{"id":221,"date":"2026-06-22T13:40:21","date_gmt":"2026-06-22T13:40:21","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=221"},"modified":"2026-06-22T13:40:21","modified_gmt":"2026-06-22T13:40:21","slug":"hemani-proving-the-reason-not-just-naming-it","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=221","title":{"rendered":"Hemani: proving the reason, not just naming it"},"content":{"rendered":"
\n

It\u2019s not often that opinions written by Justices Neil Gorsuch, Ketanji Brown Jackson, and Samuel Alito agree on how to decide a Second Amendment case. In United States v. Hemani<\/em> they did, though each took a slightly different road to get there. The majority looked to the justifications behind Founding-era historical analogues. Jackson would have used means-end scrutiny. Alito would have said as little as possible beyond the government\u2019s failure to back up its claims on the record. But beneath the disagreement about method lay a shared instinct about substance. The government cannot disarm a person simply by naming a permissible reason. A government could do that in any case to defeat a right. What it must do is prove that the permissible reason it names is the reason it acts on, and to tie that reason to the person it seeks to disarm.<\/p>\n

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Here, the government failed to do that with respect to Ali Hemani. A future case, built on a different record that connects a defendant\u2019s drug use to the danger the relevant history recognizes, could come out the other way. That is not a loophole. It is the court implementing constitutional rights at their best: a demand for the right reason, proven on the facts.<\/p>\n

How the case arose<\/strong><\/p>\n

The facts are spare. Federal agents searched Hemani\u2019s family home in 2022 on a suspicion of terrorism-related activity. They never charged terrorism. Hemani cooperated. He surrendered a gun, pointed agents to marijuana on the property, and told them he used marijuana about every other day. More than six months later, the government indicted him under 18 U.S.C. \u00a7 922(g)(3) for possessing a firearm while an \u201cunlawful user\u201d of a controlled substance. It rested the charge on his marijuana use alone. For that, he faced up to 15 years in prison and disarmament for life.<\/p>\n

Under the court\u2019s precedent in New York State Rifle & Pistol Association Inc. v. Bruen<\/em> and United States v. Rahimi<\/em>, the Second Amendment analysis runs in two steps. First, a court asks whether the Second Amendment\u2019s text covers the conduct. If it does, the Constitution presumptively protects it, and the government then bears the burden of showing the regulation at issue is consistent with the nation\u2019s historical tradition of firearm regulation. To do so, the government must look to the history of firearm regulation. The court has said two features are important in this historical analysis: both the \u201cwhy\u201d and the \u201chow.\u201d More about how those relate to each other below.<\/p>\n

The government conceded that \u00a7 922(g)(3) burdens protected conduct (being the right to possess a firearm). So it set out to carry the historical burden, and the version of the statute it defended was a sweeping one. On its reading, the statute disarms a person the moment he becomes an unlawful user of any controlled substance, and it does so until he stops. The amount does not matter. The substance does not matter. Whether the government has demonstrated that the person is dangerous does not matter. To carry its burden, the government offered one tradition pointing to a historical \u201chow\u201d: laws that once governed the \u201chabitual drunkard.\u201d That type of law provided two reasons the government said justified its action. The first \u201cwhy\u201d was the need to protect the public from \u201cunusually dangerous\u201d individuals who commit \u201cviolent crime[s].\u201d The second was that the government is permitted to disarm any groups that regularly use intoxicants.<\/p>\n

The Supreme Court concluded that the government failed to prove its action was tied to the first reason. And it rejected the second reason as not a permissible one. How the court tested those reasons reveals what the Second Amendment actually demands.<\/p>\n

A failure of reasons, and of proof<\/strong><\/p>\n

To begin with, the court rightly resolved the case only as applied to Hemani. That was the disciplined choice. In an as-applied challenge, a court can demand that the government produce evidence connecting its action to a permissible reason, and it can make sure the government isn\u2019t actually acting on excluded reasons through that evidentiary demand. That same evidentiary scrutiny generally does not translate to facial challenges (that is, a claim that the law is invalid in all cases), where the individual litigant drops out of view. By resolving things narrowly, the court left for another day the questions it could not responsibly answer here: the disarmament of addicts, of the presently intoxicated, and of users a legislature has specifically found dangerous.<\/p>\n

Reviewing the as-applied challenge, let us start with the government\u2019s argument that history supports a purpose of disarming any group that regularly uses intoxicants. As the court pointed out, a habitual drunkard, at the Founding and for decades after, was not simply a frequent drinker. He was someone whose intoxication left him incapacitated. Early America drank heavily, and the laws still reached only the incapacitated. Section 922(g)(3), on the government\u2019s reading, reaches anyone who regularly uses any scheduled substance, without regard to incapacity. That is a wholly different target.<\/p>\n

The government also asserted that its justification for prosecuting Hemani was a concern about dangerousness, and that \u00a7 922(g)(3) disarms unlawful users to protect the public from those who are unusually dangerous. The court suggested that unusual dangerousness was more promising as one of the \u201canimating purposes\u201d for historical regulation of firearms. However, the decisive question in an as-applied case is whether the government\u2019s stated reason is an actual reason, supported by the evidentiary record, or an unsupported assertion. Here the government disclaimed any need to show that Hemani\u2019s use made him unusually dangerous. It asked the court to treat regular marijuana users as categorically dangerous, in its own words, \u201cwithout any further showing.\u201d So nothing in the record connects his disarmament to the reason the tradition licenses. <\/p>\n

The court refused to uphold the government\u2019s assertions about dangerousness on the government\u2019s mere \u201csay-so,\u201d without \u201cany further showing.\u201d The court\u2019s own reservations name the gap. It left open \u201cwhether the government could bring a prosecution\u201d backed by \u201cindividualized proof\u201d about the defendant\u2019s dangerousness, or one resting on proof that \u201ca certain drug always renders its users dangerous.\u201d The government chose not to supply either of these factual nexuses.<\/p>\n

The point is not academic, as the court\u2019s hypotheticals show. On the government\u2019s theory, the same rule reaches the husband who regularly takes his wife\u2019s Ambien to sleep and the student who uses a friend\u2019s Adderall to study. The drug \u201cmakes no difference,\u201d the court observed, nor does \u201chow much an individual uses or the effects it has on him.\u201d As the court put it, \u201cto state the analogy is to expose its deficiency.\u201d Without a factual nexus to dangerousness, the government could prevail against people like these too, on nothing more than regular usage of those controlled substances. The reason would do no work. The bare fact of use would carry the case. That is the result the court wisely declined to accept.<\/p>\n

This is also a case about pretext, and the court treated it as one. Even assuming that disarming those shown to be dangerous is a permissible reason, the court doubted that dangerousness was the reason the government was actually acting on here. Section 922(g)(3) borrows its triggering category from the Controlled Substances Act, a statute whose schedules are populated for reasons of public health and drug control that often have nothing to do with violence. And the government\u2019s own conduct cut against its asserted reason. It curtailed marijuana enforcement, reclassified some marijuana products, and watched most states legalize this drug. Having helped build that landscape, the government is, as the court put it, \u201cawkwardly positioned\u201d to call the millions who use marijuana categorically dangerous.<\/p>\n

I have written that pretext analysis of this kind is necessary to make sure the government is actually acting on permissible reasons in as-applied settings. The 2015 case of Holt v. Hobbs<\/em> is a good illustration of why. There, a Muslim prisoner sought to wear a short beard for religious reasons, and Arkansas offered prison security as its reason for refusing. But the state allowed the same beard for medical reasons and already searched prisoners\u2019 hair and clothing. It regulated the religious beard while tolerating the identical risk everywhere else. That is the tell. If pointing to a permissible reason like prison security were enough, the government would always win. But it is not enough: The government must prove the connection between its action and that reason with evidence, and Arkansas could not. Hemani<\/em> runs the same test. The reason the government pressed was not the reason it acted on elsewhere.<\/p>\n

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Put these threads together and a single method emerges. A limited number of permissible reasons fixed by history. A presumptively as-applied posture. A demand that the government factually connect its action to that reason. And a check against pretext.<\/p>\n

This is not freewheeling judicial balancing of different interests, and it is not wooden analogue-hunting either. It is disciplined scrutiny, grounded in history and constrained by the evidentiary record. It is precisely the analysis I have argued for elsewhere. Without this combination, the court warned, a \u201cbroad power to designate any group as dangerous\u201d would let the government \u201cquickly swallow\u201d the Second Amendment.<\/p>\n

A right is a constraint on reasons<\/strong><\/p>\n

We sometimes picture a constitutional right as creating an impenetrable wall. On one side sits protected conduct the government may not touch. On the other sits everything it may regulate. Some categorical rights do operate this way. But most don\u2019t. Generally, a right operates as a constraint on the reasons the government may act on. It does not forbid the regulation. It forbids the wrong justification for it. In other words, it is a wall with certain permitted gates of entry.<\/p>\n

As I explain in greater length elsewhere, a constitutional right is a protected reason. It gives the government a first-order reason to protect the interest the Constitution names, here the interest in keeping arms for self-defense. And it gives a second-order reason that excludes certain justifications for interfering with that interest. The right is the giving of reasons by the Constitution\u2019s makers to the government both to protect a specific interest identified in the Constitution, and to exclude certain additional reasons for interfering with that interest.<\/p>\n

It is worth noting how the court\u2019s Second Amendment doctrine has moved in this direction since Bruen<\/em>. There, the court asked whether history furnished an analogue for a modern gun law. Rahimi<\/em> asked something subtly different. It asked whether the government had a \u201cpermissible reason\u201d for disarming or restricting certain firearm uses, rooted in history. That shift is an important and positive change in trajectory that Hemani<\/em> continues, and it tracks how constitutional rights ought to work.<\/p>\n

Read this way, the court\u2019s historical inquiry is doing a specific kind of work. The court frames its test as the \u201cwhy\u201d and the \u201chow.\u201d But in Hemani<\/em> the \u201chow\u201d really serves the \u201cwhy.\u201d The historical analogues, whom the drunkard laws reached and how they operated, are not the object of the inquiry. They are the instrument. The court studies how the old laws worked in order to identify the reason they served. That reason was incapacitation. The drunkard laws, the court explained, reached those whose drinking \u201crendered them practically incapacitated and incapable of managing their affairs.\u201d They did not reach the regular drinker. So the history matters because, as in Rahimi<\/em>, it fixes which type of justification is permissible, not because the modern law must mirror an old one for its own sake. The government wanted to rely on the justification of its need to disarm any regular user of controlled substances. The history pointed to disarming a regular user only if such use incapacitated that individual. Those are different reasons, and that difference decided the case.<\/p>\n

The concurrences<\/strong><\/p>\n

The separate writings point in the same direction from different angles.<\/p>\n

Alito, joined by Justice Elena Kagan, would decide the case on the single ground that the government\u2019s analogues reach only the incapacitated, and say no more. He catalogues what the record does not show: \u201chow much he used, the strength of the marijuana he used, how many times he used it \u2026 or the degree to which this use affected his ability to exercise judgment.\u201d<\/p>\n

Jackson, joined by Sotomayor, would replace Bruen<\/em> with means-end scrutiny, faulting its history-and-tradition test as unworkable. She reads the majority as implying that \u00a7 922(g)(3)\u2019s \u201coperation is not sufficiently tailored to the government\u2019s stated purpose\u201d (to disarm dangerous persons), which she calls \u201cprecisely the issue to which means-end scrutiny would direct our focus.\u201d<\/p>\n

She is right that the court is doing a kind of means-end scrutiny. She is wrong that this makes the historical inquiry dispensable, or that it requires judicial balancing. It is a type of means-end scrutiny that is historically grounded and evidentiarily disciplined. The history helps illuminate the permissible ends that could limit defeasible constitutional rights, and the court must then demand proof that the government\u2019s means actually serve them.<\/p>\n

Each opinion is circling the same question the majority answers: whether the government\u2019s reason fits what it has done, and whether its actions are actually in service of a permissible reason.<\/p>\n

The essence of a right<\/strong><\/p>\n

Hemani<\/em> shows what can unite an otherwise fractured bench. The lesson is not that the government may never disarm dangerous or incapacitated individuals under this statute. It is that a reason does no work until the government proves it and ties it to the person before the court. A government that needs only to name a danger can manufacture one in any case, against any right. So the court demanded more. It required a permissible reason drawn from history. It required proof on the record. It required a check against pretext. That discipline is not an obstacle to legitimate regulation. It is constitutive of the right itself.<\/p>\n

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It\u2019s not often that opinions written by Justices Neil Gorsuch, Ketanji Brown Jackson, and Samuel Alito agree on how to decide a Second Amendment case. In United States v. Hemani they did, though each took a slightly different road to get there. The majority looked to the justifications behind Founding-era historical analogues. 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