The One Guns Case in Which the Supreme Court Actually Got Its Awkward New Standard Right

For several years, the Supreme Court’s Second Amendment jurisprudence has revolved around the deceptively simple idea that modern gun laws must be consistent with the nation’s historical tradition of firearm regulation. In practice, however, that command has often generated more heat than light. Courts and litigants have spent years searching for historical analogs, debating how close is close enough and struggling to determine when a modern regulation meaningfully resembles something from the founding era.

In United States v. Hemani, handed down earlier this month, the court offered one of its clearest answers yet. The case involved a federal law that makes it a crime for an “unlawful user” of a controlled substance to possess a firearm. Ali Hemani admitted that he used marijuana several times a week and kept a gun in his home. The government did not allege that he was intoxicated while possessing the firearm, that he was addicted to marijuana, that he had ever threatened anyone, or that his gun ownership had resulted in any danger. His regular marijuana use alone was enough, the government argued, to place him outside the Second Amendment’s protection.

Writing for the majority, Justice Neil Gorsuch rejected that argument. But the significance of the decision extends well beyond marijuana use. Hemani is really a case about the discipline that constitutional analogical reasoning requires. The government attempted to justify the statute by invoking historical laws directed at so-called “habitual drunkards.” Yet, as the court explained, those laws regulated a very different class of people for very different reasons and through very different mechanisms.

The historical “habitual drunkard” was not simply someone who drank regularly. Early American law generally reserved that label for individuals whose drinking rendered them incapable of managing their affairs, deprived them of ordinary reasoning faculties, or left them unable to care for themselves and their families. The government’s interpretation of the law in question in Hemani, by contrast, sweeps in anyone who regularly uses any controlled substance in any amount without regard to whether that person is impaired, dangerous, incapacitated, or incapable of exercising responsible judgment. The distance between those categories is not merely one of degree but of a difference in kind.

The majority opinion is particularly notable for refusing to accept broad generalities as sufficient historical evidence. Stripped to its essentials, the government’s analogy amounted to an observation that both groups use intoxicants. But if that level of abstraction were enough, historical analysis would become an exercise in label matching rather than constitutional reasoning, where every modern law could find a historical cousin if the categories were drawn broadly enough. Analogies would become almost impossible to police, and nearly any modern restriction could be justified by identifying some vaguely similar historical concern. Hemani instead insists that courts examine not merely whether two laws share a surface characteristic but whether they target the same conduct, pursue the same objectives, and operate in roughly the same way.

That insight reaches beyond the Second Amendment. Every analogy works at a sufficiently high level of abstraction. The question is whether it continues to work once the details are restored. Hemani’s answer is that constitutional rights cannot turn on analogies that survive only because the categories have been defined so broadly that the distinctions disappear.

That insistence reflects the strongest aspect of the majority opinion. Critics of Bruen have long worried that historical-analog tests invite judges to manipulate history until they find support for whatever result they prefer. Hemani pushes in the opposite direction. It treats historical analogies not as rhetorical shortcuts but as evidentiary claims that must withstand scrutiny. If the government wishes to invoke history, it must do more than point to something that vaguely resembles the modern law and instead must demonstrate a genuine historical tradition supporting the restriction at issue.

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In that respect, Hemani may prove to be the most clarifying post-Bruen decision yet. Critics have often argued that history-and-tradition tests permit judges to cherry-pick the past until they find support for a preferred outcome. Hemani responds, whether intentionally or not, by making analogical reasoning more demanding rather than less. The opinion insists that courts do more than identify a historical cousin to a modern law by examining whether the analogy survives scrutiny once its details are unpacked.

Perhaps the most robust evidence of the majority’s reasoning is that it convinced some of the justices most skeptical of Bruen itself. Justice Elena Kagan declined to join the majority opinion, but neither did she dissent. Instead, she joined Justice Samuel Alito’s concurrence in the judgment, which agreed that the government’s historical analogies failed. Although Alito framed the problem less as a failure of historical fit than as a failure of tailoring—the statute swept far more broadly than the danger the government claimed to address—the underlying concern was strikingly similar. A constitutional right could not be stripped away merely because Congress attached a label to a broad category of people. Whether one speaks in the language of historical analogies or the more familiar means-end inquiry that preceded Bruen, the same question emerges: Has the government shown a sufficiently close connection between the people it seeks to disarm and the danger it seeks to prevent?

That convergence may be one of the most revealing aspects of Hemani. Justice Ketanji Brown Jackson used her concurrence to criticize Bruen and suggest that the court should eventually return to a more traditional means-end approach. Yet she too agreed that the government had failed to justify this law. The majority, the Alito-Kagan concurrence, and the Jackson concurrence disagreed sharply about methodology. But all arrived at essentially the same conclusion: The government had not done enough to demonstrate that regular users of controlled substances are the sorts of people whom history permits it to categorically disarm.

The majority opinion’s narrowness is equally important. The court does not hold that legislatures are powerless to regulate firearms and drug use. It expressly leaves open laws directed at those with substance addiction, individuals who are presently intoxicated, or categories of users shown to present special dangers. Nor does it question the government’s ability to prove dangerousness on an individualized basis. What the court rejects is a categorical rule that automatically strips a constitutional right from millions based solely on regular use of a controlled substance.

Reasonable people can disagree about whether mixing guns and drugs is wise. But under the framework the court adopted in Bruen and reaffirmed in Rahimi, the question is whether history supports the restriction. Hemani’s answer is that history does not support this one.

Whatever one thinks of Bruen, Hemani demonstrates that historical analysis imposes meaningful constraints only if courts insist on genuine analogical rigor. If constitutional rights can be restricted whenever the government identifies a vaguely analogous historical practice, then history becomes a source of judicial discretion rather than a constraint upon it. Hemani reminds courts that analogies are not self-executing and must be tested, not merely invoked.

The decision may ultimately be remembered for something larger than its holding. Lawyers and judges will continue to reason by analogy; constitutional law would be impossible without it. But Hemani serves as a reminder that analogies are easiest to make from a distance. Up close, the differences matter.

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