The Supreme Court agreed Monday to decide another Second Amendment case this term, taking on the question of whether a federal law that bars gun possession by anyone who is “an unlawful user of or addicted to any controlled substance” violates the Constitution.
The gun case joins another one the justices already put on the docket for this term, regarding concealed carry on private property open to the public. After the court holds hearings in both cases later this term, separate decisions should come by early July, providing a clearer picture of the court’s latest firearms stance overall. It takes four justices to grant review of an appeal.
The new case granted review Monday is United States v. Hemani. It arises from the federal prosecution of Ali Danial Hemani, whose case, the government said, was based on his gun possession alongside his “habitual use of marijuana.” The Trump administration urged the justices to review the dispute after the U.S. Court of Appeals for the Fifth Circuit said the law is unconstitutional as applied to Hemani.
To be clear, the administration is urging the justices to uphold a gun regulation in this context. In doing so, the government said the case presents “an important Second Amendment issue that affects hundreds of prosecutions every year: whether the government may disarm individuals who habitually use unlawful drugs but are not necessarily under the influence while possessing a firearm.”
The gun-and-drug issue surfaced in the case of Hunter Biden before his father, former President Joe Biden, granted his son clemency.
I previously flagged Hemani’s case as one that could land on the high court docket this term. I noted that although the Republican-appointed majority has broadly endorsed personal gun rights in significant cases this century, the court hasn’t fully backed such rights in all circumstances. Last year in United States v. Rahimi, the court ruled 8-1 (over dissent by Justice Clarence Thomas) that the Constitution allows temporarily disarming people who’ve been found by courts to pose credible threats to the physical safety of others. In Rahimi, the court sided with the government in applying its new test from a Thomas-led 2022 precedent called Bruen, which said gun regulations can’t stand unless they’re “consistent with this Nation’s historical tradition of firearm regulation.” In Hemani’s case, the justices will now apply Bruen’s historical test to modern-day drug use. Under that test, courts look to analogous historical circumstances when dealing with modern issues. Unsuccessfully opposing Supreme Court review, Hemani’s lawyers wrote that the “critical distinction” noted by the 5th Circuit is that the historical analysis under Bruen reveals “laws banning carrying weapons while under the influence of alcohol, but none barred gun possession by regular drinkers.” How the high court approaches the issue should become clearer at the hearing later this term. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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