This opinion is great for the Second Amendment community and the country as a whole.
First, what is the “Holding”. The holding is the courts ruling in the case. This is the thing that is of interest to the parties directly involved. It is the guilty/not guilty part of the case.
The Fifth Circuit Court of Appeals issued a Per Curiam opinion on January 31st, 2025. They found that 18 U.S.C. §922(g)(3) was unconstitutional as applied to Mr. Hemani. Per Cuiam means that there were no oral arguments before the court as the court felt there was no need. They had enough information based on what had been filed with them. They may or may not have considered what the parities had to say or they could have just read what the lower court’s opinion was.
Regardless, they ruled that Mr. Hemani could not be charged under §922(g)3.
One of the interesting details of this case is that Mr. Hemani had no other charges against him. There was the sole count (information) that he had violated 18 U.S.C. §922(g)3. The government was arguing that his admiting to using pot several times a week and there being a gun in his home was enough to get him 15 years behind bars and the loss of his firearms rights.
The United States was not happy about this outcome. They appealed to the Supreme Court, and Certiorari was granted.
As a Second Amendment advocate this scared me. I, and others, were concerned that The Court would issue a weak opinion because Hemani is a bad man. Yeah, he is. His mother is worse and his father not much better. They are actively interacting with foreign bad actors. This is barely touched on in this opinion.
The Court continues to remind us that no right is absolute, but this opinion does a good job of explaining that “no right is absolute” requires the government to do the heavy lifting of text and historical tradition.
So what is the focus on this opinion and why do the liberals dislike the opinion they signed on to?
The focus is on how to determine if there is a match to this Nation’s historical tradition of firearms regulation.
It starts by saying that it does not address if 1864 or 1791 is the proper date.
Why?
Because this is federal gun law. The only date possible is 1791 and The Court knows this. The Court explicitly states this does not answer that question but not why. It goes on to say it doesn’t matter because the government loses regardless of the year.
But the opinion starts by given a better definition of “text”. <q>To determine when the government infringes the Second Amendment, we begin by asking whether the Amendment’s terms cover the conduct in question.</q> This is a wider definition than “the text of the Second Amendment”. In Heller The Court defined “terms” this reference harkens back to the Heller decision.
We’ve defined these terms, use them. An important but subtle thing.
We move on to “require a historical twin” or “precise … historical precursors”. And this is where it starts to get good.
Gorsuch explitcly states that while a historical regulation must match in “why” and “how”, these are not the limit on what must match. There are other features that might cause failure. The anti-gun people will try to twist this to mean that “how” and “why” don’t have to match if they find something else, but that’s not my reading of the line.
Be on the lookout for new arguments from the state (bad guys) arguing that some new simularity between today’s regulation and some past regulation make them the same. Look, both these laws talk about spitting; this means we can ban guns if you spit on the sidewalk.
Regardless, the rest of the opinion focuses heavily on how to compare a modern regulation’s “how” and “why” to this Nation’s historical tradition of firearms regulation.
In the end, the holding is as applied to Mr. Hemeni. In reality, parts of §922(g)3 will change or have changed. Parts of the form 4473 will need to change. People being put in prison for smoking pot will stop. And the link of §922(g)3 to the Controlled Substances Act(CSA) is broken, forever.
The place where things get more interesting is in Justice Thomas’ concurance. First he agrees with everything the opinion has to say, but then he says that somebody really should question if §922(g) is consistent with the Constitution.
This is as big if not bigger than his concurance on a resent Per Curium where he said that it was time The Court started issuing Per Curium opinions to help regular people, not just criminals and not over trivial mistakes that make no difference in the outcome. He wrote this to address the fact that The Court will often grant cert and then issue a Per Curium when some technical issue happened at the appellate court or lower court. Frequently these Per Curiums change nothing in the final out come but do inform the inferior courts on how to act.
Here hs points out that Congress has been using the commerece clause to gather power where they are not authorized any. The original meaning of the clause was to make sure that the states were not messing with each others commerce. That goods made in one state could be sold in another without teriffs or other government busy body actions.
The Congress has created laws that punish people for making things for use by themselves because that means they are not buying from someone else (commerce) and that someone else could be out of state, therefore affecting interstate commerece. Seriously, there are laws on the books that are justified because making something yourself means you didn’t buy from some big out of state entity.
§922(g) can only exist because the firearm in question might have crossed state lines sometime in the past. You might have purchased it in your state, you might never have left your state, your gun might never have left your state, your gun might even have been manufactured in your state, but that gun might have been sold across state lines.
I expect to see someone file a case on these grounds in the near future. In this way, Thomas is very good at predicting the future.