Professor Joel Johnson, "A Victory for the Defendant in United States v. Hemani, but Little Guidance for the Lower Courts" -- SCOTUSblog
Professor Joel S. Johnson's opinion article, "A Victory for the Defendant in United States v. Hemani, but Little Guidance for the Lower Courts" is published in SCOTUSblog. The article examines the Supreme Court's decision in United States v. Hemani.
From "A Victory for the Defendant in United States v. Hemani, but Little Guidance for the Lower Courts"
Last week, the Supreme Court decided the case of United States v. Hemani in the defendant’s favor. The government had prosecuted Ali Hemani under 18 U.S.C. § 922(g)(3) – which makes it a felony for an “unlawful user” of a controlled substance to possess a firearm – on the ground that he smoked marijuana about every other day. The court deemed that prosecution inconsistent with the Second Amendment. The outcome for Hemani is the correct one. But the most revealing thing about the court’s opinion may be what it never admits – that the real issue with Hemani’s prosecution was a statute so vague that no one can say whom it covers.
Section 922(g)(3) bans firearm possession by an “unlawful user” of drugs. That phrase is vague. It doesn’t clearly draw a line between who along the spectrum of drug users is covered and who is not. Does it cover someone who tried a drug once? The weekend smoker? Someone who used every other day, like Hemani? Or only someone who is high while actually possessing a gun? The text is silent.
The unclear statute was front and center in this case. The first argument in Hemani’s brief was that the “unlawful user” prong is void for vagueness because it doesn’t adequately define the line between lawful and unlawful conduct. Vague language in a criminal statute undermines due process and the separation of powers by effectively delegating the legislative task of crime definition to prosecutors, thereby inviting arbitrary enforcement and failing to provide sufficient notice.
In an amicus brief supporting Hemani, and in a December column for SCOTUSblog, I pressed a gentler version of the same point, arguing not for invalidation, but for a narrowing construction that would save the statute by confining it to its clear core – those impaired while armed – through a rule of what I have called “major-questions lenity” or “vagueness avoidance.” That approach would have allowed the court to resolve the case on a statutory ground without ever reaching the Second Amendment question.
The vagueness concerns were not lost on the justices. At argument, the statutory phrase “unlawful user” drew sustained fire from several members of the court, most pointedly from Justice Neil Gorsuch (who authored the majority opinion in Hemani). He told the government it “has not been able to define what a user is” – noting that it had previously taken the position that the term “unlawful user” covered anyone who used a drug “in the past year,” then argued that “a pattern” was needed, and then advocated for a confusing “habitual [use]” gloss that “conflates” the user prong with the statute's separate “addict” prong. “[T]ell me how [that’s] so clear,” he pressed the principal deputy solicitor general.
Yet in his majority opinion, Gorsuch chose not to focus on vagueness but on the Second Amendment – or at least it appears that way at first blush. Gorsuch surveyed the Founding-era treatment of “habitual drunkards” under the Second Amendment (a category of persons that the government contended was analogous to drug users) and concluded that those laws reached such people not because they used intoxicants regularly but because their drinking “rendered them practically incapacitated and incapable of managing their affairs.” Measured against that tradition, the habitual-drunkard laws “differ dramatically” from Section 922(g)(3) “on every single metric the government invites us to consider: They targeted different kinds of people, did so for different purposes, and operated in different ways.”
As to vagueness, the opinion said nothing expressly. But the majority’s stated discomfort with Hemani’s prosecution is actually a vagueness intuition in Second Amendment dress. In the course of Gorsuch’s constitutional analysis, he asked “how much marijuana does Mr. Hemani use, in what potency, and to what effect? Is he routinely unable to manage his affairs, a risk to himself or his family?” Or does he “use a mild gummy as a sleep aid a few times a week?” The answer, Gorsuch noted, is that “[w]e do not know and, the government says, it doesn't matter.” That is an objection to a prosecution under a statute that fails to provide a clean separation between the conduct it covers and that which it does not. The court felt the vagueness defect but answered it with Second Amendment analysis rather than naming it for what it was.
The complete article may be found at SCOTUSblog