Supreme Court: Law Cited in Hunter Biden Case Violates the Second Amendment

T he Second Amendment had a good day in court on Thursday — as it usually does when the Supreme Court actually decides a gun rights case rather than letting anti-Second Amendment appeals and district courts have the final say.

Until a few years ago, 18 U. S. C. § 922(g)(3) was a fairly obscure, if potent, weapon in the federal prosecutor’s toolkit. The law bans anyone who is an “unlawful user of ” or “addicted to” a “controlled substance” from buying, owning, or possessing a gun. That makes it an easy offense to prove and lets prosecutors throw stiff sentences at people involved in drugs and guns without, say, proving that they are drug dealers or have committed violent drug crimes. For a twofer, because drug users are not likely to confess to using illegal drugs and buying guns illegally, a user who buys a gun through legal channels can be brought up on additional charges of lying on required forms submitted to federally licensed firearms dealers — and one who fears doing that can be charged with getting a gun illegally.

Section 922(g)(3) attracted a lot more attention when it was wielded in the prosecution of Hunter Biden. Critics of the Biden clan especially enjoyed the spectacle of Joe Biden’s son being prosecuted under a law whose penalties had been increased by his father in the Senate, and of Hunter threatening to challenge the constitutionality of that law. In the end, after pleading guilty — not under Section 922(g)(3) itself, but to lying on the federal form that implements it — Hunter was pardoned, and his elderly father left the public stage in disgrace. But in the meantime, the Second Amendment issue he raised made it to the Supreme Court in United States v. Hemani. This morning, all nine members of the Court agreed that the law violates the right to keep and bear arms.

Hemani involves a habitual but at first glance sympathetic drug user, a guy who lives with his parents, smokes pot roughly every other day, and owns a gun. The opportunistic nature of prosecutions under Section 922(g)(3) is illustrated by the fact that he initially pinged the government’s radar when his family was suspected of involvement in terrorism — for which no charges were brought. Hemani, a dual citizen of Pakistan, apparently cheerfully admitted to federal agents that he had a gun and smoked pot, and that some cocaine in his mother’s closet was his. It would seem that regular pot smoking impaired his instinct to call a lawyer instead of talking to the feds.

For the Court, the Second Amendment question is the one established by New York State Rifle & Pistol Assn., Inc. v. Bruen, (2022), under which restrictions on the right to bear arms must be “consistent with the Nation’s historical tradition of firearm regulation.” As explained by Justice Clarence Thomas’s originalist opinion in Bruen, in order to square a restriction on gun ownership or possession with the Second Amendment, the government must show that the restrictions it proposed were an analogue to something done historically — but such precedents need not be a “dead ringer” or a “historical twin.” The government can sometimes do that: In United States v. Rahimi (2024), it upheld a close cousin of Section 922(g)(3), Section 922(g)(8), which bars guns from people who are subject to a court-issued restraining order that includes a judicial finding of credible threats to physical safety. Rahimi drew on historical analogies to varied types of laws that limited the gun rights of people found by a legal process to be dangerous, and considered that to show that the same principle was involved; the decision was 8–1 and drew a stinging dissent from Thomas, who considered the majority’s analogies to be too loose as well as reliant on a system that gave inadequate due process.

In Hemani, the Court found that no similar analogue justified Section 922(g)(3). Seven justices joined the majority opinion written by Justice Neil Gorsuch, and two others (Justice Samuel Alito, joined unusually by Justice Elena Kagan) concurred in the result. This has been a good term for Gorsuch in getting most of his colleagues to sign on to hot-button majority opinions, as he did in Chiles v. Salazar and First Choice Women’s Resource Centers, Inc. v. Platkin. Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, wrote to complain about Bruen, but agreed with how Gorsuch applied it. Justice Clarence Thomas joined the majority as well, but (in classic Thomas fashion) wrote a concurring opinion arguing that Section 922(g)(3) was also unconstitutional for exceeding the power of Congress to regulate interstate commerce.

As Gorsuch observed, we look to history and tradition for what limits were accepted at the time the Second Amendment was written “because the Second Amendment was designed to codify a pre-existing individual right and guard against its later erosion by majoritarian legislation or judicial fiat.” (Quotation and citation omitted.) The Hemani majority, probably as a concession to get so many justices to sign on, offered minimal guidance on exactly how to apply the Bruen test in other cases, saying only: “The more closely a contemporary law mirrors a well-established historical analogue in purpose and operation, the more likely it is to be upheld. Conversely, the more a modern law diverges from traditional laws in purpose and operation, the less likely it is to survive review.” That said, lower courts can draw guidance simply from the contrasting outcomes of Hemani and Rahimi and how broad majorities of the Court reached them.

A finding of personal dangerousness was not on the table this time around: “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. 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.”

Some Founding-era laws disarmed people while drunk, but that was merely a temporary precaution. The main analogues offered for a law this sweeping were laws disarming “habitual drunkards,” a topic that led the argument and the commentary down a lot of amusing rabbit holes about exactly how much you needed to drink to be considered a drunkard in the notoriously boozy early years of the republic, when alcohol was one of the few things that was safe to drink. As Gorsuch noted:

Had habitual drunkard laws applied to those who simply drank regularly, many notable early Americans could have faced trouble. 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. . . . Thomas Jefferson enjoyed 3 or 4 glasses of wine at dinner. . . . In fact, just a few days before the framers signed the Constitution, a farewell party gathered for General Washington at Philadelphia’s City Tavern where 55 guests are said to have ordered 54 bottles of madeira, 60 bottles of wine, 8 bottles of “Old stock,” 22 bottles of porter, 8 bottles of cider, 12 bottles of beer, and 7 large bowls of punch. . . . There was, in short, a culture of copious drinking in early America. . . . Indeed, in 1829 the secretary of war estimated that three-quarters of the nation’s laborers drank . . . at least 4 ounces of distilled spirits every day. Even the American Temperance Society called those who drank 12 ounces of hard liquor daily mere occasional drunkards. . . . As the Society saw things, it took 24 ounces to qualify as a confirmed drunkard. [Quotations and citations omitted.]

What the government failed to do was justify the sweeping scope of Section 922(g)(3) by reference to the habitual drunkard laws:

We appreciate that drugs and guns can sometimes make for a dangerous mix. We appreciate, too . . . sensitivity to the fact that many drugs well known today were unknown in early America. . . . [But] the habitual drunkard laws on which the government relies here differ dramatically from §922(g)(3)’s unlawful user provision on every single metric the government invites us to consider: They targeted different kinds of people, did so for different purposes, and operated in different ways. [Quotations and citations omitted.]

Thus, for example, a habitual drunkard was defined in early laws as someone who was incompetent to conduct his affairs or had lost all powers of reason or self-control. (This echoes the recent complaint by Thomas that the Founders would not have had trouble executing stupid murderers unless they were actually considered incompetent to know right from wrong). As Gorsuch added, other laws cited by the government (involving vagrancy and civil commitment) were aimed to protect people from themselves, not from wielding weapons against society. And the habitual drunkard laws also offered some due process, unlike the automatic bar involved in Section 922(g)(3).

By contrast to personalized showings of dangerousness, Section 922(g)(3) required no showing that Hemani was actually chronically impaired:

The government considers Mr. Hemani an unlawful user of a controlled substance because he admits to using marijuana about every other day. But how much marijuana does Mr. Hemani use, in what potency, and to what effect? Is he routinely unable to manage his affairs, a risk to himself or his family? Or does he use a mild gummy as a sleep aid a few times a week? We do not know and, the government says, it doesn’t matter. The government asks us to analogize him to a habitual drunkard all the same. Nor does the government’s theory stop at Mr. Hemani. It extends equally to a husband who regularly takes his wife’s prescription Ambien to sleep and a college student who routinely uses a friend’s Adderall to cram for exams. . . . The drug involved makes no difference. Nor, again, does it matter how much an individual uses or the effects it has on him. [Quotations and citations omitted.]

This is notable given the broad list of illegal drugs on the government’s schedule of banned substances: “Drugs can be added to its schedules for a variety of reasons having little or nothing to do with their potential to induce violence.” Alito and Kagan note that they would have stopped there, and simply found that the law cannot be constitutionally applied to regular pot users in a society where marijuana is now widely legal under state law and is sold by “a multi-billion-dollar marijuana business. . . . In these circumstances, marijuana use today is like alcohol use at the founding.”

More dubiously, Gorsuch and the majority noted that the Obama administration directed the Justice Department to stop enforcing the marijuana laws: “Whatever one thinks of these developments, the federal government has not just tolerated them; it helped fuel them. All of which leaves it awkwardly positioned to suggest that the millions of Americans who now regularly use marijuana are categorically and unusually dangerous.” I am skeptical of considering executive nullification of the law as weighing upon the constitutionality of laws enacted by Congress.

Given that the Court has previously upheld another of Section 922’s subparts, Hemani is by no means a death knell for other bans, such as the ban on felons in possession. The Court disclaimed ruling on those, describing its decision as “narrow.” But taken together with Rahimi, Hemani sets the parameters for future challenges: Laws restricting gun ownership are more apt to be upheld if they focus on the specific, proven dangerousness of the defendant rather than on per se statutory categories in which no prior judicial finding has taken place.