The Supreme Court’s upcoming term is already stocked with important cases on several hot-button issues, such as voting rights, campaign finance, transgender sports participation and more. The justices add cases to their docket on a rolling basis, and one of the next appeals could be another controversial one, involving guns and drugs.
The Justice Department is pressing the high court to take a Second Amendment case about a federal law that bars firearm possession by a person who “is an unlawful user of or addicted to any controlled substance.” The issue is due for consideration in the court’s Sept. 29 private conference.
That conference recently made headlines because it’s when the justices will consider whether to review Ghislaine Maxwell’s appeal over the scope of Jeffrey Epstein’s unusual non-prosecution agreement.
While Maxwell’s case is far from a sure thing for review — it takes four justices to agree, and they reject most petitions — the Second Amendment issue presents a more likely candidate, at least as it’s presented by the DOJ.
In its petition in the case of Ali Danial Hemani — whose prosecution, the government said, is based on his “habitual use of marijuana” — the Trump administration urged the justices to grant review because a lower court said the gun law is unconstitutional. The petition said the high court “has recently and repeatedly reviewed decisions invalidating federal statutes even in the absence of a circuit conflict.” The administration also said there is such a circuit conflict, meaning different federal appeals courts around the country ruling on an issue differently, leaving it to the justices to resolve the dispute nationwide.
Hemani’s lawyers oppose Supreme Court review. They said the U.S. Court of Appeals for the 5th Circuit correctly held that the federal law is unconstitutional as applied to their client. They further said the government’s petition “misrepresents the facts of Mr. Hemani’s case and the [appeals court] decision below”; they said that the 5th Circuit didn’t invalidate the federal law in all its applications and that there’s no circuit split needing resolution.
In a final reply brief ahead of the Sept. 29 conference, U.S. Solicitor General John Sauer maintained that the appeal “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.”
Though the government’s petition is a plausible candidate for review, it’s ultimately up to the justices whether and when to step in. Notably, they haven’t taken every Second Amendment appeal presented to them over the years, to the chagrin of gun rights advocates and some of the justices, such as Clarence Thomas, who lamented upon the court’s declining to consider a different gun appeal in June that the right to bear arms remains a “second-class” one without the court’s vigilance in enforcing it. And even if the court takes the Hemani case or another one presenting the drug issue, there’s no guarantee of how it would come out. Though the Republican-appointed majority has endorsed personal gun rights in significant cases this century, its rulings have raised tricky questions about how far its new gun precedents go. For example, in a gun case last year, United States v. Rahimi, a lopsided court ruled 8-1 that the Second Amendment permits temporarily disarming people who have been found by a court to pose a credible threat to the physical safety of another person. The lone dissenter was Thomas. The mix of guns and drugs could pose another practical conflict for the justices, like domestic violence apparently did in Rahimi, even when it comes to the increasingly politically tolerated cannabis. We could learn in the fall whether the court is nonetheless inclined to add this one to the docket. 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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