Guns and Drugs
A look at concurrences in United States v. Hemani
Welcome back to 14th & Colorado! I hope you had a great weekend.
In this post we’re going to take a trip to Washington D.C. to look at the Supreme Court’s “big” Second Amendment decision. Don’t worry. For the Texas appellate fans, I’ll have an argument preview of the Fifteenth Court’s final argument of the term out shortly, as well. That’s an interesting case about personal jurisdiction and the maker of Tylenol.
I’ll start by noting that Sarah Isgur has suggested that whether a decision is “big” is often decided post-hoc based on the voting pattern, rather than whether it was said to be big before the case was decided. Thus, a case like the one discussed today, where even the liberal wing of the court signed on to strike down a gun restriction, will be soon forgotten as “not big.” In contrast, a relatively benign case going into argument can become big if it creates a fractured opinion:
But I stand by my characterization that it was a big week for the Second Amendment. A Florida court of appeals struck down the state’s law banning concealed carry for individuals under 21. Bigger news came from the U.S. Supreme Court.
By now you’ve seen the headlines: “Supreme Court says habitual marijuana users can’t be banned from owning guns.” The Supreme Court released its decision in United States v. Hemani, last week, holding that 18 U.S.C. §922(g)(3)’s unlawful-user provision violates the Second Amendment as applied to a Texas man who smoked marijuana every other day and kept a gun at home.
The government conceded that §922(g)(3) fell within the Second Amendment’s scope because it banned a class of people from possessing a gun of any kind. The government argued that the law prohibited an individual from possessing a gun the minute he becomes an unlawful user of any controlled substance and remains in effect until he ceases being one, regardless of what controlled substance an individual uses, in what amounts, whether his drug use has ever made him a danger to himself or others, why he keeps a gun, or how safely he does so.
The government, following Bruen’s history and tradition test, pointed to “habitual drunkard” laws, to justify the ban. The government argued that these laws had deep roots in the country’s history and are—importantly for Bruen’s test—“relevantly similar” to §922(g)(3). The habitual drunkard laws fall into three categories: (1) vagrancy laws that allowed habitual drunkards to be confined in workhouses or jailed; (2) civil-commitment statutes that allowed courts to appoint guardians for habitual drunkards or authorized their commitment to asylums; and (3) surety laws under which judicial officers could compel habitual drunkards to post surety bonds to ensure their good behavior.
Writing for the Court, Justice Gorsuch walks through the Bruen history-and-tradition framework. He concludes that the government’s analogy to habitual-drunkard laws “fails under every measure it asks us to consider.” “Vagrancy laws usually targeted those who ‘did not meet the societal expectation of work,’ and sought to promote productivity and suppress various vices, not to protect the public from a category of unusually dangerous persons.” And the civil commitment laws “did not seek to protect the public from violence so much as to protect habitual drunkards from themselves and their families from financial devastation.”
The decision is surprising only in that post-Bruen Second Amendment jurisprudence is a bit of a mess, and you never know where things are going to land. And whether a surety law is sufficient to support a ban seems to hinge on how good an idea a court thinks the ban is. For example, the Court noted in Bruen that there was little evidence of enforcement of surety of the peace laws. True, the laws also required an individualized showing of dangerousness and there was a presumption of the right to carry. So they still probably wouldn’t have been sufficient to justify New York’s inverted presumption. But in Rahimi, there was no discussion of the relative non-use of surety laws. Surety laws seem to be the Rorschach test of gun laws.
But the real interesting discussions are, as is often the case, in the concurrences: Justice Thomas’s and Justice Jackson’s. Justice Thomas’s is potentially significant for criminal defense practitioners. Justice Jackson’s, I think, represents a genuine blind spot in progressive legal thinking.
Justice Thomas’s Concurrence: Has §922(g) Been Unconstitutional This Whole Time?
Let’s start with the Justice Thomas’s continued foray into attempting to curb Congress’s power under the Commerce Clause.
Justice Thomas joined the Court’s opinion in full. But he wrote separately to raise a point that the parties did not litigate: the possibility that §922(g) as a whole—at least as the government and some courts understand it—exceeds Congress’s power under the Commerce Clause.
Again, as his opinion makes clear, his skepticism of the expanse of the Commerce Clause is not new, nor is it limited to the Second Amendment.
The Problem
Section 922(g) makes it a federal crime for enumerated categories of people—unlawful drug users, convicted felons, domestic abusers, and others—to “possess in or affecting commerce, any firearm or ammunition.” The courts of appeals, following the Supreme Court’s 1977 statutory-interpretation decision in Scarborough v. United States, 431 U.S. 563 (1977), have read that “in or affecting commerce” language to require only a “minimal nexus” to interstate commerce: specifically, that the firearm at some point previously traveled across state lines. United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996) (per curiam).
In Hemani’s own case, the indictment alleged simply that his firearm “had been shipped and transported in interstate and foreign commerce” at some point in the past. Hemani, slip op. at 2 (Thomas, J., concurring). The government didn’t need to show Hemani bought it out of state, carried it across state lines himself, or did anything remotely interstate. It was enough that someone, somewhere, at some point had moved that gun across a state line before Hemani ever touched it.
Justice Thomas thinks that can’t be right. As he put it: “The Commerce Clause does not authorize Congress to ‘regulate or ban possession of any item that has ever been offered for sale or crossed state lines.’” Id. (quoting Alderman v. United States, 562 U.S. 1163, 1167 (2011) (Thomas, J., dissenting from denial of certiorari)). To accept the government’s position is to “convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” Id. (quoting United States v. Lopez, 514 U.S. 549, 567 (1995)).
Walking through the Lopez categories
Under Lopez, Congress can exercise Commerce Clause power in three ways: regulating (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, or (3) activities that substantially affect interstate commerce. Id. at 558–59. Justice Thomas walks through all three and concludes that §922(g) fits none of them as actually applied.
The first two categories don’t work because §922(g) criminalizes possession long after any connection to a commercial channel or instrumentality. There’s no requirement that the current possessor is engaged in any interstate activity at all. And the third—”substantially affects”—also fails, because “the mere possession of a firearm that long ago crossed state lines is not ‘economic activity’ in any sense, and the Court has never upheld regulation of intrastate activity that is not ‘economic in nature’ under this category.” Hemani, slip op. at 4 (Thomas, J., concurring) (citing United States v. Morrison, 529 U.S. 598, 613 (2000)). As Thomas notes, the Court “emphatically rejected ‘the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.’” Id. (quoting Morrison, 529 U.S. at 617). Gun possession is not economic activity. Cf. Lopez, 514 U.S. at 567 (“[P]ossession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.”).
The “jurisdictional hook”
Many courts of appeals have upheld §922(g) on the theory that its “in or affecting commerce” language constitutes a jurisdictional hook sufficient to save it under Lopez. Justice Thomas is clear: this reasoning doesn’t hold up. “Congress cannot regulate the possession of every thing that ever traveled across state lines.” Hemani, slip op. at 7 (Thomas, J., concurring). Treating the jurisdictional hook as dispositive “could very well remove any limit on the commerce power” and “would trespass on traditional state police powers.” Id. (citing Alderman, 562 U.S. 1163, 1167 (2011)).
Moreover, Lopez itself said a jurisdictional hook is only helpful if it “would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” 514 U.S. at 561. A bare “someone moved this gun across a state line at some point in the past” does not ensure anything of the kind.
What this means for §922(g) and beyond
This is a sobering thought. If Justice Thomas is right—if §922(g) cannot be grounded in the Commerce Clause as actually applied, then the problem is not limited to the unlawful-user provision. It extends potentially to the felon-in-possession statute at §922(g)(1), the domestic violence provision, the mental health provision, and every other subsection of §922(g) that criminalizes purely intrastate possession of a firearm solely because it once crossed state lines. The majority opinion in Hemani expressly declines to address those other provisions, and the Court has repeatedly called §922(g)(1) “presumptively lawful.”
And, more broadly, this drum that he’s been beating for years has broader application. Justice Thomas notes in his concurrence, he believes the scope of the Commerce Clause power is significantly narrower than it has been understood to be. That has significant implications for the law more broadly. He’s been criticized as out there on several legal issues, but as his clerks take positions in the federal judiciary, and conservative lawyers and scholars run with his ideas, he may get greater traction in the future.
Justice Jackson’s Concurrence: A Mistaken Argument for Going Back to an Equally Broken System
Now for my disagreement with Justice Jackson.
Justice Jackson, joined by Justice Sotomayor, concurred in full and wrote separately to make an argument she has made before: that the Bruen history-and-tradition test is unworkable and that means-end scrutiny—the framework courts applied before Bruen—is superior. She calls tiered scrutiny “squarely within the competence of courts” and suggests that “Constitutional adjudication through means-ends scrutiny” would be more “straightforward” and less “vulnerable to inconsistent and arbitrary application.” Hemani, slip op. at 3–4 (Jackson, J., concurring).
The last part of that statement is the biggest problem. The Ninth Circuit, for which I have a soft spot having served as a law clerk there, could find its way to uphold pretty much any law under means-ends scrutiny. Every public policy goal is worthy and narrowly tailored enough to support even the strangest restrictions on gun rights. I’ve been critical of Bruen’s test—it’s difficult to apply because of level of generality problems among other things. But the idea that means-ends scrutiny isn’t subject to inconsistent or arbitrary application is risible.
I’ll grant Justice Jackson this much: the Bruen framework is hard to apply. Historians get hired as expert witnesses and battle each other over what 18th-century statutes meant. Courts produce inconsistent results. The Hemani majority itself acknowledged the difficulty.
And the interpretation of history is—as I noted above with surety laws—not a neutral enterprise. Judges must consider a variety of factors, including whether the law is “sufficiently similar.” And that is manipulable. And the Bruen test is a bit of a mess. But it is no answer to that to suggest that tiered scrutiny is less manipulable.
What Justice Jackson is arguing
Justice Jackson’s pitch is essentially this: Bruen requires judges to sift through “centuries-old evidence” to answer “contested historical questions,” and different judges reach different conclusions from the same evidence, producing inconsistent results. She points to the circuit split over §922(g)(1)’s felon-in-possession ban as evidence. Id. at 2 n.1. Means-end scrutiny, she argues, avoids these problems by asking familiar questions: How severe is the burden on Second Amendment rights? Does the government have a compelling (or substantial) interest? Is the law sufficiently tailored? Those are the kinds of questions courts answer every day.
There’s a surface appeal to the argument. And it mirrors an argument her former boss (Justice Jackson clerked for Justice Breyer) made in But it’s wrong.
Tiered scrutiny is highly manipulable
Justice Young put the problem precisely. Though he was writing in a First Amendment context, his points that apply with full force to the Second Amendment. In Texas Department of Insurance v. Stonewater Roofing, Ltd. Co., Justice Young wrote:
“Combining the conduct-speech dichotomy’s apparent malleability with the all-but-determinative level of scrutiny yields serious problems for courts, the other branches of government, and the regulated public. Public suspicion that courts work backwards—that they categorize laws so that the desired level of scrutiny applies, not the other way around—could follow from a perception, whether fair or not, that this endeavor lends itself both to inconsistent categorization . . . and to wildly divergent results based on the chosen categorization.”
The critique is identical in structure to the pre-Bruen Second Amendment world. Under tiered scrutiny, the real action isn’t in the scrutiny itself—though there is definitely significant manipulability in it—but the threshold determination of which tier applies is also susceptible of significant manipulation. And as Justice Young observed, the concern about tiered scrutiny is not hypothetical: “[T]he label the Court affixes to its level of scrutiny . . . is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.” Id. (quoting Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2326–27 (2016) (Thomas, J., dissenting)). It’s worth noting who he was quoting—the Justice who finally put a knife through the heart of tiered scrutiny in the Second Amendment context . . . .
Scholars have highlighted that the judicially-crafted tiers of scrutiny are made up. As Justice Young noted, quoting Joel Alicea and John D. Ohlendorf: the tiers of scrutiny “have [no] basis in the text or original meaning of the Constitution. They emerged as a political solution invented by the justices to navigate internal factions at the Supreme Court, and they do not withstand critical analysis even on their own terms.” (quoting Alicea & Ohlendorf, Against the Tiers of Constitutional Scrutiny, 41 Nat’l Affs. 72, 73 (2019)).
Exhibit A: The Ninth Circuit
But you don’t need theoretical objections to see the problem with tiered scrutiny in the Second Amendment context. You just need to look at the Ninth Circuit’s track record before Bruen.
Under the pre-Bruen two-step framework, courts would first ask whether the regulated conduct fell within the core of the Second Amendment, and then apply either strict or intermediate scrutiny depending on how burdensome the regulation was. He’s a bad messenger, but by Judge VanDyke’s count “post-Heller, we have never struck down a single firearms regulation.” Duncan v. Bonta, 19 F.4th 1087, 1144 (9th Cir. 2021).
The judges often categorized challenged laws as minimally infringing on core rights, applied intermediate scrutiny, found that the government had a substantial interest in public safety, found that the law was reasonably fitted to that interest, and upheld the regulation. Lather, rinse, repeat. Magazine capacity limits, waiting periods, handgun storage requirements, open carry restrictions—one after another went through the Ninth Circuit’s tiered scrutiny machine and came out the other side upheld. In at least 50 Second Amendment challenges since Heller—more than any other circuit—the Ninth Circuit never found a law that was unconstitutional. In the rare instance that a panel did, the en banc court changed course. See 19 F.4th at 1165-66.
That’s not a coincidence. That’s what happens when you give judges a multi-factor balancing test with a thumb-on-the-scale interest in “public safety.” The outcome is determined at the categorization step, and the scrutiny itself becomes—as Justice Thomas said in a different context—a “meaningless formalism.”
This is precisely what Bruen was designed to fix. The Court looked at the pre-Bruen landscape and concluded that tiered scrutiny had become a rubber stamp for gun control legislation, and that courts needed a different framework that didn’t depend on judicial value judgments about the relative weight of regulatory interests. History and tradition, for all its messiness, at least asks an answerable (if difficult) question: Did the people who ratified this Amendment understand it to permit this kind of regulation?
Until next time . . .