Founding fathers' drinking habits debated in Supreme Court gun rights case

WASHINGTON − The drinking habits of the founding fathers were fodder for the Supreme Court on March 2 as the justices wrestled with whether someone’s use of marijuana and other drugs makes them too dangerous or irresponsible to have a gun.

Because the government points to historical laws about habitual drunkards as support for modern gun rules, Justice Neil Gorsuch noted that it took a lot of alcohol consumption for someone in the 1700s to be considered an habitual user.

John Adams drank a tankard of hard cider for breakfast. James Madison reportedly downed a pint of whiskey a day. Thomas Jefferson viewed his three-four nightly glasses of wine as a modest amount, Gorsuch said.

“Are they all habitual drunkards who would be properly disarmed for life under your theory?” the conservative justice asked the government attorney defending the prosecution of a man charged with owning a gun despite regularly using marijuana.

Potentially big implications

The case has potentially big implications both for the tens of millions of Americans who use marijuana – a substance that’s legal in some form in most states − and for the ability of lawmakers to control who can have a firearm.

It’s a felony under the Gun Control Act of 1968 for anyone who is “an unlawful user of or addicted to any controlled substance” to have a gun, but the conservative Supreme Court has recently said gun regulations are unconstitutional unless they are "consistent with this nation's historical tradition of firearm regulation.”

How the justices decide the case argued on Monday could not just affirm or invalidate the 1968 law, but could also clarify the historical tradition test that’s led to a spike in challenges to gun rules – and much confusion in lower courts – since it was created in a 2022 ruling. 

Justice Ketanji Brown Jackson, one of the court’s three liberal justices, expressed frustration with that test.

“I don’t understand how this works anymore in any meaningful way,” she said.

Lower court sided with drug user

At the center of the case is Ali Danial Hemani, a dual citizen of the United States and Pakistan whom the FBI had been monitoring because of his alleged connection to Iran’s paramilitary Revolutionary Guard. The government has designated the guard a global terrorist group.

During a 2022 search of his Texas home, Hemani told the agents he had a Glock 9mm pistol and also said he used marijuana “about every other day.”

Although the government tried to detain Hemani on more serious allegations of criminal activity, he was charged only with having a gun while being an unlawful user of marijuana. Violating that law is punishable by up to 15 years in prison.

The New Orleans-based 5th U.S. Circuit Court of Appeals said that the gun ban can’t be applied to Hemani.

While history and tradition support “some limits on a presently intoxicated person’s right to carry a weapon,” the appeals court said, “they do not support disarming a sober person based solely on past substance usage.”

Justice Department points to historical laws about drinkers

Asking the Supreme Court to overturn that decision, the Justice Department argued that laws existing at the time the country was founded restricted the rights of habitual drinkers, even when they were sober.

Justice Amy Coney Barrett, one of the court's six conservatives, agreed that the government can keep guns out of the hands of dangerous people. But she questioned whether that should apply to every controlled substance.

“Maybe THC concentrations are higher nowadays and that does have bad mind-altering effects and maybe it gives rise to violence,” she said. “My concern is, I just don’t see that that determination was made here.”

Sarah Harris, the Justice Department attorney who argued the case, said there’s at least a “common sense notion that when you are frequently using mind-alerting substances, you are in a class of people who represent a special danger of misuse just so long as you're habitually doing it."

Several justices pushed Harris on why the law shouldn’t be narrowed to apply only to those who are addicted to drugs, rather than also sweeping in regular users.

“If you’re frequently using heroin regardless of whether you’re addicted to it, it is a fair judgment to make that you are exceptionally dangerous,” Harris said.

Potential reclassification of marijuana is raised

Erin Murphy, the attorney representing Hemani, countered that the whole point of the historical laws was to distinguish between drinkers and drunkards.

The modern law, she said, can’t sweep so broadly “to capture something that is the type of thing that people regularly, all throughout the country, lawfully use a few days a week,” she said.

“And most states and the president have made the judgment that this is not so categorically addictive or dangerous that no one can use it safely,” Murphy added, referencing the fact that President Donald Trump has moved to reclassify marijuana to a less dangerous category of drugs.

Gorsuch, the conservative justice who pushed hardest against the government’s position, said that potential reclassification makes Hemani’s case an odd one for the Justice Department to use to defend the law.

“What do we do with the fact that marijuana is sort of illegal and sort of isn't and that the federal government itself is conflicted on this?” he asked.

Chief Justice John Roberts, one of the few justices who showed much sympathy for the government’s position, raised practical and other concerns about courts making individual determinations about how dangerous and addictive a particular drug is.

“It just seems to me that takes a fairly cavalier approach to the necessary consideration of expertise and the judgments we leave to Congress and the executive branch,” he said.

A decision in U.S. v. Hemani is expected by summer.