Guns, drugs, and the Second Amendment right to bear arms all merged at the Supreme Court on Monday in a case that could dramatically undermine the Gun Control Act of 1968.
First a few basics: Marijuana use is legal, to one degree or another, in 40 states, but at the same time it's illegal under federal law and is classified a schedule one drug, among the most dangerous. Just to make things even more confusing, President Trump is trying to reclassify the drug as less dangerous. But on Monday, his Justice Department was in the Supreme Court seeking to uphold a law that makes it a crime punishable by up to 15 years in prison for a marijuana user to own a gun.
All this takes place in light of the court's 2022 decision in the case of the New York State Rifle & Pistol Association v. Bruen, which held that for a gun law to be constitutional, it must be analogous to a similar law at the nation's founding in the late 1700s.
In the Supreme Court chamber Monday, Deputy Solicitor General Sarah Harris told the justices that the federal law "is analogous" to the laws at the nation's founding, laws that barred guns for "habitual drunkards."
That claim prompted this from Justice Neil Gorsuch: "John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn't much of user of alcohol. He only had three or four glasses of wine a night," he said. "Are they all habitual drunkards who would be properly disarmed for life under your theory?"
Gorsuch added that in this case, the defendant was prosecuted after admitting to FBI agents that he used marijuana every other day.
"What if he took one gummy bear … to help him sleep every other day?" the justice asked. "Should we "disarm him for life?"
Justice Ketanji Brown Jackson repeatedly pointed to Monday's case as an illustration of how difficult the 2022 Bruen decision is to apply.
"The entire point, I thought, of the Bruen test was to say that the only thing the modern legislature gets to do is follow the judgments of the founding-era legislature" when it comes to "who is dangerous and who gets to be disarmed," she said.
Justice Samuel Alito noted that the most commonly used drugs today had not been invented at the time of the founding. Heroin, methamphetamines, fentanyl, they all were invented in the late 1800s, and marijuana was not consumed to any significant degree until the early 1900s, Alito said.
As a result, he said, "We don't know what those who adopted the Second Amendment thought about illegal drug use per se?"
Justice Amy Coney Barrett confessed to being "stuck," because she said there is no evidence that the defendant's use of marijuana every-other day was dangerous or that he should be convicted of a crime and deprived of his legally purchased and properly stored gun. Then she rattled off a series of other potentially dangerous drugs that are regulated under federal law .
"Robitussin, Ambien, Tylenol with codeine, testosterone, Adderall." As she put it, "I'm not a pharmacologist, but none of those drugs strike me as drugs for which it is obvious that a risk of violence would ensue."
But when the defendant's lawyer, Erin Murphy, rose to make her argument, Chief Justice John Roberts pummeled her with a series of skeptical questions. If Congress and the executive branch still list marijuana as a dangerous drug, but the defendant can't be prosecuted and disarmed, why wouldn't that same treatment apply to other prohibited drugs, like PCP and amphetamines.
Noting that guns are banned from courthouses across the country, Roberts said that under Murphy's argument those policies would have to be hashed out, case by case, in court, too.
"It just seems to me that takes a fairly cavalier approach to the necessary consideration of expertise and the judgments we leave to Congress and the executive branch," he said.
Justice Elena Kagan then asked a question about a drug she called ayahuasca, which she said she knew little about. But, she said, "just assume what I tell you about it is true."
Its a very intense hallucinogen, she said, which lasts a long time, and "when you're in its grip, reality dissolves."
"I'm assuming," she added, that Congress has a good reason for saying, "when reality dissolves, you don't want guns around."
Justice Barrett chimed in at this point, looking across the bench at Kagan.
"I have never heard of the drug," she said. "Is that real?"
Kagan nodded her head, "yes," as the laughter broke out in the Supreme Court chamber courtroom.
Monday's case was brought by the Justice Department against Ali Danial Hemani.
Although the government characterizes him as a drug dealer with terrorist ties, he was not charged with any such activities. Rather, when the house he shared with his parents was searched, FBI agents found a gun that Hemani bought legally, and he told FBI agents that he uses marijuana every other day. He was then charged with violating the 1968 federal gun law that bars drug users and addicts from possessing firearms.
The Fifth Circuit Court of Appeals subsequently threw out the charges, declaring that the federal law violates the Second Amendment right to own a gun, and the Justice Department appealed to the Supreme Court.
A decision in the case is expected by summer.
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