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PaperclipPerfector  1mo ago (text post)   24391 thread views

Culture War Roundup for the week of June 15, 2026

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I'm sure @gattsuru will have a more full analysis, but the Second Amendment case US v Hemani just dropped. The Supreme Court found that a man who unlawfully used a controlled substance cannot, by doing so, become automatically prohibited from possessing firearms. The big shock in this case is that it was 9-0.

Unfortunately, as is to be expected, the decision is so narrow as to likely not affect any other case.

The Court’s decision is narrow. It does not address efforts to ban addicts or those presently intoxicated from possessing a firearm; other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms; §922(g)(1)’s provision disarming individuals convicted of felonies; or whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s drug use renders him a danger to himself or others, or proof that a certain drug always renders its users dangerous.

One more subtle ramification: the under-21 cases. There's a handful of these sitting on the docket, and I do mean sitting. Each one hit a single conference and then disappeared: neither relist, denial, or formal hold. They weren't scheduled from the 6/18 conference.

These cases reflect a standing circuit split. One has already been GVR'd once before. There's a mix of interlocutory and final order cases, and cases where the law was found unconstitutional and where it was upheld. There's even a class action one thrown in for yucks.

The common knowledge was that they'd been held pending Hemani. That's a lot less plausible, now that Hemani's been constrained to its very specific borders. A GVR post-Hemani is a joke.

It's still possible that's the court wanted to get Hemani and off its plate first. But these cases notably weren't scheduled for the 6/18 conference, and presumably SCOTUS knew Hemani would be released at least a couple days before it dropped. and there's only one normal conference left this session: 6/25. If they're not listed for that one by Wednesday, they're not getting a grant.

The more morbid possibility is that the simplest under-21 challenges are self-mooting. That's why there's a class-action lawsuit at all, why the organizational plaintiffs have been cycling in and out new people, and why Reese had my dander up. Too many people hit their 21st birthday, or an organization doesn't announce replacement candidates fast enough, and the case not only disappears, even a lower court victory can be vacated. And while these cases hit a lot of people, signing onto a federal lawsuit is personally costly even if someone else is paying all the legal bills, especially for a 19-year-old who's living, studying, or working in a Blue State.

The reason it is 9-0 is because it is this narrow, the reason it is this narrow is because there's maybe 2 justices who actually believe bearing arms is a right on par with the other rights guaranteed against federal meddling.

Thomas, sure. Gorsuch, probably. Kavanaugh, maybe. Alito if he's magnanimous. Roberts might as well be nominated by Clinton for how he's ruled on guns, and Barrett strikes me as the same, easily closest to Roberts of the options on the court.

And, of course, it's defending a foreign terrorist, and not a law-abiding American. Because of course Americans can't expect to defend their own rights without some foreigner, it has to be some foreigner or it will never get to the SC in the first place.

I’ve been saying for a while the SC doesn’t do constitutional they do popularity contests combined with ideology of appointment wrapped in some constitutionally adjacent wordcelling.

I’m fairly convinced textually the 2nd Amendment is extremely broad, but that’s not what we have.

Constitutions are written not on paper but in the hearts of men. No amount of technocratic circonvolution can, ultimately, change this reality.

And, of course, it's defending a foreign terrorist, and not a law-abiding American. Because of course Americans can't expect to defend their own rights without some foreigner, it has to be some foreigner or it will never get to the SC in the first place.

This seems like a silly thing to say. What percent of gun law cases that make it to the Supreme Court do you think involve "persons" vs "citizens"?

I agree that the Supreme Court tries to shop for the right cases to try a legal theory, but I don't think it is as straightforward as, "of course, it's defending a foreign terrorist."

It is frustrating if you're familiar with all the various cases making their way through the circuits though. The Court seems to be consistently choosing gun cases with the worst, most complicated, least sympathetic facts while ignoring clean challenges with sympathetic petitioners.

It's one of those rough cases where there's not really a lot to talk about.

Will give a mea culpa that, when the case first got cert, I expected it to be either a loss or even-more-limited than this.

In theory, this is a big deal, since there's tens of millions of recreational pot users, and not a zero overlap with gun owners. In practice, this law was almost never brought as a random conviction: even in Hemani's case the feds were probably using it as a workaround for the multitude of other allegations that would have been harder to prove. Rough fermi estimate says low hundreds of charges on an annual basis, two or three thousands of extant prisoners, and for a lot of them there's indica of addiction, or individualized danger, of present intoxication, or of serious addiction. And pleas that get complicated when it comes to appeals. They might still get off with time served, or new cases brought, even if the feds could win in court, simply because no one really cases about the trivial cases enough to seriously fight it. But it's a limit in breadth.

While I'll argue against VanDerStok-style division of facial and as-applied challenges such that the as-applied ones are minimal, though, this case seems like a more natural use than most. If the feds had used this law as a real analogue to the habitual drunkard law, honestly, I don't think the court would have opposed it, and I don't think many gun orgs would have either. That's messy because a strict prohibition for marijuana definitely was within the original intent of the law, but it wouldn't be the first saving construction.

But in turn, the saving construction here isn't really splitting off parts of the law, just "you gotta try harder than this, bro". We'll see if that ends up mattering much at all.

There's some dicta fighting against the sometimes-hilariously broad levels of generality that the lower courts have been going with to justify pretty much any restriction. If lower courts were paying attention, the 'how' and 'why' emphasis could matter a lot. Big "if", though.

Makeup is kinda interesting. By the numbers, it's a unanimous 9-0. But Sotomayor and Jackson have a concurrence-in-judgement that's just an outright call to overturn Bruen and reinstate means-end scrutiny. And, notably, they do so without actually saying this conviction would fail under a means-end scrutiny. Kagan and Alito join a more conventional concurrence, where they basically say they'd stop at finding the habitual drunkard analog didn't cover this case. I think that's just dividing out the "Controlled Substances Act isn't tied to dangerousness as a category" reasoning, but I might be missing something more specific.

It's weird that it's come out before Wolford, which was argued months earlier. Not unprecedented, given the 'unanimous'-ish nature of this one, but suggests that there's a bunch of back-and-forths in Wolford's dissent.

It could make drug users dealing with ATF forms really interesting. And possibly some state permit-to-purchase laws go really weird. If lower courts apply it consistently. Gonna be real weird results downstream of it, but given New Jersey's reaction to Bruen, I don't expect them to suddenly get circumspect about past drug use.

The big shock in this case is that it was 9-0.

How is that surprising? The way it bridges between two topics that either side can find something to support or condemn makes this miracle much more likely and possible than if it was a cut-and-dry legal issue that left one side feeling like they just lost. Here, the liberals can see this as protecting the rights of drug users, conservatives can see this as protecting the rights of gun owners.

19 states (and DC) signed an amici arguing in favor of the prohibition as-applied here. It was very much not a given, and the result is a little more complicated than the 9-0 headline number suggests.

Text of decision

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