Yesterday the Supreme Court had oral argument in United States v. Hemani, which presented the question, "Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who 'is an unlawful user of or addicted to any controlled substance,' violates the Second Amendment as applied to respondent."
Several justices honed in on an important question: When Congress makes a categorical judgment about who can lawfully possess or carry firearms, how should courts review that judgment? Near the beginning of the opening argument by Hemani Counsel Erin Murphy, Chief Justice Roberts asked whether Hemani's position—that disarmament on account of his marijuana use violates the Second Amendment—embodied a "fairly cavalier approach to the necessary consideration of expertise and the judgments we leave to Congress and the executive branch." In other words, if Congress says marijuana users are dangerous, who is the judiciary to question that decision?
Two thoughts on this issue. First, applying Bruen's historical analysis, we ask what is the historical tradition at issue? Both sides agree that firearms can be banned from physically "dangerous" individuals. Accepting that principle resolves this case, without the Court having to decide what level of deference the legislative branch gets in defining categories of dangerous people. That is because (as several justices seem to acknowledge in their questioning) that is not what happened here. In enacting Section 922(g)(3), Congress did not come up with a list of drugs whose use renders the user "dangerous," thereby justifying disarmament. Rather, Congress simply incorporated wholesale the drug "schedules" prescribed under the Controlled Substances Act and said that any unlawful user of a scheduled drug can be disarmed.
