Dave Pozen and I have just posted The Excluded Middle of Law: Constitutional Drivers of Extremism in Gun and Drug Policy, which is forthcoming soon in the Supreme Court Review. Here’s the Conclusion:
This Article calls attention to the mismatch between the growing scholarly consensus on how to regulate guns and drugs (some version of a middle-ground approach) and the constitutional rights doctrine on these subjects (generally either maximalist or minimalist). Some will not be troubled by this mismatch, either because they do not embrace theories like grudging toleration or harm reduction for guns or drugs or because they do embrace methods of constitutional interpretation that marginalize consequentialist considerations. But nearly everyone else has cause for concern. For pragmatically minded constitutional decisionmakers, in particular, we hope that recognition of this mismatch might nudge them toward modes of analysis that tolerate policies of grudging toleration.
To the degree that this past Supreme Court Term provides a positive takeaway in this regard, it is that although the Justices now claim to be engaged in a purely textual and historical Second Amendment inquiry, Hemani demonstrates otherwise. Hemani dwells sympathetically and at length on the modern realities of marijuana use—harkening back to an era when recognition of a right to private possession of the drug was “on the wall”—and on the costs of enforcing criminal laws like § 922(g)(3). The citations are to Founding-era sources, but the real work seems to be done by what Justice Barrett once described as “common sense.” Wolford, however, evinces nothing but scorn for the interest-balancing that regulatory common sense requires.
In the long run, the prospects for U.S. constitutional law to facilitate rather than frustrate efforts to find workable, noncarceral solutions to gun violence and drug abuse may depend on the degree to which the Court turns toward proportionality review. In the near term, the prospects for grudging toleration on guns will depend in large part on which ruling from June 2026 proves the more influential methodological precedent: Hemani or Wolford.
