Yesterday,
the
federal
government
defended
the
constitutionality
of
a
statute
—
18
U.S.C.
§
922(g)(3)
—
barring
“unlawful
users”
of
controlled
substances
from
possessing
firearms
by
citing
local
early
American
laws
restricting
the
rights
of
“habitual
drunkards.”
You
might
ask
if
laws
aimed
at
“drunkards”
necessarily
justify
laws
against
mere
users,
whether
such
a
distinction
provides
any
predictable
enforcement
brightline,
or,
better
yet,
why
we
should
even
care
about
cherry-picked
18th
century
town
ordinances.
Justice
Neil
Gorsuch,
by
contrast,
reached
directly
for
the
Originalism
hard
stuff
to
point
out
that…
the
Founders
went
HARD.
“‘Habitual
drunkard,’
the
American
Temperance
Society
back
in
the
day
said
eight
shots
of
whiskey
a
day
only
made
you
an
‘occasional
drunkard,’”
Gorsuch
explained.
“We
have
to
remember
the
founding
era,
if
you
want
to
invoke
the
founding
era,
to
be
a
‘habitual
drunkard,’
you
had
to
do
double
that,
okay?”
The
Constitutional
Convention
was
basically
a
frat
party,
okay?
You
can’t
hammer
out
the
details
of
a
new
nation
without
being
absolutely
hammered!
The
gallery
watching
United
States
v.
Hemani
—
the
case
of
a
Texas
man
who
uses
marijuana
every
other
day
while
keeping
an
otherwise
legally
purchased
handgun
in
his
home
—
giggled
at
Gorsuch’s
remarks,
but
the
justice
barreled
forward
with
his
humorless
brand
of
originalism:
John
Adams
took
a
tankard
of
hard
cider
with
his
breakfast
every
day.
James
Madison
reportedly
drank
a
pint
of
whiskey
every
day.
Thomas
Jefferson
said
he
wasn’t
much
a
user
of
alcohol,
he
only
had
three
or
four
glasses
of
wine
a
night,
okay?
Are
they
all
habitual
drunkards
who
would
be
properly
disarmed
for
life
under
your
theory?
All
that
and
they
built
a
new
nation
conceived
in
liberty?
Talk
about
putting
the
fun
in
functional
alcoholism.
And
they
weren’t
even
the
hardest
of
the
hardcore
Founders:
USA!
USA!
USA!
Justice
Barrett
questioned
whether
someone
who
takes
Ambien
or
Xanax
without
a
prescription
becomes
“dangerous”
under
this
framework,
noting
that
it’s
the
lawfulness
of
the
use,
not
the
drug
itself,
that
triggers
the
statute.
Justice
Kagan
went
on
a
tangent
about
Ayahuasca
—
prompting
Barrett
to
ask
if
it
was
a
real
drug.
(It
is.)
Justice
Thomas
asked
about
anabolic
steroids.
Which
are
all
very
valid
questions
about
the
troubling
vagueness
of
this
statute
that
probably
should
be
struck
down.
None
of
which
require
asking
if
Ali
Hemani
could
keep
up
with
John
Adams
at
bottomless
cider
brunch.
But
this
is
the
intellectual
dead
end
wrought
by
the
Court’s
2022
Bruen
framework.
Requiring
the
country’s
gun
regulations
to
match
the
“Nation’s
historical
tradition,”
based
on
quasi-historical
vibes
might
produce
an
occasional
insight,
but
it
also
traps
the
Constitution
in
the
sort
of
sophistic
“how
much
pot
would
you
have
to
smoke
to
lose
a
drinking
contest
with
James
Madison?”
banter
better
suited
to
an
actual
barstool
conversation.
This
dogmatic
adherence
to
historical
analogy
as
the
only
acceptable
framework
for
constitutional
analysis
spirals
into
absurdity.
When
early
American
legislatures
restricted
the
rights
of
habitual
drunkards,
they
weren’t
setting
a
blood
alcohol
threshold
for
future
generations
to
reverse-engineer.
They
were
articulating
the
principle
that
the
government
can
act
to
protect
public
safety
when
substance
use
renders
someone
incapable
of
exercising
responsible
judgment.
It
translates
perfectly
well
to
the
modern
era
without
asking
if
the
kids
these
days
are
too
soft
to
hang
at
a
John
Hancock
rager.
Comparative
tolerance
studies
across
centuries
shouldn’t
be
the
basis
for
interpreting
fundamental
rights.
Bruen
created
the
mess.
Rahimi
—
the
domestic
abuser
case
—
was
the
first
attempt
to
clean
it
up
without
admitting
it
was
a
mess.
Hemani
is
the
next
installment.
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
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