This week we've seen an onslaught of amicus briefs filed in support of Hawaii's "vampire rule" banning concealed carry by default on all private property ahead of the Supreme Court's oral arguments in Wolford v. Lopez next month. Close behind that case is the Court's consideration of U.S. v. Hemani, where the Trump administration is appealing a Fifth Circuit Court of Appeals decision that held the federal ban on gun possession by "unlawful" users of drugs is unconstitutional in many circumstances.
Ali Danial Hemani's brief is due before the Court on January 20, with supporting amicus briefs following a week later. On Tuesday we reported the surprising news that the American Civil Liberties Union is helping write that brief, and today we've got another surprise: the amicus brief that will be submitted by the New York State Rifle & Pistol Association in support of Hemani will be penned by attorney William A. Brewer and his associates.
Brewer, you might recall, served as the National Rifle Association's outside counsel for a number of years, and was the lead attorney in NRA's lawsuit against former New York State Department of Financial Services director Maria Vullo that argued Vullo had tried to strongarm financial institutions in the state to stop doing business with the NRA or else risk adverse regulatory actions; a lawsuit that NRA won before the Supreme Court in May, 2024.
The case was remanded back to the Second Circuit, however, which declared in July of this year that Vullo was entitled to qualified immunity for her actions, even if they violated the First Amendment rights of the organization. The NRA has appealed the Second Circuit's decision, and the Supreme Court is slated to discuss NRA v. Vullo once again at its January 23 conference.
The NRA is no longer being represented by Brewer, however. One year ago today Brewer and Associates announced it was concluding its representation of the organization, and wished the NRA "a joyous holiday, a bright new year, and another century of successful constitutional advocacy."
As The Reload's Stephen Gutowski noted at the time, many NRA board members advocating for fundamental reforms to the organization weren't exactly broken hearted over the severed relationship, pointing to the $200 million in legal fees Brewer had generated as one of the major reasons for the NRA's financial struggles.
Brewer, though, still has supporters on both the NRA board of directors as well as the board of trustees for the NRA Foundation, whose current president is none other than New York State Rifle & Pistol Association head Tom King.
In a statement provided by Brewer and Associates, King called the Hemani case a "defining moment" and a "reminder that constitutional freedom must never be weakened by vague or overreaching government power," adding that the NYSRPA's association with Brewer "ensures that the Supreme Court will hear a powerful defense of individual liberty.”
Brewer, for his part, says that the firm is aligning with the ACLU and others "in recognizing the importance of the questions posed in the Hemani matter." Brewer didn't outline specifics of the upcoming amicus brief, but declared that it will "make the case for a straightforward, principled approach to the Constitution – one that protects freedom while ensuring fairness in the law.”
It'll be interesting to see what approach the amicus brief takes, given that there's essentially a four-way circuit court split on the constitutionality of 922(g)(3). The Fifth Circuit's rationale is essentially that the statute is unconstitutional unless it's being enforced against someone who is actively intoxicated while possessing firearms, while the Eighth Circuit has suggested that 922(g)(3) is constitutionally sound only when there is an individual finding of dangerousness for a drug user who possess firearms.
The Third Circuit has taken a similar approach, holding 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 suggesting that there may be some drug users who don't pose a special danger of misusing firearms. Finally, the Seventh Circuit and several other appellate courts have declared 922(g)(3) constitutional in every application, citing the Heller decision's statement about the presumptive constitutionality of laws barring felons and others from possessing firearms.
If the NYSRPA is supporting Hemani, then the last option is clearly off the table when it comes to their amicus brief. Whether or not the group aligns with any of the appellate courts or stakes its own position, though, remains to be seen. The ACLU's executive director said this week that the federal government "should not be able to subject millions of Americans to felony prosecution based on the false presumption that marijuana use makes people so dangerous that they cannot possess a firearm"; a position that no appellate court has wholeheartedly embraced.
New York is one of 24 states where lawmakers have said marijuana can be used recreationally or medicinally, so the Hemani case does have important stakes for many residents. For both gun owners who'd like to use cannabis or marijuana users who'd like to legally own a gun, whatever the Supreme Court decides in Hemani will impact them going forward, and I'm glad to see the New York State Rifle & Pistol Association siding with the notion that partaking in a drug that's been approved for recreational use in almost half the states and medical use in 80% of the country shouldn't automatically deprive someone of their right to keep and bear arms.
Editor's Note: Christmas is coming a little early here at Bearing Arms!
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