Legal AF by MeidasTouch - ACLU Scores Major Supreme Court Victory in Landmark 9-0 Decision

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Starting point is 00:01:23 Rule that if you use marijuana and you happen to have a gun, you have gone ownership and it's locked away in a secure place and all of that you have violated criminal law in fact it's well within your second amendment rights and that was written by justice gorsuch an interesting combination of justices getting together to say okay if that's our version of the second amendment as it currently stands this person cannot be uh indicted for or convicted of a crime because that's inconsistent with Second Amendment rights. And the case was brought by a number of public interest groups, one of them in particular, the American Civil Liberties Union.

Starting point is 00:02:08 And we've already done sort of a back and forth on unprecedented here on Legal AF about the case. But this is from a completely different civil rights, constitutional rights defense perspective. So I wanted to bring on Brandon Busky, the director of the ACLU's criminal law reform project. Hi, Brandon. Brandon, talk about the case. You got the briefing in, was the Trump administration in favor of this or against? In other words, did they want your client to be indicted and convicted of a crime? Very much so. This was a federal prosecution. The federal government defended this case, defended this prosecution in the lower court than the district court in Texas. up through the appeal. And they were the ones of administration were the ones who actually sought review from the Supreme Court. So they've been trying to sustain this prosecution all the while, including up through the briefing, and which was as common from the government, right? They often seek to defend statutes. But one of the features of this case that was so interesting is that their defense of this statute was very much at,

Starting point is 00:03:27 odds with their approach to the Second Amendment in a number of other context and really was strange in terms of how expansive they tried to state their rule, asserting that Mr. Hermione could be prosecuted under the statute. Yeah, really weird. I mean, the prosecution was begun in the prior administration, but it's continued, right, in 2023, right? And then it gets picked up by Trump, who, you know, listen. Trump administration, big supporters of the NRA and everything about the Second Amendment,

Starting point is 00:04:02 except when it came to your particular clients. It was already strange coming in to the case that they didn't drop this prosecution. So you've got a statute in particular that Mr. Hamani was prosecuted under 18 U.S.C. 922, G3, which says that a user of a controlled substance combined with a false. firearm possession, whatever that means. I think that's part of your vagueness argument equals a crime. Talk about Mr. Hermani and what he was, quote, unquote, caught doing, and why, in your view, and now the Supreme Court's view, that should be, that should not be a crime and should be consistent with his exercise of Second Amendment rights.

Starting point is 00:04:50 It's a great question. And I want to do two things. One is made clear of what Mr. Hermione was was charged with in this case, and then also what the government tried to add in in presenting this case to the U.S. Supreme Court. So Mr. Hermani was only charged with being a regular user of marijuana. The government served a warrant on his family home. He had been, he and his family had been investigated for alleged terrorist activities. Mr. Omani was home. at the time, he was very cooperative with the investigators and during the course of their interactions, admitted to using marijuana about once every other day. And he had a weapon in the home. He also admitted to that. It was safely secured. And he surrendered the weapon on that day, was not arrested

Starting point is 00:05:50 that day. In fact, six months passed in this case. And when they, did come back six months later, it was not on anything related to terrorism or anything more serious. It was on his admission that he was an unlawful user of marijuana and the fact that he had a weapon. That was the entirety of the government's prosecution, but that didn't stop them in their petition to the Supreme Court from pointing out all of the supposed allegations for which he was never arrested in trying to make his case seem more sensational than what it really was at its at his root. And then when we read it by Gorsuch, there was a lot of discussion about the drinking habits

Starting point is 00:06:36 and marijuana use of, you know, our predecessors, right, during the 1800s. That comes from what Clarence Thomas has been requiring the court to use ever since his major decisions about Second Amendment and personal handgun use, particularly that, you know, we got to go back to see what our people in the 1800s we're doing in terms of regulation. If we can't find a historical antecedent, we're not going to find a modern regulation that complies with the Second Amendment. Of course, that's been challenged in the past by justices like Amy Coney-Barrard, it was like, you know, there's limits to this historical antecedent thing. what are we going to do about nuclear weapons? But putting that aside for a minute, that's the hand,

Starting point is 00:07:26 right? That's the hand you were dealt, right? And you're, this is the Second Amendment as it's been framed by this makeup of the Supreme Court. This is the test that they require for it. And that's what you're there to try to defend your client on, right? That's absolutely correct. As you, as you alluded to the Supreme Court has set up this history-based test. It's a test based on history and tradition, and the government's obligation, if it is seeking to regulate firearms that are covered by the Second Amendment,

Starting point is 00:08:01 is to find a historical analog. And that means going back and figuring out some kind of regulation from the founding era that is consistent with how we're trying to regulate the firearm today. And so that yields a very interesting mode of constitutional analysis where in Justice Gorsuch's opinion, he's recounting the drinking habits of, you know, John Adams, who apparently drank a tankard of hard apple cider with, I had to look up what a tankard was. It's apparently about a pint and a half. It sounds like a lot, Brandon. It's a lot.

Starting point is 00:08:42 It has like a tank of alcohol, and it sounds like an awful lot. But, you know, to your point and to your question, you know, that that's really the heart of the analysis here. It is can the government point to something in the past around the founding that is enough like what they're trying to do now to allow their regulation in the present to pass muster under the Second Amendment? And we saw the Supreme Court and John Roberts sort of do all sorts of contortions when they wanted to find a limitation like about domestic violence.

Starting point is 00:09:21 They, oh, okay, well, and they found it. And then, okay, we're not going to allow a person who's out on a restraining order for domestic violence, have a gun. Here, you know, what was the argument that the government was raising as to the historical antecedent to allow not only regulation, but criminal prosecution of somebody for a serious crime for combining a substance with a gun? It's an important question, and really where the government's case fell apart, was the analog that the government chose was the treatment of habitual drunkards at the

Starting point is 00:10:04 founding. And every opinion or every justice signed on to the notion that this analogy just did not work. And it didn't work for the reason that. that Justice Gorsuch recounted, which is that a habitual drunkard at the founding was not someone who was just merely using an intoxicant on a regular basis, on a social basis, right? These were individuals who drank so heavily and so often that they simply couldn't control themselves. They were rendered, incapacitated, incompetent in most cases, and, you know, Justice Gorsuch basically said the government's case falls apart right there because, you know, you're talking about two

Starting point is 00:10:50 entirely different classes of people. And even at the founding, they were very familiar with the harms of heavy drinking. And even people who were heavy drinkers, like some of our most famous founding fathers, would not have been considered habitual drunkards at that time. And so the notion that someone who admits to using marijuana every other day and owning a weapon, is somehow like a habitual drunkard at the founding is simply laughable, especially when the government hasn't said anything about how much he was using. Was he ever in possession of a gun when he was using? Was he ever using the gun in a dangerous man?

Starting point is 00:11:31 These are all things that the court pointed out as real failings of a government's attempt in making this connection between those two analogs. Yeah, and I'm sure there's a sigh of relief in our audience. I'm sure there's people that both sort of. smoke marijuana and are also law-abiding Second Amendment gun owners. And probably we're not aware that this case, especially in the Trump era, was still out there, let alone that we'd get 9-0 of the judges, including the more moderate and liberal ones, joining in here.

Starting point is 00:12:06 I guess this was not the case, for instance, for Katanji Brown Jackson or Sotomayor, to write a dissent or even a concurrence to talk in question again. the historical antecedents or use or even the Second Amendment as expanded by prior rulings. And I think that's a test. That's a complement to your legal work, your team's legal work and that of your client, and who your client's position, that even there, the justices on the more moderate liberal side were like, yeah, this isn't the case for us to take on the Second Amendment again. Absolutely, absolutely.

Starting point is 00:12:41 And the point you made at the top of the question, I think is an important one, because even listeners who are in a state, you know, most states have legalized marijuana use in some form, right? And even if your use of marijuana was legal under state law, you could have been subject to prosecution under this federal statute. And so I think that's a big part of why we did get this confluence of conservative and liberal justices because, one, it fits very well with how the Supreme Court has laid out the test under Bruin for, gun rights. And then two, it just fails the lap test in terms of, you know, what is a coherent way of limiting a constitutional right such that someone might face 15 years in prison on a felony conviction if the government prevails. Yeah, we talked about it also because, you know, the Hunter Biden case was so, was so well, well covered, let's say, during the Biden administration.

Starting point is 00:13:41 You know, I'm not putting the two together, but, you know, it was a guy who had a lot. his own drug problem and then tossed the gun away after a very short, very short ownership period and still got indicted and convicted and sentenced and would have served time if not for his father being the president of the United States in that one. So this comes up. I mean, this is not like, oh, that's a one-off, you know, governments have been known to go after people when they combine drugs and Second Amendment gun ownership. And this is a really important point. And it's part of why in our brief the Supreme Court, our first argument was actually about

Starting point is 00:14:27 vagueness. And vagueness is a very simple idea that you have to have, you have to write a criminal statute that provides enough notice to people to understand what is prohibited. And if you don't do that, then the law can be subject. to discriminatory enforcement by the government. And in some ways, opportunistic enforcement by the government, where there's not really a public safety concern, but the government decides that it wants to come after you

Starting point is 00:14:56 and it can put these two things together. Now they have the authority for criminal prosecution, and you wouldn't have had much in the way of knowing that what you did ran afoul of the federal statute. Yeah, I like Jervaig this argument very much. You had to do the historical, antecedent argument because that is the law at the United States Supreme Court. And as you said, it ended up being a battle over who has the best antecedents. I mean, you know, it was really weird

Starting point is 00:15:26 for the Solicitor General or the government to double down on everybody's a town drunk. And, right? And they can't own guns. When we read it, not know, I hadn't read the briefing in full, but I'd read the opinion in full. When I saw Gorsuch's kind of recitation, you and I talked a little bit before we got on the air, we joked about it over on Legal A-F as Gorsuch's version of drunken history, you know, which is that show on Broadway where people take shots as they're doing history,

Starting point is 00:15:58 or we joked it was, you know, our forefathers were drunks and so can you. We wondered where that came up, but now it was really in large part taken from your briefs, briefing, ACLU and your other colleague briefing, laying out the historical precedent of the antecedents that needed to be observed and saying when you look there, this would never have been a crime during those old tiny times. And it can't be a crime now. I mean, that's what it boils down to, right? For sure. And in all these cases under the Supreme Court's rubric for historical analysis, there's this issue. of how high of a level of generality can you really state the principle? And the government's case, to try to give it the best gloss that I can, was essentially,

Starting point is 00:16:52 look, these historical laws aimed at people who used intoxicants on a regular basis, right? And in a way, that's correct, you know, habitual drunkards and people who use, you know, want to do have a regular habit of using some kind of intoxicating substance. I think what the Supreme Court establishes in this case is, especially when the problem that we're facing is an old kind of problem. You can't get away with such a loose mode of analysis. You have to have a much tighter analog in order to carry the day. You can't just say, well, these two people do something that's kind of similar and so we can sustain the prosecution. It's got to be much more precise. than that. Talk about, because our audience will find it interesting, how did your team or those

Starting point is 00:17:42 around your team, how do you do that historical research? Like, how do you go back and find, like, the, how do you find the antecedent? I mean, is it databases and, and you find old, you know, conviction records and, and indictments? Like, how do you do that? It's a fascinating question. And in part, it's scaffolded by the government's approach. So under Bruin, the government has the burden. And then you probably will note in Almaty, the court reaffirms that and says, we are basing this decision on the government's analog.

Starting point is 00:18:22 And then so the government's initial job is to say, here are the analogs that we're coming with. And it can choose, it shows here, habitual drunkards. And so from there, our sort of historical task is narrow but deep. I would say. And so it's a lot of, you know, we're working with the Clear Clinic at CUNY Law, a city of university of New York law. They had a lot of great interns looking for many hours to dig up the history here. Our own interns and students were helping out the drafters. And we were all basically diving in and trying to find, you know, all the treatises, all the sort of

Starting point is 00:19:04 contemporary treatments of this thing to note, you know, this really important question of, all right, well, the government's proposing habitual drunkard laws and what were those laws really about? And then when you look at it, that's how you find out that, you know, what they're pointing to really wasn't about dangerous people, right? It was about people who couldn't take care of their affairs. And so we're at risk of ruining their estate and their family or people who simply couldn't sustain work, right? These are the vagrancy laws, right? And some of those people were habitual drunkards.

Starting point is 00:19:42 As Clarence Thomas pointed out in oral argument, some of them were jugglers. Some of them were peddlers, right? And so when the government comes back and says, you know, we think that all of these laws are about dangerousness, now we have the history behind us to say, no, these laws were about something very different. And so if the idea is that you're trying to keep guns away from a uniquely dangerous population, this is just not the right analog. And I don't think it would have changed if your client had not been indicted and prosecuted for a crime,

Starting point is 00:20:17 but rather they had passed a law that they were defending that made it impossible for your client to have gun ownership because of his use, you know, if he checked out a box, do I use marijuana? on a semi-regular basis. Yes. I'm sorry, we have a law on the books that stops you from having that gun. I don't think it, I mean, the crime certainly ratchets it up in doing your research. But I think you would have, I think you would have prevailed even if it had just been a civil law banning the ownership of a gun or use of a gun by somebody who checked the box on marijuana use.

Starting point is 00:20:55 I think that's right. You know, and in some respects, Justice Gorsuch's opinion, realized very heavily on the felony prohibition here. But I also think the analog, as you point out, would fail even if it was a civil regulatory provision. Because again, you know, many of those were civil as well. And they were addressed to just different kinds of social problems. Right. What was the analog for that as well? Well, this is a fascinating discussion, Brandon. I'm so glad you came on about it because it had so many different layers to it. When you first see the top line, 9-0, you know, in favor of gun use, Trump administration was against it.

Starting point is 00:21:34 Like, what is going on with this crazy case? And then you start peeling back the onion, you peel back the onion, and you're like, what is happening here? And then I saw ECLU involved. I was like, oh, this is perfect. I want to bring a leader of the ACLU on to brief our audience about everything that happened there. Thanks for, talk a little bit about before you, before we head out here, Talk a little bit about what you do as the director, what your criminal law reform project is all about. Sure. Ordinarily, we are focused primarily on mass incarceration and expanding rights against police violence, but then overreach by governments with respect to things like bail, probation, prosecutorial misconduct, you know, all focused on constitutional liberties, constitutional protections, but really with an eyes toward trying to say. stop prosecutions like what happened to Mr. Hermione, where there's just government overreach for a purpose that really is not connected to public safety and where we can point to a better way,

Starting point is 00:22:36 a more rational way of achieving public safety and going after actual harm. I assume this administration has given you and your project a lot of work. We've been pretty busy these days. So have we. Brandon Buskey, the director of the criminal law reform project at our friends, the American Civil Liberties Union. talking about their big win, 9-0, how rare at the United States Supreme Court about Second Amendment rights. I'd love to have you back on as you continue with cases that you think our audience needs to be briefed about. Oh, I'd love to be back. Thank you so much for having me.

Starting point is 00:23:11 Me too. Michael Popak here. You're on Legal AF YouTube channel. Take a moment. Hit the free subscribe button for our pro-democracy channel. Can't get your fill of Legal AF. Me neither. That's why we formed the Legal AF substack. time we mentioned something in a hot take, whether it's a court filing or a oral argument. Come over to the substack. You'll find the court filing and the oral argument there, including a daily roundup that I do call, wait for it, morning a. F. What else? All the other contributors from legal layout are there as well. We got some new reporting. We got interviews. We got ad-free versions of the podcast and hot takes where legal A-F on substack. Come over now to free subscribe.

Legal AF by MeidasTouch - ACLU Scores Major Supreme Court Victory in Landmark 9-0 Decision

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