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Last week, the Supreme Court decided the case of United States v. Hemani in the defendant’s favor. The government had prosecuted Ali Hemani under 18 U.S.C. § 922(g)(3) – which makes it a felony for an “unlawful user” of a controlled substance to possess a firearm – on the ground that he smoked marijuana about every other day. The court deemed that prosecution inconsistent with the Second Amendment. The outcome for Hemani is the correct one. But the most revealing thing about the court’s opinion may be what it never admits – that the real issue with Hemani’s prosecution was a statute so vague that no one can say whom it covers.
Section 922(g)(3) bans firearm possession by an “unlawful user” of drugs. That phrase is vague. It doesn’t clearly draw a line between who along the spectrum of drug users is covered and who is not. Does it cover someone who tried a drug once? The weekend smoker? Someone who used every other day, like Hemani? Or only someone who is high while actually possessing a gun? The text is silent.
The unclear statute was front and center in this case. The first argument in Hemani’s brief was that the “unlawful user” prong is void for vagueness because it doesn’t adequately define the line between lawful and unlawful conduct. Vague language in a criminal statute undermines due process and the separation of powers by effectively delegating the legislative task of crime definition to prosecutors, thereby inviting arbitrary enforcement and failing to provide sufficient notice.
In an amicus brief supporting Hemani, and in a December column for SCOTUSblog, I pressed a gentler version of the same point, arguing not for invalidation, but for a narrowing construction that would save the statute by confining it to its clear core – those impaired while armed – through a rule of what I have called “major-questions lenity” or “vagueness avoidance.” That approach would have allowed the court to resolve the case on a statutory ground without ever reaching the Second Amendment question.
The vagueness concerns were not lost on the justices. At argument, the statutory phrase “unlawful user” drew sustained fire from several members of the court, most pointedly from Justice Neil Gorsuch (who authored the majority opinion in Hemani). He told the government it “has not been able to define what a user is” – noting that it had previously taken the position that the term “unlawful user” covered anyone who used a drug “in the past year,” then argued that “a pattern” was needed, and then advocated for a confusing “habitual [use]” gloss that “conflates” the user prong with the statute's separate “addict” prong. “[T]ell me how [that’s] so clear,” he pressed the principal deputy solicitor general.
Yet in his majority opinion, Gorsuch chose not to focus on vagueness but on the Second Amendment – or at least it appears that way at first blush. Gorsuch surveyed the Founding-era treatment of “habitual drunkards” under the Second Amendment (a category of persons that the government contended was analogous to drug users) and concluded that those laws reached such people not because they used intoxicants regularly but because their drinking “rendered them practically incapacitated and incapable of managing their affairs.” Measured against that tradition, the habitual-drunkard laws “differ dramatically” from Section 922(g)(3) “on every single metric the government invites us to consider: They targeted different kinds of people, did so for different purposes, and operated in different ways.”
As to vagueness, the opinion said nothing expressly. But the majority’s stated discomfort with Hemani’s prosecution is actually a vagueness intuition in Second Amendment dress. In the course of Gorsuch’s constitutional analysis, he asked “how much marijuana does Mr. Hemani use, in what potency, and to what effect? Is he routinely unable to manage his affairs, a risk to himself or his family?” Or does he “use a mild gummy as a sleep aid a few times a week?” The answer, Gorsuch noted, is that “[w]e do not know and, the government says, it doesn't matter.” That is an objection to a prosecution under a statute that fails to provide a clean separation between the conduct it covers and that which it does not. The court felt the vagueness defect but answered it with Second Amendment analysis rather than naming it for what it was.
That approach is somewhat surprising given that Gorsuch authored the majority opinion. As noted already, no justice pressed the indefiniteness of “unlawful user” harder at argument than he did, and none has done more in recent years to champion the vagueness doctrine and the closely related rule of lenity in concurring opinions. Under the rule of lenity, courts are to construe unclear language in criminal statutes against the government.
So why didn’t Gorsuch address the vagueness concerns head on? The likeliest explanation is institutional. He was writing for the court, not for himself. A majority opinion must hold its majority, and squarely embracing a vagueness angle may have risked fracturing the seven-justice coalition. The assignment to write the majority opinion may have dictated restraint in this case. In the past, Gorsuch has had a difficult time attracting more than one or two of his colleagues to the robust vagueness or lenity rationales he has articulated in concurring opinions; most of his colleagues have preferred other rationales that they likely perceive as more modest.
Indeed, restraint may have been the point of the assignment. When the chief justice is in the majority (as he was here), he decides who writes the majority opinion. If he wanted to keep the vagueness questions out of the spotlight, handing the pen to Gorsuch was a shrewd way to do it. The author of the majority opinion must speak for the court, while a justice left to write separately may speak more freely. Assigning Gorsuch the majority opinion captured his vote and may have prevented a concurring opinion in which Gorsuch would have made the matter of vagueness impossible to ignore.
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Does any of this make a difference? As a practical matter, the court's result is close to what my approach would have produced. My proposed construction of the statute drew one clear line – that the statute reaches those intoxicated while armed, and no one else. The majority, by contrast, declined to construe the statute at all. It concluded that the Second Amendment prevented Hemani’s prosecution and went out of its way to stress that its decision was “narrow.” The court made clear, for example, that its opinion did not address the possibility of disarming “addicts” or “those presently intoxicated,” a prosecution under Section 922(g)(3) backed by “individualized proof that the defendant's drug use renders him a danger to himself or others,” or disarmament under a separate provision concerning convicted felons. But again, for Hemani and other marijuana users prosecuted on the same theory, the practical result is identical to what I sought.
Yet the reasoning matters in ways that will outlast this case. The point of construing the statute was never for Hemani’s sake alone. A decision based on a narrow construction grounded in a generic rule would have given lower courts a tool for the next vague criminal statute, and the one after that. The court’s constitutional holding in Hemani offers nothing portable – it is welded to Section 922(g)(3) and to the Second Amendment's history-and-tradition test. And it is ad hoc: a fact-bound ruling that announces no general principle.
The court’s decision does not even settle Section 922(g)(3) itself. As described, we still cannot say whether the government may prosecute someone presently intoxicated while armed, an addict, or a user whose history differs from Hemani’s by a degree. Each must now be litigated case by case, through the same laborious search of the historical record, inviting exactly what Justice Ketanji Brown Jackson warned about in her concurring opinion – “inconsistent and arbitrary application, as judges draw different conclusions from the same historical evidence and reach divergent assessments of the same laws.”
Following the decision in Hemani, the statutory phrase “unlawful user” remains on the menu of federal crimes a prosecutor may invoke, and it still does not tell us exactly who is covered. The court did not strike the statute and tell Congress to say clearly who should be disarmed. It instead told prosecutors to build a stronger record that a particular drug's users are dangerous, and try again.
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None of this dims the good news. The court’s decision in Hemani did defeat a truly alarming theory of prosecutorial power. Gorsuch correctly chastised the government for attempting to turn certain drug use into a basis for lifetime disarmament on its bare say-so. And the vagueness argument survives for the next defendant and the next statute.
Nevertheless, the court refused to name the defect that its own questions at argument exposed – that the real trouble with Section 922(g)(3) is not its tension with the right to keep and bear arms, but its failure to define the line between criminal conduct and lawful conduct. The court did not so much resolve that problem as redescribe it, and a vagueness problem in Second Amendment dress is a vagueness problem still. The next court to face Section 922(g)(3) would do better to call it by its name. Given the refusal to do so in Hemani, the justices themselves may face that choice sooner rather than later.
