On Monday, March 2, the Court will hold oral arguments in United States v. Hemani, which involves a challenge to the federal law that prohibits “unlawful drug users” from possessing firearms (18 U.S.C. § 922(g)(3)). Hemani is on appeal from the U.S. Court of Appeals for the Fifth Circuit, which held that, consistent with 2024 Fifth Circuit precedent, 922(g)(3) could only preclude the possession of firearms by any unlawful drug user while he is under the influence of the unlawful drug. In other words, the government must prove a defendant was “intoxicated at the time” of possessing a firearm for § 922(g)(3) to pass constitutional muster; use in the past alone is not sufficient.
Let’s break down each side’s arguments in advance of Monday’s arguments.
At a high level, the government relies heavily on Rahimi’s instruction that Congress can disarm “categories of persons” who “present a special danger of misuse.” The government says that this is exactly what 922(g)(3) does, and that Rahimi provides a clear basis for resolving this case.
To minimize the perceived burden that 922(g)(3) imposes on Second Amendment rights, the federal government argues that the statute imposes only a “temporary” restriction on the right to keep and bear arms. Once a person stops “habitually” using illicit drugs, the right is restored.
The government then proceeds to argue that historical “habitual drunkard” laws suffice as historical analogues justifying 922(g)(3)’s proscription on unlawful drug users. Those laws, the government says, were enforced via three liberty-restricting mechanisms, which are analogous to disarmament in their effect. Those enforcement mechanisms were: (1) civil commitment by a court, placing the person within the care of an asylum or relative, (2) criminal vagrancy statutes, punishable by incarceration and fines, and (3) surety bonds, which required forfeiture of a bond if the person recidivated.
With respect to the habitual drunkard laws, the government concedes they are different because alcohol has been legal within the United States for most of its history. There are no perfect historical replicas because illegal drugs did not start to be a societal problem that legislatures dealt with until the nineteenth and twentieth centuries. Despite these differences between the historical analogues and 922(g)(3), legislative judgments about the risk of danger posed by people in an intoxicated state remains the same.
The government also argues that the Court should not adopt the Fifth Circuit’s approach because it would pose dangers for law enforcement and be very difficult in practice to apply the restriction to only those actively under the influence.
Hemani argues principally (1) that the “unlawful drug user” proscription is void for vagueness, and (2) the government’s proffered historical analogues are inapt.
The law is unconstitutionally vague because it does not provide sufficient notice as to what behavior is proscribed—namely, the law provides no insight into how often someone must use illegal drugs to be subject to the ban, or how recent or substantial the drug use must be, in order for the prohibition to apply. He says the government impermissibly reads the word “habitual” into the statute—what Hemani calls “atextual gloss”—to try to resuscitate the law from its vagueness grave. But this isn’t enough, Hemani says, because “the government does not say what it thinks ‘habitual user’ means, other than that it is broad enough to capture Mr. Hemani’s marijuana use.”
Hemani also argues that there is a key distinction between “habitual drunkards” and people who simply used alcohol on a regular basis, and that this distinction is constitutionally significant. These habitual drunkard statutes, he says, would not have applied to people who consumed alcohol without becoming dangerously inebriated. Furthermore, he says, the historical laws that the government offers are more akin to modern restrictions on addicts having firearms (which is the second part of 922(g)(3), and not at issue in this case).
Oral arguments will be held on Monday, March 2 at 9:30 AM ET. You can listen to the arguments live.
Hemani – Oral Argument Preview
On Monday, March 2, the Court will hold oral arguments in United States v. Hemani, which involves a challenge to the federal law that prohibits “unlawful drug users” from possessing firearms (18 U.S.C. § 922(g)(3)). Hemani is on appeal from the U.S. Court of Appeals for the Fifth Circuit, which held that, consistent with 2024 Fifth Circuit precedent, 922(g)(3) could only preclude the possession of firearms by any unlawful drug user while he is under the influence of the unlawful drug. In other words, the government must prove a defendant was “intoxicated at the time” of possessing a firearm for § 922(g)(3) to pass constitutional muster; use in the past alone is not sufficient.
Let’s break down each side’s arguments in advance of Monday’s arguments.
At a high level, the government relies heavily on Rahimi’s instruction that Congress can disarm “categories of persons” who “present a special danger of misuse.” The government says that this is exactly what 922(g)(3) does, and that Rahimi provides a clear basis for resolving this case.
To minimize the perceived burden that 922(g)(3) imposes on Second Amendment rights, the federal government argues that the statute imposes only a “temporary” restriction on the right to keep and bear arms. Once a person stops “habitually” using illicit drugs, the right is restored.
The government then proceeds to argue that historical “habitual drunkard” laws suffice as historical analogues justifying 922(g)(3)’s proscription on unlawful drug users. Those laws, the government says, were enforced via three liberty-restricting mechanisms, which are analogous to disarmament in their effect. Those enforcement mechanisms were: (1) civil commitment by a court, placing the person within the care of an asylum or relative, (2) criminal vagrancy statutes, punishable by incarceration and fines, and (3) surety bonds, which required forfeiture of a bond if the person recidivated.
With respect to the habitual drunkard laws, the government concedes they are different because alcohol has been legal within the United States for most of its history. There are no perfect historical replicas because illegal drugs did not start to be a societal problem that legislatures dealt with until the nineteenth and twentieth centuries. Despite these differences between the historical analogues and 922(g)(3), legislative judgments about the risk of danger posed by people in an intoxicated state remains the same.
The government also argues that the Court should not adopt the Fifth Circuit’s approach because it would pose dangers for law enforcement and be very difficult in practice to apply the restriction to only those actively under the influence.
Hemani argues principally (1) that the “unlawful drug user” proscription is void for vagueness, and (2) the government’s proffered historical analogues are inapt.
The law is unconstitutionally vague because it does not provide sufficient notice as to what behavior is proscribed—namely, the law provides no insight into how often someone must use illegal drugs to be subject to the ban, or how recent or substantial the drug use must be, in order for the prohibition to apply. He says the government impermissibly reads the word “habitual” into the statute—what Hemani calls “atextual gloss”—to try to resuscitate the law from its vagueness grave. But this isn’t enough, Hemani says, because “the government does not say what it thinks ‘habitual user’ means, other than that it is broad enough to capture Mr. Hemani’s marijuana use.”
Hemani also argues that there is a key distinction between “habitual drunkards” and people who simply used alcohol on a regular basis, and that this distinction is constitutionally significant. These habitual drunkard statutes, he says, would not have applied to people who consumed alcohol without becoming dangerously inebriated. Furthermore, he says, the historical laws that the government offers are more akin to modern restrictions on addicts having firearms (which is the second part of 922(g)(3), and not at issue in this case).
Oral arguments will be held on Monday, March 2 at 9:30 AM ET. You can listen to the arguments live.
