Commentary
Constitutional rights are not defeated by incantation. The Supreme Court’s decision in United States v. Hemani stands, whatever its internal divisions of method, for a proposition so elementary that its necessity in 2026 is itself an indictment of prosecutorial habit: the government must prove the reason it invokes, not merely pronounce it. Ali Hemani cooperated with federal agents, surrendered a firearm, disclosed his marijuana use freely, and was never charged with the terrorism the agents had originally suspected. More than six months later he was indicted under 18 U.S.C. § 922(g)(3) for possessing a firearm while an unlawful user of a controlled substance, facing up to fifteen years in prison and lifetime disarmament, on the strength of that candid self-disclosure. The government’s theory was sweeping by its own concession: the statute disarms a person the moment he becomes an unlawful user of any controlled substance, regardless of amount, regardless of substance, regardless of any demonstrated danger. That is not a law calibrated to danger. It is a law calibrated to convenience.
Justices of sharply different constitutional temperaments converged on the government’s failure, which is itself instructive. The majority, following the framework established in Bruen and Rahimi, examined both the “why” and the “how” of the historical analogues the government offered, chiefly the tradition of laws governing the habitual drunkard. The government pressed two justifications from that tradition: first, that it may disarm persons who are unusually dangerous and prone to violent crime; second, that it may disarm any group that regularly uses intoxicants as such. The Court found that the government had failed to prove Hemani’s marijuana use connected him to the first danger, and rejected the second rationale as impermissible on its own terms. Justice Jackson would have reached the same destination by means-end scrutiny. Justice Alito would have said no more than that the government had failed to support its claims on the record before the Court. Three roads, one terminus: a bare assertion of statutory authority, unaccompanied by the facts the Constitution demands, does not suffice.
The disciplined choice to resolve the case only as applied to Hemani deserves particular appreciation, because it is precisely the choice that a court confident in its institutional role makes and that a court intoxicated by doctrinal ambition too often declines. An as-applied ruling forces the government to produce actual evidence connecting its action to a permissible reason and to tie that reason to the particular person it seeks to disarm. It forecloses neither the statute’s future application nor a different outcome on a different record, one that genuinely connects a defendant’s drug use to the danger the relevant historical tradition recognizes. The Court said so plainly: that is not a loophole. It is the implementation of constitutional rights at their best, requiring the right reason, proven on the facts. Critics who greet this as judicial usurpation have the complaint inverted. The usurpation lay in the government’s original theory, which asked that the Second Amendment yield to a label rather than to a demonstration.
There is a standing temptation in republican government to let procedural forms do the substantive work of tyranny, to clothe an act of will in the garments of legal category and dare the courts to look beneath the cloth. When that temptation goes unchecked in prosecutors’ offices and goes unresisted in courtrooms, rights become fictions maintained on paper while surrendered in practice. The republic that emerges from that habit is not one governed by laws but one governed by officials who have learned that naming a law is sufficient. Courts exist, among other reasons, to enforce the difference. When they cease to do so, the constitutional structure does not disappear at once; it hollows quietly, from within, until the form stands and the substance is gone, and the citizens, having lost the habit of demanding proof, no longer notice.