme Court, and having created and taught a Second Amendment law course at the University of Baltimore law school for a number of years, I thought the case interesting and that criminal defense lawyers, prosecutors, judges who hear criminal cases and people interested in gun law would also find this helpful in their practices or interesting. The case was decided 9 to 0, highly unusual for a gun case at the Supreme Court. If my count is correct, there have been five gun cases decided by this court since 2008.

In this fifth chapter of the book the court is writing on gun laws, it held that being a user of a controlled substance does not automatically make someone dangerous so as to disqualify them from possession of a firearm or ammunition, even though a federal law on the books since 1968 does. Here’s what happened.

The home of Mr. Hemani, a man suspected of some terrorist activities, was raided by federal agents. Hemani turned over a gun and agents found some marijuana. He was interviewed and volunteered that he used marijuana just about every day, resulting in prosecution for possessing a gun while being an unlawful user of a controlled substance in violation of 18 USC 922 (g)(3). This was the law that Hunter Biden was convicted of violating, and was enacted by Congress in response to the murders of Martin Luther King and Robert Kennedy to restrict possession and interstate transfers of firearms.

The Second Amendment protects the rights of Americans to keep and bear firearms for self-defense, but in 2008, Justice Scalia, who authored the sea-change Heller decision, wrote that this right, like any other right, is not without restrictions. These restrictions include who, what and where. This case deals with the who and whether the federal prohibition on possession due to Hemani’s use of marijuana violated his constitutional right to possess a firearm.

In 2022, the Supreme Court imposed radical new rules to determine whether gun restrictions were constitutional. Once it is determined that a law under which the person is charged imposed restrictions on a Second Amendment right, it becomes the government’s burden to prove that the law is consistent with what the court called “the nation’s historic tradition of firearms regulation.” To do this, the government must establish that similar or analogous gun restrictions existed in the immediate period closely surrounding 1791, the time the Constitution was ratified.

It’s originalism at its best for originalists, because this rule is intended to prevent legislatures and courts from enacting new restrictions on inherent rights that were not considered necessary in the colonies. This rule applies even though the colonists could never have imagined American cities containing over 10 million people or the types of weapons that are easily available today.

If the government meets its burden, the restriction is constitutional and will be enforced. If the government is unable to do so, the restriction is not constitutional and is inconsistent with the nation’s regulatory tradition and will not be enforced.

Section 922(g)(3) serves to automatically ban possession from the moment a person becomes a user of an illegal controlled substance and remains in place until that person ceases use. Types of drugs, amounts and frequency of use matter not to the government. It’s a use-it-and-lose-it statute.

There being no relevant drug-related experiences to rely on in colonial times affecting the possession of firearms, the government had to analogize drug use to alcohol abuse, and it attempted to do so by applying prohibitions that were imposed in some colonial jurisdictions against possession of guns by “ habitual drunkards.” The court rejected the government’s efforts to analogize alcohol and drug use for the following reasons.

First, an habitual drunkard, a person whose ordinary abilities to reason were impaired due to drinking, who was incapable of conducting his own affairs, and was therefore mentally incompetent having lost the power of self-control, the court reasoned, was quite different than the government’s assumption that a person who smoked marijuana on Tuesday and planed to do so the following Monday should be placed in the same category on Friday.

The government also tried to rely on colonial vagrancy laws, claiming that sops were vagrants, claiming colonialists believed vagrants were a danger to the public. The government was not able to connect the dots and the court disagreed here also, holding that vagrancy laws were intended to protect the vagrant from themselves and not other people from the vagrant.

And finally, the statute’s automatic prohibition and possession due to any drug use eliminated any level of due process other than the ability to defend oneself at a criminal trial once arrested and charged. The court held that during colonial times, even a person said to be a habitual drunkard was provided some form of due process before they lost any liberties.

Sure, the government and the Supreme Court want to disarm people, even categorically, who are violent and considered to be “unusually dangerous,” as the court recognized when it wrote Chapter 4 with its U.S. v. Rahini decision. But as to marijuana, Mr. Hemani cited the government’s own regulatory activities against it because the DOJ was curtailing its enforcement efforts against marijuana users, and even the president has come out recently in favor of legalization.

Unusually dangerous (as opposed to dangerous) people can still be prohibited and prosecuted if they violate section 922, which contains nine categories of prohibitions. The Supreme Court has so held because it held this decision is narrow and intended to address only the facts presented, although it will be used by criminal defense lawyers when their clients are charged under the other prohibitions found in section 922, as well as for drug usage.

Those under the effects of the use of drugs at the time they possess a firearm can be charged, and the court also left open the door for Congress to enact some sort of due process legislation that would require the government to establish that a user was a danger to himself or others before applying a prohibition.

Being a danger to others or oneself is the key to the enforcement of Section 922 and it’s going to bring some interesting results. For example, the first prohibition (g)(1) applies to people convicted of crimes for which there is a penalty of incarceration in excess of one year, regardless of whether the person serves time. That would encompass a person who used a gun in a robbery … dangerous … and a person who used a pencil to commit fraud …dangerous?

Or a person whose constitutional rights to possess a firearm have been removed because they were dishonorably discharged from the Armed Forces, regardless if the reason was assault with a deadly weapon, or repeated failure to follow orders and disrespect for superiors, (g)(6). The question that will be addressed in subsequent cases is whether a nonviolent offender who may not be the most upright citizen can be denied an inalienable constitutional right if the government cannot establish that that person would be a danger if they possessed a firearm.

Jim Astrachan is a counsel to Corey Tepe LLC and has taught intellectual property law in the two Maryland law schools since 1999.