Over the last several years, the Supreme Court has seemed reticent to take challenges on Second Amendment cases. After Bruen, the court has largely avoided making any more sweeping judgments regarding the right to keep and bear arms, even when lower courts conflict on the application of Bruen and the issue of historical restrictions on constitutional gun rights.
Today, however, the court took a case that will plunge it right back into the Bruen fight. This time, the players have switched sides, and it will recall one of the more celebrated enforcements of gun-rights restrictions of recent times:
The Supreme Court agreed Monday to decide if the federal government may bar certain drug users from owning guns or if the law violates the Second Amendment, taking up a second significant guns case of its current term.
The appeal represents a rare circumstance in which the Trump administration is defending a gun prohibition, which it described in briefing at the Supreme Court as a “narrow” limitation on one of “Americans’ most cherished freedoms.”
The case centers on Ali Danial Hemani, a dual citizen of the United States and Pakistan, who was indicted in 2023 on a single count of violating the guns-and-drugs law after the FBI found a 9mm pistol, 60 grams of marijuana, and 4.7 grams of cocaine at his family home. This prosecution, the government told the high court, rested Hemani’s habitual use of marijuana.
Hmmm. Does this case sound familiar? It should, considering that the circumstances sound very close to the reason why Hunter Biden got convicted on federal felony gun charges. Hunter was dumb enough to leave photographic evidence of both drugs and his firearm on his laptop, and then dumb enough to abandon the laptop at a repair shop, which then led to its exposure. After attempting to avoid accountability through several strategies -- first claiming the laptop was "Russian disinformation," then arguing that the law didn't apply in his situation, Hunter got convicted on this same law that the court will now take up.
What made the situation politically interesting was that Joe Biden had pushed for this specific law while in the Senate, which checked boxes for gun control and crime and offered a sop to both sides of the political divide. Furthermore, he and his administration spent four years attempting to aggressively enforce this and similar laws (as had the Obama administration). The Bidens then turned on a dime (no pun intended) to argue -- as Hemani's attorneys do here -- that the law barring drug addicts from possessing firearms is unconstitutional. Some gun-rights advocates agreed with Biden on guns for the first time ever, an event of such cognitive dissonance that Biden (or his politburo, including Hunter himself) issued his son a pardon immediately after his conviction.
With similar irony, the Trump administration now defends this gun control law. How enthusiastic are they about this defense, though? This defense might just be a fulfillment of a pro forma role in which the Solicitor General steps up to defend challenges to existing law. Had Hunter not received a pardon, the Trump administration would no doubt have had much more enthusiasm for the law's defense. However, this law does give the Department of Justice a lot of leeway in prosecuting criminals, especially those who may be getting easy treatment in blue cities and states, and the administration could very well want that tool to remain in the toolbox.
The decision to take up the law is noteworthy, too. The Fifth Circuit ruled that it violated the Second Amendment in the Hemani case:
A federal district court dismissed the charge, noting a landmark decision from the Supreme Court in 2022 that made it easier for Americans to carry handguns in public and also required similar gun prohibitions to have a connection to history. ...
The conservative 5th US Circuit Court of Appeals upheld that decision, holding in a brief decision that the historical record points only to laws that barred guns for Americans who are actively intoxicated or under the influence of drugs at the time of their arrest. The government, the court ruled, could not target habitual users.
The Supreme Court granted cert without comment, which indicates that at least four of the justices have enough of an issue with the Fifth Circuit ruling to want a closer look at it. It does appear that the more conservative appellate circuit did approach this law with Bruen in mind, so it's possible that the court reviews it and eventually endorses it. If that's the case, though, why take it up at all? They could have stayed out of it and let the Fifth Circuit's ruling act as guidance. It sounds as though at least four justices want to fine-tune Bruen in this case.
And that makes me ... nervous. Bruen was a pretty big win for originalist jurisprudence on the Second Amendment, even if it was a little ambiguous. If the court wants to start whittling away at those parameters, it may end up watering down the basis for Bruen and create more space for creative approaches to gun control, let us say. This case carries a lot of freight, even if it doesn't matter to the Biden Politburo any longer.
