Justice Neil Gorsuch, writing for himself and six other justices, said that federal prosecutors had not found a sufficient historical analogue under the court’s “history-and-tradition” test to support the prosecution. “Without more, the government asks us to analogize all such persons to habitual drunkards,” he wrote in United States v. Hemani. “To state the analogy is to expose its deficiency.”
The case began when federal agents searched the family home of Ali Hemani in 2022. The U.S. government suspected that Hemani, a Texas-born American who also has Pakistani citizenship, had ties to terrorist organizations. During the search, Hemani surrendered a firearm that he otherwise lawfully owned and told them that he regularly smoked marijuana, some of which he had in his possession. He also took ownership of a bag of cocaine that the agents found in his parents’ closet.
Before trial, Hemani sought to dismiss the indictment by arguing that it violated the Second Amendment. The Supreme Court held in District of Columbia v. Heller in 2008 that the amendment protects an individual right to bear arms. In the 2022 case New York State Rifle and Pistol Association v. Bruen, the court’s conservative majority laid out a strict new test to determine when a gun restriction runs afoul of this right.
This history-and-tradition test prompted a wave of gun-related litigation in the lower courts. The Supreme Court revisited it in United States v. Rahimi, a case challenging the federal ban on gun ownership for certain domestic abusers, to clarify that the government need not provide a “historical twin” to successfully defend a gun restriction. Instead, lower courts can uphold them by identifying a “historical analogue” to the existing law—in Rahimi’s case, for example, founding-era surety and affray laws.
The trial court and the Fifth Circuit Court of Appeals found this reasoning unpersuasive. It fared no better at the Supreme Court, in part because of the sweeping nature of what prosecutors sought. “It doesn’t matter what controlled substance an individual uses, in what amounts he does so, or whether his drug use has ever made him a danger to himself or others,” Gorsuch noted. “It doesn’t even matter why he keeps a gun or how safely he does so. And for violating this automatic ban, the government insists, an individual like Mr. Hemani may be sent to prison for up to 15 years and disarmed for life.”
“Had habitual drunkard laws applied to those who simply drank regularly, many notable early Americans could have faced trouble,” Gorsuch wrote, quoting from historians. “John Adams took ‘a tankard of hard cider’ with his ‘daily breakfast.’ Some say James Madison ‘consumed a pint of whiskey daily.’ George Washington often drank three glasses of madeira in the evening—‘not enough to be considered a heavy drinker in his day.’”
He also stated the plainly obvious: Marijuana, though legally considered a Schedule I controlled substance under the CSA, is hardly treated like one by the federal government these days. Over the last quarter-century, many states have legalized marijuana for medical and recreational use. Federal prosecutions for mere possession of marijuana have vanished, and federal regulatory agencies actively turn a blind eye to the burgeoning marijuana industry.
The court claimed that Thursday’s ruling was a “narrow one” because it did not address other contexts, including whether the government could ban “addicts” or the “presently intoxicated” from possessing a gun. This will be relevant for prosecutions involving other controlled substances, of course—drugs like heroin, ecstasy, and fentanyl pose much greater risks and more easily replicate the conditions that habitual-drunkards laws addressed.
The Bruen test “imposes on judges the unfamiliar and difficult tasks of sifting through centuries-old evidence in order to answer ‘contested historical questions,’ and ‘applying those answers to resolve contemporary problems,’” Jackson wrote, quoting from her predecessor Stephen Breyer’s dissent in Bruen. “Given those challenges, 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.”
Ironically, the author of Bruen once again wrote for himself. Justice Clarence Thomas agreed with the majority, but also urged his colleagues to reconsider the constitutionality of a broad swath of federal gun restrictions beyond this one. Those laws may be invalid, Thomas claimed, because they exceed Congress’s regulatory powers over interstate commerce. If the court agreed with Thomas’s implied view, it would be striking down federal bans on gun ownership for convicted felons and fugitives, among other groups. One can hardly blame the other eight justices for their disinterest.
In the four years since Bruen was decided, courts reached wildly different conclusions about how far the history-and-tradition test should go in changing the landscape of American gun restrictions. There are plenty of questions left to be resolved by the justices: They haven’t yet heard challenges to state-level bans on AR-15s and other so-called “assault weapons,” for example. So far, however, the post-Bruen landscape at the high court doesn’t look all that different than the one preceding it—save for, as Jackson shrewdly noted, decisions that it could’ve reached without Bruen as well.
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