We wrote about the U.S. v Hemani case when the oral arguments took place, and the Supreme Court’s unanimous decision written by Justice Gorsuch is consistent with what we wrote. The concurring decision by Justices Jackson and Sotomayer is comical in its logical errors, and we will discuss that at the end of this post.
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The decision was extremely strong, and while it focuses on marijuana, it can be used to challenge Red Flag laws as well as many other gun control laws. The Supreme Court clarifies its Rahimi decision, though we think that it was already clear, when the new decision states that Rahimi had been adjudicated: “Certain other provisions of §922, such as subsections (g)(1) (disarm- ing convicted felons) and (g)(4) (disarming any person “adjudicated as a mental defective” or “committed to a mental institution”), involve some manner of pre-deprivation process before an individual’s Second Amendment rights are lost.” This adjudication requirement strikes directly at the very nature of Red Flag laws where a person has their guns taken away from them without a hearing based solely on a written complaint.
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The implication for other gun control laws can be seen in this very strong sentence in the opinion.
Our cases demand this attention to history, we have said, because the Second Amendment was designed to codify a “pre-existing” individual right and guard against its later erosion by majoritarian legislation or judicial fiat. Id., at 25 . . . .
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The bottom line for the Hemani case is summarized here:
All that is before us is one, if surely ambitious, theory. The government maintains that it may automatically strip Mr. Hemani of his Second Amendment right to possess a firearm because he uses marijuana a few times a week. More than that, because he possessed a gun despite this prohibition, the government insists it may imprison him for up to 15 years and disarm him for life. According to the government, none of this turns on how much marijuana Mr. Hemani uses or what effect it has on him. It makes no dif- ference either if he keeps a firearm only in his home for self- defense, never misuses a gun while intoxicated, and never poses a danger to himself or others as a result of his mari- juana use. The only thing the government must show, it says, is that an individual like Mr. Hemani regularly uses any amount of any controlled substance.
To square that expansive theory with the Second Amend- ment, the government invites us to draw an analogy be- tween its present regulation and historical laws addressing habitual drunkards. Those laws, the government contends, demonstrate a tradition of firearm regulation consistent with its effort to disarm any regular user of any controlled substance without any further showing. But the govern- ment’s analogy fails under every measure it asks us to con- sider: The historical laws on which it relies targeted differ- ent kinds of people, did so for different reasons, and operated in different ways. And faced with all these short- comings in the government’s submission, we cannot say it has carried its conceded burden of showing its prosecution of Mr. Hemani complies with the Second Amendment. . . .
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Justices Jackson and Sotomayer argue that the Bruen decision of looking at the history of gun control laws at the time the Second Amendment was adopted in 1791 is arbitrary and likely to result in judges reaching different conclusions, but that balancing tests where judges will weight the costs and benefits of different laws (so-called “balancing tests”) will produce more universal agreement across judges, seriously? This would have judges playing the role of legislators.
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Given those challenges, it is unsurprising that Bruen’s test is vulnerable to inconsistent and arbitrary application, as judges draw different conclusions from the same historical evidence and reach divergent assessments of the same laws. Perhaps worst of all, Bruen leaves no room to consider “the real and present stakes of the problems facing our society today.” Rahimi, 602 U. S., at 706 (SOTOMAYOR, J., concurring). Instead, to pass a new firearm regulation, legislatures and their lawyers are, as a practical matter, forced to trawl through inconclusive and incomplete historical records in search of evidence they can only hope will satisfy this Court.
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