Commentary
There is a particular kind of judicial courage that looks like courage from the front and reveals itself, on closer inspection, to be a very dignified retreat. The Supreme Court last week decided United States v. Hemani in favor of a man prosecuted for possessing a firearm while smoking marijuana approximately every other day. The outcome was just. The statute under which Ali Hemani was charged, 18 U.S.C. § 922(g)(3), forbids firearm possession by an “unlawful user” of a controlled substance, a phrase so porous that the government could not, when pressed at oral argument, settle on a coherent account of whom it covers. Does it reach the person who tried a drug once? The weekend user? Someone who used every other day, as Hemani did? Or only a person actually impaired while armed? The text, as the source before us observes, is silent. Justice Gorsuch, who authored the majority opinion and who pressed the government at argument with the observation that it “has not been able to define what a user is,” knew this. The court knew this. And then it wrote an opinion that does not say so.
Instead, the majority wrapped its ruling in the language of the Second Amendment and the Founding era’s treatment of “habitual drunkards.” Gorsuch found that the historical laws governing such persons reached them not because they used intoxicants regularly but because their conduct “rendered them practically incapacitated and incapable of managing their affairs,” and that those laws “differ dramatically” from Section 922(g)(3) “on every single metric the government invites us to consider.” That is a serious constitutional analysis, and its conclusion may well be correct. But the animating discomfort behind it, as the source argues with precision, is a vagueness intuition dressed in constitutional clothing. The real grievance against this prosecution, the one visible to every member of the court who questioned the government’s shifting and irreconcilable definitions, is that no citizen can read this statute and know whether his conduct is criminal. That is not a Second Amendment problem. That is a due process problem, a separation of powers problem, a problem as old as the principle that the legislature, not the prosecutor, must draw the line between the lawful and the unlawful.
The tragedy of this opinion is not its result but its reticence. The court possessed an instrument ready to hand: a narrowing construction that would have confined the statute to its defensible core, those actually impaired while armed, and resolved the case without constitutionalizing what is fundamentally a statutory failure. The source describes this approach, advanced in an amicus brief, as “major-questions lenity” or “vagueness avoidance,” and it was precisely the kind of restrained, court-limiting move that constitutional modesty demands. By declining that path and reaching instead to the Second Amendment, the court decided this one case while leaving prosecutors, defendants, and lower courts across the country with no usable principle for the next one. The defendant won. The law did not. And the circuits will now be left to divine, from an opinion that asked “how much marijuana does Mr. Hemani use, in what potency” without providing any answer, what the Constitution actually requires. A court that truly respects its own authority does not leave that question dangling; it answers it, or it confesses plainly that the statute, not the Constitution, is the source of the trouble.
The republic’s courts are its most precious institutional inheritance precisely because they are, at their best, the one place where reason governs and evasion is forbidden. When a court sees a vague criminal statute giving prosecutors an unbounded discretion to choose their defendants, and then declines to say so, it does not protect the Constitution. It passes the cost of its own uncertainty onto the citizens who must live, or fear to live, under a law whose reach no one can describe. Hemani is free, and rightly so. But the court owed him, and the country, a clearer accounting of why.