Do you like to smoke weed? Do you also enjoy firearms? If so, the Supreme Court has good news for you.
On Thursday, the Supreme Court did United States vs. Heman that the federal government cannot completely prohibit an “illegal user” of marijuana from owning a gun. Tabernacle it also has wider implications for many drug users.
As Justice Neil Gorsuch notes in the majority opinion, the federal law at issue in the case prevents illegal users of “any controlled substance” from possessing firearms. This law, he points out, is too broad, because it would imprison innocent drug users such as “the husband who regularly takes his wife’s Ambien prescription to sleep and the college student who regularly uses his friend’s Adderall to take a test.”
So, down TabernacleIt seems that many people who use prescription drugs or other drugs in illegal ways can now own guns.
Gorsuch’s majority opinion suggests that the government can ban some drug users from owning guns if it can show that those drug users may engage in bad behavior or pose a danger to others. But all nine justices agreed that a comprehensive ban on gun ownership by marijuana users goes too far. The judges split into a few different camps, however, as to why the law involved Tabernacle it is unconstitutional.
More specifically, Justice Ketanji Brown Jackson, in an opinion joined by Justice Sonia Sotomayor, is urging his Court to reverse. New York Rifle & Pistol Association v. Bruen (2022), a confusing decision that, as he writes, is “unworkable,” because it “imposes on judges the unfamiliar and difficult task of sifting through centuries of evidence to answer ‘disputed historical questions.’
Bridge stated that courts should determine whether a modern gun law violates the Second Amendment by asking whether it is “consistent” with the law that existed when the Constitution was written. Lower courts have he struggled to use this systemwhich is only available in Second Amendment cases, in large part because the Supreme Court has never explained how the old law must match the new in order for the new to survive.
Indeed, the last time the Supreme Court decided a Second Amendment case, in United States vs. Rahimi (2024), Jackson cited several different lower court opinions asking the judges to explain exactly how, Bridge it is supposed to work.
Gorsuch’s majority opinion in Tabernacle there is no possibility of dispelling this concern. Instead of defining BridgeGorsuch writes that “we have it still had no reason “scrutinizing” the elements that would make modern law ‘reasonably similar’ to historical ones.” Historical analysis, in his view, narrowly considers the laws governing alcoholic beverages, and is unlikely to provide much guidance to judges hearing non-Second Amendment cases.
The Court’s entire approach to the Second Amendment is still a train wreck, in other words. But anyone bothered by that fact can now console themselves, legally, by squeezing a few rounds into their local shooting range, and then enjoy a fat fat doobie.
The people who wrote the Constitution drank a lot
Under BridgeState attorneys who want to defend a modern gun law must point to an old law that they think is similar to the new law. Judges — who, again, are working under limited guidance from the Supreme Court about how similar the two laws should be — must decide whether the new law is similar enough to the old law to allow the new law to be upheld.
In Tabernacle case, the Justice Department compared today’s law — a basic ban on gun ownership by “any illegal user” of marijuana — to era laws that placed certain restrictions on “regular drunks.” These laws didn’t directly target gun ownership – a few early US laws did, as America says they didn’t even have a police force at the time of establishment and thus not being able to disarm people except in limited circumstances. But the DOJ said that, if lawmakers recognized that people who use alcohol can be dangerous and need restrictions on their freedom, then lawmakers today can do the same.
But, as Gorsuch persuasively points out, these common drunkenness laws were much narrower than the modern law in question. Tabernaclewhich applies broadly to a wide range of drug users who are not dangerous, or even particularly impaired, because of their drug use.
Gorsuch writes that the drunkenness laws of the 18th and 19th centuries only applied to people who drank so much that they became a burden on society and often could not manage their own affairs. Among other arguments, Gorsuch quotes Benjamin Rush, a physician and a signer of the Declaration of Independence, who said that if he was a habitual drunkard, it would mean that “‘there was a bowl in one corner of the room, and they were always throwing balls between me and him, I couldn’t help but go past that code, to get to the rom.’”
Gorsuch also cites 19th-century laws such as an Arkansas law that defines a habitual drunkard as someone who is “unable to take care of (his) own affairs,” and a Connecticut law that defines such people as someone who has “lost the power of self-control.” And he notes that manufacturers were unlikely to support more restrictions on drinkers because many of them consumed large amounts of alcohol. “Some say James Madison ‘drank a pint of whiskey every day,'” Gorsuch writes.
A typical alcoholic, in other words, was someone with a serious addiction that made them a danger to themselves and others. That is quite different from the regular cannabis user who quietly smokes a joint in the comfort of his home. As Gorsuch writes, federal law in Tabernacle it’s so broad it can even be used by someone who uses “small gum as a sleep aid a few times a week.”
Hence the gun law involved Tabernacle it is quite different from the “common drunk” laws that the government pointed to in order to defend the law. Fair enough.
What Tabernacle it does not, however, provide any framework that explains how modern gun laws should generally resemble their 18th or 19th century counterparts in order to survive Second Amendment scrutiny. Bridge is likely to continue to confuse lower court judges, in large part because every Second Amendment case for the Judiciary. rely on ad hoc arguments about whether one law is sufficiently similar to another. There are few broad legal principles to be drawn from the Court’s historical analysis in any of these cases.
That said, Gorsuch’s opinion contains one sentence that could provide guidance to lower courts in future gun cases. At the end of the comment, he points out that historical laws “usually provided some order before a person lost any of his freedom, even for a short time.” So that does not suggest that the government must give individuals a trial before their gun rights are taken away. The law involved in Tabernacle fails this test, because it aims to take away a person’s right to own a gun the minute they become an illegal drug user.
This one line aside, however, Tabernacle it contributes little to the broader project of defining which gun laws are permissible and which are prohibited. It’s good news for people who enjoy guns and marijuana. But it’s bad news for judges struggling to apply Bridge.
