ACLU Scores Major Supreme Court Victory in Landmark 9-0 Decision

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1:55Michael Popok:Fire up a juicy ribeye, grab creamy potato salad and savory flatbreads from the prepared foods department and round it all out with 365 brand condiments, chips and dips at everyday low prices. Whole Foods Market, make your summer sizzle. Welcome to a special edition of Legal AF. Last week, the United States Supreme Court in a rare nine to zero decision ruled that if you use marijuana and you happen to have a gun, you have gun 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.

2:38Michael Popok: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 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. 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 Buskey, the director of the ACLU's Criminal Law Reform Project.

3:25Michael Popok: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, in the district court in Texas, up through the appeal. And they were the ones, the top 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 to the briefing, which is common from the government, right?

4:15They 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 odds with their approach to the Second Amendment in a number of other contexts and really was strange in terms of how expansive they tried to state their rule, asserting that Mr. Amani could be prosecuted under the statute.

4:40Michael Popok: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, 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 firearm possession, whatever that means, I think that's part of your vagueness argument, equals a crime.

5:32Michael Popok: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 not be a crime and should be consistent with his exercise of Second Amendment rights. It's a great question And I want to do two things. One is make clear what Mr. Hermani 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 and his family had been investigated for alleged terrorist activities.

6:23Mr. Amani 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 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 root.

7:27Michael Popok:And then when we read it by Gorsuch, there was a lot of discussion about the drinking habits 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 were doing in terms of regulation. If we can't find a historical antecedent, we're not going to find a modern regulation that doesn't, that complies with the Second Amendment. Of course, that's been challenged in the past by justices like Amy Coney Barrett, who was like, you know, there's limits to this historical antecedent thing.

8:18Michael Popok:What are we going to do about nuclear weapons. But putting that aside for a minute, that's the hand you were dealt, right? And 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 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, is to find a historical analog.

9:02And 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. Sounds like a lot.

9:38Michael Popok:Sounds like a lot, Brendan. It has like a tank of alcohol in it. Sounds like an awful lot. But, you know, to your point and to your question, you know, 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. They, oh, OK, well, and they found it. And then, OK, we're not going to allow a person who's out on a restraining order for domestic violence have a gun.

10:28Michael Popok: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 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 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.

11:26These 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 Justice Gorsuch basically said the government's case falls apart right there because you're talking about two 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.

12:24Was he ever in possession of a gun when he was using? Was he ever using the gun in a dangerous manner? These are all things that the court pointed out as real failings of a government's attempt at making this connection between those two analogs.

12:38Michael Popok:Yeah, and I'm sure there's a sigh of relief in our audience. I'm sure there's people that both smoke marijuana and are also law-abiding Second Amendment gun owners and probably were not aware that this case, especially in the Trump era, was still out there, let alone that we'd get 9-0, you know, of the judges, including the more moderate and liberal ones, joining in here. I guess this was not the case, for instance, for Ketanji Brown-Jackson or Sotomayor to write a dissent or even a concurrence to talk about and question again the historical antecedents or use or even the Second Amendment as expanded by prior rulings.

13:21Michael Popok:And I think that's a compliment to your legal work, your team's legal work, and your client, 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. 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, 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.

14:00And 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 lab test in terms of 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.

14:29Michael Popok:Yeah, we talked about it also because, you know, the Hunter Biden case was so well covered, let's say, during the Biden administration. You know, I'm not putting the two together, but, you know, it was a guy who had 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. And 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.

15:16And this is a really important point. And it's part of why in our brief, the Supreme Court, our first argument was actually about vagueness. And vagueness is a very simple idea that 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 and it can put these two things together.

15:57Now they have the authority for a criminal prosecution, and you wouldn't have had much in the way of knowing that what you did ran afoul of the federal statute.

16:06Michael Popok:Yeah, I like your vague, 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. And it was really weird for the solicitor general or the government to double down on everybody's a town drunk, right? And they can't own guns. When we read it, I hadn't read the briefing in full, but I'd read the opinion in full. And when I saw Gorsuch's kind of recitation, which you and I talked a little bit before we got on the air, you know, we joked about it over on Legal AF as Gorsuch's version of Drunken History, you know, that was just that show on Broadway where people take shots as they're doing history.

16:56Michael Popok:or we joked it was, you know, our forefathers were drunks and so can you. We wondered where that came from. But now it was really in large part taken from your briefing, ACLU and your other colleagues' 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-timey 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?

17:44And in the government's case, to try to give it the best gloss that I can, was essentially, 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 marijuana do have a regular habit of using some kind of intoxicating substance. I think what the Supreme Court establishes in this case is, you know, 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 debt.

18:27You 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.

18:36Michael Popok:Talk about, because our audience will find it interesting. How did your team or those 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, I mean, is it databases and and you find old conviction records and and indictments? Like, how do you do that? it's 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 you probably will note in almani the court reaffirms that and says you know we are basing this decision on the government's analog and then so the government's initial job is to say here are the analogs that we're coming with And it can choose.

19:26It 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 were 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. We were all basically diving in and trying to find all the treatises, all the sort of contemporary treatments of this thing to note this really important question of, all right, well, the government's proposing habitual drunkard laws.

20:12And 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. 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.

20:54Now 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.

21:08Michael Popok:And I don't think it would have changed if your client had not been indicted and prosecuted for a crime. but rather they had passed a law under the, you know, 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.

21:53I think that's right. You know, and in some respects, Justice Gorsuch's opinion relies 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.

22:16Michael Popok:Right. What was the analog for that as well? Well, this is a fascinating discussion, Brandon. And 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. Like, what is going on with this crazy case? And then you start peeling back, you peel back the onion and you're like, what is happening here? And then I saw ACLU 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. Talk a little bit about, 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.

23:00Sure. 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 eye toward trying to 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, a more rational way of achieving public safety and going after actual harm.

23:39Michael Popok: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. 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. Me too. Michael Popok here. you're on Legal AF YouTube channel. Take a moment, hit the free subscribe button for our pro-democracy channel.

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