As we reported earlier today, the Supreme Court has granted cert in a case called U.S. v. Hemani, which addresses whether the federal statute barring unlawful users of drugs from possessing firearms comports with our nation's tradition of gun ownership. A decision from the Court will likely come down next spring, but have the justices already given us a hint about what their ruling will be?
Hemani was one of five cases dealing with Section 922(g)(3) that the Court has been considering in conference. So far it's the only case the justices have agreed to hear, but they're not keeping the other four cases in a holding pattern until Hemani has been resolved. In fact, they've rejected outright the government's request to hold on to two of these cases while Hemani plays out; both dealing with decisions from the Eighth Circuit Court of Appeals, one of which led to charges being dismissed against the defendant.
There's a great deal of disagreement among appellate courts about the constitutionality of 922(g)(3). The Fifth Circuit has ruled that a national tradition of gun ownership may support bans on people possessing guns while they're actively intoxicated, but not banning all users of intoxicating substances from possessing guns. The Third Circuit has held that "history and tradition justify §922(g)(3)’s restrictions on those who pose a special danger of misusing firearms because they frequently use drugs," but only those "whose drug use would likely cause them to pose a physical danger to others if armed."
The Eighth Circuit has adopted a stance similar to the Third Circuit; "for disarmament of drug users and addicts to be... 'justifi[ed],' it must be limited to those 'who pose a danger to others,'” and it's up to the courts to make that finding of dangerousness.
Last week SCOTUS turned down a case called U.S. v. Baxter, where the Eighth Circuit instructed a federal district court to conduct an analysis to consider whether or not Keshon Daveon Baxter actually posed a danger to others because of his drug use. As I wrote at the time, "the fact that Baxter didn't prevail in his do-over at the district court may have influenced the Court to reject the government's appeal, but it does leave the Eighth Circuit's decision that district courts need to conduct an individualized assessment on a defendant's dangerousness in place... at least for now."
Well, now the court has turned down the DOJ's request to hold another case from the Eighth Circuit called U.S. v. Cooper until the Hemani case has been decided. Unlike Keshon Baxter, LaVance Lamar Cooper did see his charges dismissed after the Eighth Circuit instructed a district court to conduct an analysis to determine if Cooper's drug use posed a danger to others. Today's decision to turn down Cooper means that the government can no longer continue to prosecute him for possessing firearms while using marijuana.
As Cooper's attorneys wrote in their reply to the government's cert petition:
All told, Chapter 922(g)(3)’s vast throw-out-the-baby-with-the-bathwater scope far exceeds the scope of any comparable legislation in effect at the time of the founding. See Cooper, 127 F.4th at 1096 (“‘disarming all drug users,’ regardless of the individual danger they pose, is not comparable to anything from around the time of the Founding.”). With respect to the all-drug-users-are-too-dangerous rationale apparently advanced by the Government, as Justice Gorsuch noted in his concurring opinion in Rahimi, the exercise of Second Amendment rights will surely pose some risks, and that was understood by the founders. Per Justice Gorsuch:
When the people ratified the Second Amendment, they surely understood an arms-bearing citizenry posed some risks. But just as surely they believed that the right protected by the Second Amendment was itself vital to the preservation of life and liberty.
And to paraphrase Justice Barrett in her concurring opinion, use of the “credible threat to the physical safety of another” standard in Rahimi, as incorporated by Cooper, achieves the appropriate level of generality – that is, a standard that does not require finding an exact historical regulatory twin, on one hand, but is not too general that it waters down the constitutional right to bear arms, on the other. Mr. Cooper’s take on the level of generality analysis is that Chapter 922(g)(3)’s disenfranchisement of all drug users of any drug is to apply a principle – that possession of firearms by any and all drug users creates danger – at such a high level of generality that it impermissibly, Mr. Cooper asserts, waters down if not washes away the Second Amendment right to bear arms.
The Supreme Court's denial of Cooper, rather than granting cert and holding it until Hemani is decided as the government requested, isn't conclusive proof that a majority of justices agree with where the Eighth Circuit has come down on 922(g)(3), but I don't think it's meaningless either. Again, it's one thing for SCOTUS to turn away a case where the defendant's conviction was upheld after an individualized analysis of his dangerousness took place. On some level, that just keeps the status quo in place. But with the Court allowing Mr. Cooper's charges to remain dismissed, I'd say that's a strong indication that a majority of the justices are, at least at this point, inclined to agree that the government must demonstrate a particular defendant is dangerous because of their drug use before they can be stripped of their Second Amendment rights and be charged with a federal felony merely for possessing a firearm while an "unlawful" user of drugs.
Such an approach would, at the very least, likely allow the vast majority of medical (and recreational) users of marijuana to avoid federal charges, unless the government could point to additional evidence for their dangerousness like it was able to do with Keshon Baxter, whose conduct while using drugs and possessing guns the district court declared was "nothing short of terrifying."
It seems to me that if SCOTUS had a big problem with the Eighth Circuit's rationale towards 922(g)(3) it would have held on to at least the Cooper case. A majority of the justices may be reluctant to endorse the Fifth Circuit's proposition that 922(g)(3) violates the Second Amendment in the vast majority of its applications, but I'm not convinced there are five votes to uphold the statute in every circumstance either.
