United States v. Hemani

United States versus Himani, Ms. Harris.

“- Mr. Chief Justice, and may it please the court.”

The second amendment does not prohibit the government

from temporarily disarming habitual marijuana users while they persist in using frequently. That tailored restriction easily fits within the historical tradition of disarming categories of people

who present a special danger of misuse. That is no license for Congress to deem anyone dangerous. The government must show historical analog that is relevantly similar and why and how it restricts the second amendment rights.

Here, that's habitual drunkard laws. Under historical vacancy and civil commitment laws, habitual drunkards were imprisoned or confined without specific dangerousness findings, based on judgments that habitual drunkards

as a class threatened public safety.

Shorty laws require them to postpone or be jailed.

Like 922G3, those restrictions reflect public safety concerns about the dangers of frequently using intoxicants. And 922G3 is less restrictive.

“Habitual illegal drug users can regain their arms”

through their own voluntary conduct by not using illegal drugs so often. Opposing 922G3 would not open the door to disarming weekend fear drinkers. Unlike alcohol, illegal drugs are illegal.

They're illegal because Congress deemed their use dangerous at any level and their dangers extend beyond their mind altering effects to the risks of the illegal drug trade. Unlike alcohol, Congress and the executive ranch have made specific determinations about the dangers

of illegal drugs. And unlike alcohol, robust post-ratification history supports disarming habitual illegal drug users, not just frequently intoxicated users. Respondents, contrary approach,

that no habitual drug users can be disarmed, when invalidate 922G3 and parallel state laws, even for habitual heroin, ketamine users, and would replace the Brugwan bikini framework with a discredited law description and a approach.

I welcome the court's questions. Ms. Harris, the drunkards weren't the only one included in these sorts of statutes. What was the public safety concerned about those who were using subtle crafts, juggling,

unlawful games of plays, fainting themselves have knowledge of physiognomy, palmistry, or pretending that they could tell fortunes? - I've glad you asked about the vagrancy laws. The vagrancy laws did cover those categories of people.

They covered multiple concerns. They covered both people who's disorderly conduct presented a risk of public safety, and that's usually the mentally ill and habitual drunkards.

And people who are essentially transients who are considered a threat. I don't think it's a problem that that type of law covered multiple purposes or categories, or the court would have had to also

throughout the surety laws in Rihimi, which of course covered a much broader swath of conduct, including horror mongers, nightwalkers, all sorts of other categories of people.

“I think the fact that there's an overlapping set”

of categories of vagrancy laws, civil commitment laws, and surety laws that are all singling out-- - So I'd recommend to argue that it's okay to impose a ban on homeless people, or not drug addicts, but just merely homeless.

- For this vagabonds?

- For second amendment purposes, no, we don't think so.

And here's the difference-- - And why so? - Yes, I think the difference two things. One is the point with respect to specific application here and two is a methodological point about Rihimi, I think.

So here's the reasons. Being homeless is not itself a crime. Being homeless is, at least there's things additional to it for due process purposes. It is not unlike a legal drug usage,

something associated with the public safety concerns historically. There is not a robust, pooth gratification. History the same way, these are the kind of constraint you look at on top of that. - The danger of habitual alcohol users

was not merely the fact that they were using and intoxicating substance. The way the habitual was defined was that the state of intoxication didn't permit you to have a regular life. All the definitions around habitual alcoholics

centered around not merely taking the drug, but the potential effect it had on you because you couldn't control it or would continue to use it. You were in response acting responsibly towards your family. You were sleeping in the streets.

You were doing other things that show that it incapacitated you. Now, it's hard for me to see how given that drugs affect there are different kinds of drugs with different kinds of effects, different kinds of duration.

using the sleeping drug but is, we have a marijuana user that you say regular is defined by two or three or every other day, but how about the marijuana user who uses it only one day a week and not in their home where the gun is, there was a definition and a situation

with habitual alcoholic users that's different than this. - So two points, one with respect to the historical definition

“of habitual drunkards and two with respect to why I think”

that 922G3 is more tailored and easier to justify than modern day regulations. habitual drunkards as a category were defined that certainly for civil commitment and vacancy purposes that there were no individualized dangerousness findings

that it was a sort of judgment made often by magistrates or just as the piece as to whether someone's conduct was frequent and putting them into status of a drunkard. So habitual did mean frequent or regular. The drunkard piece is what does the work

I think in a lot of your questions with respect to the level of intoxication.

Second, why I think it's not a problem

that there is translation of that level of intoxication for habitual drunkards to illegal drug users here. I think 922G3 is a lot more tailored, but there's no like founding error breathalyzer to tell you exactly how intoxicating things are.

For 922G3, what's happening is you have, first of all, a restriction that is tailored and temporary and less restrictive because it is tailored to how often you're using it within your control. - Oh, miss second.

- Well on that, I'm starting her up, but I just want to, before we lose the track of what Justice Sotomayor is talking about, one can ask whether the habitual drunkard statutes are sufficiently, how and why is officially analogous.

One can also ask though, more basically, whether this defendant would qualify as a habitual user and I want to explore that before we lose track of it. A habitual drunkard, the American Temperance Society back in the day said eight shots of whiskey a day,

only made you an occasional drunkard. (audience laughs) We have to remember the founding error if you wanna invoke the founding era.

“To be a habitual drunkard, you had to double that, okay?”

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 of an 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? - No, and again, I think this is not that-- - Okay, if they're not, then what do we know about Mr. Hermione?

We know he uses marijuana a few times about every other day. That's all we have in the record, right? - That's all we have in the record. - Okay, so we don't even know the quantity of how much he uses every other day.

What if he took one gummy bear with a medical prescription in Colorado? Well, you've made not even need a medical prescription. You don't even need that anymore. But let's say you had one to help him sleep every other day.

Disarm him for life? - Well, we're not-- no, it's not disarm for life.

And here's what's going--

- Potentially. - Well, that'd be enough under your theory. One gummy bear every other night with a medical prescription.

“- So I think you'd have a behavioral potential”

or a hate problem, but I will accept a hypothetical. So let me just deal with-- - I think the answer is yes, under the government's theory. - Yes, under our theory, but let me give you an explanation of two parts of this that are important.

One, you ask about how do you tell who's an unlawful user? How is it more defined than a habitual drunkard? I think it's a lot clearer. Is it-- I mean, the government has not been able to define what a user is?

I mean, it is said at various points that it's someone who's used any illegal drug in the past year, right? It's said ATF now wants to say a pattern. And you are you for a ritual, which, of course, conflates the second half of the statute, which

talks about an addict, which is different than a user. An addict is an habitual user. It's defined as. So you're kind of conflating the two parts of the statute there.

So tell me how it's so clear. - Okay, a couple of things to help you with this. One, I'm going to set aside the four-feature issue, but I would like to return to that later, just deal with the substance.

With respect to who is an unlawful user, the court of appeals are in our uniform in adapting the CMVU as us, which is a habitual user in context. - The IMF disagreements. - No, they absolutely do not, and so we patterned.

- Let me be very clear about the distinction here. There is a distinction between what is the statutory definition

of an unlawful user, and everyone has always agreed,

including ATF, that that means habitual or frequent. And on the other hand, how do you prove that? What type of evidence is sufficient to show beyond a reasonable doubt

The background checks for ATF, purposes, that you, in fact, do that. - Okay, so that's the difference. - So it's back down to, you would qualify as an habitual user, one gummy bear every other night.

- Absolutely, and here's why. They're check on that sort of situation as two-fold.

“One is you have to know that you are using an unlawful drug.”

So if you're using your gummy, and you don't know that it has teaching it or there's something else, you could have a nice, behaved defense. But setting that aside in terms of other guardrails, a legal drugs are different from habitual drunkards

in an important way.

First of all, there is robust post-ratification history

that I think shows that there is a tight connection between someone who is actually-- - The court will stand to illegality. What do we do with the fact that marijuana is sort of illegal and sort of isn't?

And that the federal government itself is conflicted on this. It doesn't enforce a quite the same way. It does with respect to drug laws, with respect to other drugs. - So two points. One is not just illegality, but with respect to illegality,

I don't think the government is of two minds. The government is considering rescheduling marijuana as scheduled three to facilitate medical potential medical applications. But the government is not saying that it is not illegal anymore simply because states are not following federal law.

“I think the fact that the controlled substances act is involved.”

It brings this not just in terms of the category of illegality, but into the realm of how do you test the fit? How do you test if Congress is like prohibiting chewing gum or caffeine on the one hand legal substances versus substances that actually do have intoxicating mind-authoring effects?

- But it's one of the difficulties that I think is-- and this kind of takes just this course of just question one step farther. In this case, I know we're talking about marijuana, but obviously the statute applies more broadly

to other things that are scheduled. Some of which can be taken lawfully or unlawfully.

I take it, you're saying marijuana can never be lawful

because it's on schedule one. And even if it's on schedule three, the government's saying it wouldn't be lawful. Just as sort of my request to you about someone who takes ambient to sleep. So let's assume that someone takes their spouses ambient prescription.

The spouse takes it too lawfully with the prescription. But then you take it unlawfully because you break into your spouse's ambient jar. So I take it that the one would fall under G3 and the other who had the prescription would not. - Right? - That's correct because for one, it would be illegal.

And then there's sort of inflary questions about the use by one of habitual drugs. - Okay, but I guess my question is, I agree with you. And I think this is what Rahimi says that legislatures can regulate to keep guns out of the hands of dangerous people.

But when I look at this statute and when I look at what the qualifications are for being listed on one of these schedules, they're all about public safety. You know, they're about reducing addiction. And the example that I just gave you about the ambient is important to me because it's not the drug itself in this circumstance.

That's causing the dangerousness. It couldn't be because if my husband has a prescription and I don't, what is it about ambient itself that would make one of us more likely to be dangerous? It's not, it's the lawfulness. And so to hear what the marijuana, I just don't see anything in the scheme

that actually reflects Congress's judgment that this makes someone more dangerous. - Okay, let me help on a couple ways. One is, I think that there's two parts of this. One is the fact that the controlled substance of the scheduling scheme

“does consider that long-term effects of use, I think is important.”

I think that is important because it does reflect a determination that, especially if you are regularly and routinely using these illegal drugs, there are serious side effects.

I would point you to the third circuit's Harris decision when you look.

If you think that there should be a more tailored assessment of who is dangerous, their questions are replicating the very questions that are being answered through the controlled substances act regime and second of all. - The third circuit's not Congress. And nothing about the scheduling process suggests

that the attorney general or his delegate has to make a decision that the psychological effects, I agree with you, everyone would say that any drug can have long-term psychological effects. But there's no indication that that's what was motivating the attorney general or Congress.

This just wasn't about, the gun control I just wasn't about dangerousness. It wasn't something that the legislature thought it needed to consider then. - Respectfully, I think these are on all fours with respect to considering dangerousness. In the gun control act, the fact that it's habitual users or addicts, and I think under the theories that are being floated,

you would have a real problem justifying even disarmament of addicts under G3. Because I think that it's reflecting a determination that frequent and habitual use of illegal substances, not only above and beyond the determinations that are made to schedule them, but potential involvements of the legal drug trade or real problem.

And just one other point on this, I think this is a smaller gap in between the move that's being made that supported by post ratification history, making the same judgment and state after state,

We're, again, in Rahimi, there was no founding era history of disarming domestic abusers at all.

It was treated as a much lesser offense. It was punished if at all by shirty laws. And the court relied on the going armed laws, as saying that's an even more different danger. The danger there is brandishing your weapon publicly to terrorize the people.

Versus and Rahimi, it can be sort of conduct in your home. So I think if you're looking at the fit between the danger involved and here, I think that provides it. And just one thing on how would you otherwise figure out who is dangerous in this situation? I really don't know how this would work on an individualized basis.

The third circuit's approach seems to rely on the kind of pharmacological judgments that are already being made within the controlled substances act. But how are you going to find a reliable way of figuring out this person had a particular type of marijuana or other drug from an illegal source? At what concentration, who knows?

At what point in time, who knows?

“If there is some sense that you have to have a dangerousness determination for each type of person”

to track it, I think that's right. Is it kind of drug? Is it the government's position that if I unlawfully use ambient or I unlawfully use annex, then I become dangerous?

I will just point out we have never prosecuted any--

Well, the question is would it violate the second amendment? And what is the government's evidence that using marijuana a couple times a week makes someone dangerous? Okay, just with respect to marijuana, I'll take that first. But I'll just say it like my backup is I think schedule one, two, and for marijuana,

we have not made a policy choice with respect to what's happening. But I think we could very easily justify those threshold categories. Whatever you want to do with further down on the schedule. The reason is for the dangerousness, all of the things that go into the scheduling decision include potential for abuse, the effects of potential addiction, all sorts of things that go

into the same kind of calculus that went into the presumptive disarmament of the mentally ill, or other things that affect your mental capacity and affect your ability to use firearm safely. And so if the court is saying, well, mind-altering drugs aren't a sufficient proxy for dangerousness, or Congress cannot make a determination, including when it's backed by the executive branch scheduling process, and judicial review, that these types of illegal drugs not only have

particular mind-altering effects on the body that can create a serious hazard for firearms use as the court's presence. So you're kind of talking about dangerousness being per se because it's unlawful.

“So I guess that does raise the question, is it just schedule one, is it schedule two?”

How far down does that go? Does it go down to ambient? My frontline position will be we take all of it because of the determinations that go into it, but my backup is if you have a problem with that, you can look with respect to the gradations of the scheduling scheme, and if you wanted to calibrate it further.

So some judgment would still have to be calibrated on dangerousness that way in your view. You could certainly do it that way, and I think it's-- That would back up position, your primary position is, if it's scheduling anyway, so long as you use a couple of times a week, you're subject to disarmament. That is our position because of the combined effects of, again, the judgments that are being made

that are permissible, backed by post-ratification, history, and everything else, and also the dangers of the week.

All of us see the factors that you mentioned in my mind go come down to the second part of the

statute, which is addicted to drugs, meaning you say there's a danger that you will become addicted or that you're going to act out in your addiction.

“So why do you need to control this with respect to someone who uses it twice a week?”

Because of your definition, the mere use, and that's actually not twice a week, it's once a week regularly. Because the addiction prong and the unlawful user prongs are overlapping, but distinct, and cover two different situations. I understand, and I don't know why the second is not more comparable to the historical twin, which had to do with the question of whether you were a vagabond, whether you didn't have

any place to sleep ever, whether you were doing something so persistently that the danger would arise. A couple of points. One is the habitual drunkard laws themselves don't gauge like addict versus just drunk all the time, and I don't think this fit has to do so either. If you're frequently using heroin regardless of whether you're addicted to it, it is a fair judgment to make that you are exceptionally dangerous.

So what kind of means you see with PCP, same with other things that have those effects? So I guess my problem is it might be a fair judgment, but conceptually, that is precisely what the brewing test prohibits, that we don't credit the judgments of the modern legislature about who is dangerous and who needs to be disarmed as a result. The entire point I thought of the brewing test was to say that the only thing the modern

dangerous and who gets to be disarmed. So I think your arguments sort of follows a part

under the brewing test to be extent that you were saying the reason why these are historical analogs is because the historical legislature was making the same kind of determination, that they were making a determination that these people habitual drunkards were dangerous, and you see the modern legislature, the Congress, is making that same kind of dangerous in this determination, and so therefore we have a match. And what I'm saying is that can't

work because the modern legislature under our brewing test only gets to do the policy judgments of the historical ones. So we have to see that the historical legislature going back to Justice

Gorsuch's point was making a determination that someone who only drinks or it takes an

intoxicant once every other day and is not doing so while he's using a firearm can be disarmed. And if we don't see that, then the fact that today's Congress thinks that that person is dangerous

“is irrelevant under the brewing test. >> Respectfully, I think that would mean that you were”

overruling Rahimi because Rahimi made the various like an even bigger jump. If you thought that only people who were dangerous, the founding could be restricted now, I think you have a real problem with the fact that domestic abusers at the founding were only penalized. No, it's not the penalty necessarily. It's the policy judgment about who was dangerous. And I thought there was evidence that the founding that there was a concern about domestic abuse to some degree, maybe people weren't

being disarmed as a result of it, right? >> The problem is that it was a determination that they

weren't dangerous enough to be imprisoned or subject to disarmament. >> Right, but that's not what I'm saying. If you do it at that level here, then you don't even have that original point. In other words, you don't have the determination that people who are doing what today's Congress says is dangerous, were dangerous to people at the founding. This is just a score such as point, right? The dangerous people at the founding were well beyond just one item, one intoxicant every other day. So without that,

I don't know how you can even begin the conversation of how we punish those people. Is there a

“match with regard to what can be done about them? You have to have a policy judgment at the founding”

that matches the policy judgment today under the brewing test. >> Right, we agree with the brewing test, but the policy judgment is that the founding people who are using intoxicants in a dangerous way in a habitual fashion can be subject to various penalties from confinement and imprisonment. And 922G3 is similar to that judgment. It is saying habitual illegal drug use even if it's not to the exact same point as alcohol, which is legal, which is not subject to the same determinations,

is enough on our force. And I think the other plus factor-- >> Sorry, what do we do about the fact that wrapped into that is your view of illegality doing a lot of work when the government itself controls that determination? I don't know that you can say that this matches because the government today has determined that this particular substance fits in the schedule or is illegal because the government controls that. >> The government controls the subject to judicial review and much more

strict findings than we're present at the founding for habitual drunkards who didn't have to be deemed dangerous. There weren't any considerations of what are the public safety concerns with respect to each other? >> The central argument, both accepts what was happening at the founding

“and distances itself. I think that's a problem. You've said many times this is not like alcohol.”

This is different from alcohol. This is illegal. And I say, okay, we're the founding error analogs that do what is happening here. >> Right, and the illegal drug problem did not emerge at the founding. And so I think the fact here that post ratification history were not trying to get to the original principle from at the original principle of disarmament comes from the problem of intoxicants and firearms and restrictions on people. But as soon as a illegal drug problem emerged,

there is an unbroken history of treating them as similar to habitual drunkards, the two laws kind of merge in terms of how the function habitual drunkards and illegal users of drugs not just addicts are subject to disarmament. >> But the original laws that were enacted, including the uniform wall, really spoke to addicts. >> With respect, there's a lot of laws that did not, just were not just confined to addicts. At least, I think at least it doesn't have them.

I don't know, it seems like most were addicts, not illegal users, but while waiting to my jury item round. >> Thank you, council. Just as Thomas. >> You are seem to rely quite a bit

history, illegality, and the way the controlled substances act works to make determinations,

plus the temporary nature of the restrictions. >> What about other unlawful or

“illegal drugs, such as anabolic steroids? >> Anabolic steroids, I believe, are there scheduled”

three or scheduled four? So I would give similar answers to Justice Barrett with respect to my front line and my backup. I think the front line is there are the same kind of judgments that are being made. My backup is if there are concerns with respect to how you go down the schedule, the government only cares really about prosecuting schedule one and scheduled two, and that's the tightest

level of determinations. You have to find a serious danger of abuse, and any sort of alternative

approach is going to throw out the heroine, the fentanyl, the ketamine, and those kinds of things. >> So other than the danger of abuse, because there have to be some sort of implicit danger in the drug, the effects of the drug itself. >> That is usually part of the scheduling determination, so it includes the addictiveness, but also you can look even at the recent notice of proposed rulemaking with respect to marijuana, mentioning that DEA in this process normally comes

forward with public safety, evidence with respect to other risks. And so that is part of the

“calculus, and I think is part is pretty tight in it. >> Thank you. Justice Alito?”

>> Most of the most commonly used illegal drugs either had not been invented at the time of

the adoption of the second amendment, or the adoption of the 14th amendment. Heroine was invented

in 1874, cocaine 1855, methane fedamine 1893, fentanyl 1959, marijuana existed, but my understanding, yeah, hemp was grown for industrial purposes. My understanding is that it was not consumed to any degree by people in the United States until at least the beginning of the 20th century. Is that consistent with your understanding of the situation? >> That is correct. >> So we don't know what the founders, what those who adopted the first amendment, or I'm sorry,

the second amendment, or the 14th amendment, thought about illegal drug use per se. >> Correct. >> There's a lot of talk about alcohol. Do you think that the regulation of alcohol is exactly the same as the regulation of illegal drugs? It doesn't, it doesn't alcohol, it doesn't have a different place in the history and culture of the West, aren't there a lot of people who consume alcohol in moderation and have done so for centuries for purposes primarily for purposes other

“than the effect that it has on one's brain? >> Absolutely, and I think that's why the post-redification”

history is so difficult for respondent here with respect to the difference between illegal drugs and the history of alcohol use in moderation. >> Now as to Justice Barrett's question about ambient, which I think is quite important. Do you think that as a practical matter, it is feasible for there to be as applied challenges to the use of every drug on the schedule? >> No, and I think Chief Judge Colotin's recent dissent in Levina illustrates a lot of these problems

in terms of how do you know exactly how much someone's taking if it's in a legal drug what's in it? How do you know exactly what the concentration is? What else are they mixing with other things? At what point do you might have a tipping point situation where someone goes into a greater risk of addiction or having additional mind-altering effects? These are really hard judgments and those are the kind of judgments that go into scheduling determinations. >> 922G sets out a whole list of categories of

people who presumably thought created a special danger with regard to the possession of drugs. Do you see a ground on which one might say an individualized determination is required for G3, but not for any of the other categories in G? >> I think that would be difficult, and if you did so, you'd be taking down G2, which is particularly hard to fathom, that's fugitive. So I don't know how someone would say, how dangerous is this particular fugitive in the moment, like did they just

get scared, what's going on, or other parts of G4, and then there's a lot of issues with respect to G1, but I think we could all agree. It would be passing strange to suggest that it's constitutionally

minute purpose. >> Thank you. Just a story or? >> One question. The other side has conceded

that you can have laws that prohibit people while they're in, while they've taken illegal drugs

“from possessing a fire heart. That's correct. There's no argument about that. >> I believe”

that's correct. >> And I think they've even gone so far to say, you can prohibit a drug user from possessing the gun while using the drugs. >> They seem to suggest that. >> All right. So really the question is whether someone who possesses the gun and drinks socially at a bar, drinks socially somewhere else, takes a stick of marijuana at a party, whether you can prosecute that person. >> Especially not quite. I don't think it's a question with respect to casual bar drinkers,

which we think are on different footing. >> Well, here, but let's take the person who has marijuana

at a party. >> If the person is doing so habitually and repeatedly, they are -- >> App parties. >> Even though the gun is somewhere else. >> That is correct. They cannot do it. >> All right. That's just one and no it's your. Just a gig? >> Terris, I think I'd like to know more about how controlled substances are identified. I mean, the controlled substances act is obviously not written with 922, G3 in mind. It's like the separate statute, which presumably has its own

purposes and methods and so forth. And I mean, one of the things that might be considered in determining whether something is a controlled drug is a person dangerous when that person is on the drug.

But I guess I would be surprised if that was remotely the primary thing. So could you just tell me

about like the whole range of things that are considered in deciding whether something ends up as a controlled substance? >> Yes, and it's in 21 U.S.C. 811C is sort of a list of criteria,

“and while they don't specifically list interestness, I'll get to why I think they're a good proxy.”

It lists things such as the potential for abuse in addiction, the state of the science, the pharmacological properties, the history and pattern of abuse, its scope and significance, public health risks whether the drug is a precursor for other illegal drugs. And in the course of the determinations, as I mentioned, these are not just subject to judicial review for through the APA process and also subject to rescheduling challenges. But in the course of the process, it's obviously

a dialogue among agencies with respect to that does consider such things as DEA's views, which again tends to consider connections to public safety and crime. So again, the intuition that what they're focused on is what are the effects, what are sort of the mind altering effects of this particular drug, and how dangerous is it when you're on it is a fairly tight fit for such other categories, including the mentally ill, which this court has said is presumptively legal.

“I think it will be hard to say, no, you can't, you know, it's not enough to say,”

there's this kind of risk of abuse, this kind of public safety concern in general and say, Congress isn't doing a good enough job because it's not specifically considering exactly how dangerous is this particular drug when mixed with firearms. The point is it's dangerous at any level when it's being used in an illegal way. Okay, so a different question, in thinking about these analogs and what counts and what doesn't, do you recognize a difference between statutes

that go to public safety, like we're really afraid that this person is going to commit crimes against other people, and statutes that go to what we might call public order. So there's a person who keeps on falling down dead drunk in the town square, and we want to remove that person from our environment, that sort of thing. You know, it seems to me that those are two different kinds of concerns which might end up in the same statute or might not, and how do we

think about that in terms of the analogs that you're pointing us to? I think that's a valid concern. I think it's one that Blackstone's recognized with respect to surety laws, and I think the court should be attentive to it, but the answer here is I think the overlapping nature of the historical restrictions and what they, what they sound in. So the civil commitment laws, I think are the easiest example I'd give you, they're focused on habitual drunkards. I think it's very clear to say that

the reason is as Blackstone's sort of would have put it, the fear that people are going to be out and about sort of terrorizing the public, or doing other unsafe things, similar to the mentally ill. And the vacancy laws, I will obviously spot you that there is a wider range of concerns within them, but I think you can piece apart the different purposes, both with respect to some of the the the the the manner of handling them and just historically how those laws were understood

history can help you distinguish between is this public order, we don't like this kind of person being around for aesthetic reasons or whatever it is, or public safety, we think there's a real danger for having this kind of person on the streets of liberty for without sort of with without

“with without restrictions. And I think the post ratification history here and again the fact”

that habitual drunkards laws translate very closely into the illegal drug user laws as soon as that problem emerges in the early or 20th century late 19th century, it's another way of telling you, this is how you do the calculus. And I don't think it can be throw the all the laws out the window or you have a problem with surety laws and recommend because they covered all sorts of stuff. Thank you.

>> That's course it's just a couple of quick questions more, sorry.

>> No. >> 922 G3 has two prongs as we discussed. One is your unlawful user and second is your

addict and you prosecute a Mr. Hamadi only under the first prong, unlawful user. You're asking us now to understand that prong to mean an abitual user. >> Correct. >> What's left of the second prong, you render its perfluous given that an addict is defined by the statute as an abitual user.

>> So two pieces of this. One is not superfluous, an addict is the one who has an uncontrollable urge to use this substance regardless of whether they have access to it a particular moment in time. You can be an addict and not be an unlawful user because, for instance, you're going to treat it. >> I thought the CSA definition of an addict was any individual who literally uses an narcotic drug so as to endanger the public morals health, blah, blah, blah, blah.

“>> Yes. So the second part of this is I think respondent is being very careful to say,”

we're not actually no one thinks that that is the actual operative definition. I don't think you could because it says narcotics. It is obviously not the definition that Congress is using. It's limited to narcotics for the purpose in the controlled substances act of feeling that treat my facilities. So the ordinary meaning that's been adopted by the government

with dictionary definitions and all the courts of appeals is not that. It does cover both concepts. It covers unlawful user, is someone judged by the objective criteria of their frequency of use, an addict someone who has an uncontrollable urge. They can overlap, but they are also indicate there are situations as perhaps here where-- >> I've got it. I've got it. Thank you.

And then secondly, your backup argument as well may be schedule 1 and 2. We really need those, but not schedule 3 and rest of the schedules. If that's the case, what do we do with this case given that yes, it's presently a schedule 1 drug, but the government itself is considering rescheduling it to a schedule 3 drug. Why bring this case? Why is this the test case?

I mean, one is that, first of all, at the time when the offense was committed,

marijuana is in was a schedule 1 drug. Two is the government has not made final decisions with respect to what to do with marijuana,

“but I think something that is clear from the MP or I'm at least, again,”

bracketing what happens in doing stages is that even schedule 3 drugs, which include things like ketamine, the differences they have some medically accepted uses, not that they're not dangerous, not that they don't present to you. >> I understand that's the primary argument as they all count. That's your backup argument is we'll stop at schedule 2, I don't know why, but okay, but the drug that is involved in this case might wind up being a schedule 3 drug tomorrow.

>> Yes, I understand that and I think what I'm saying is not so much, there's like a hardened fast like special magical second amendment rule that says schedule 2 a no further. It's just if you wanted to sort of set a, if you wanted to rule out like schedule 5 or schedule 4 for ambient, the cut off with respect to dangerousness, like does diminish and I think the court could say, you could you could you could bracket potentially as applied challenges if you wanted to do that.

I'm just saying this is a fallback that's not the government's main position, but I think when you see the way the scheduling works and the statutory criteria. >> I understand that it's just an odd case to chose and to test the principle when the government itself is potentially reschedulating. It is a drug that it wouldn't think would qualify under at least its backup argument. >> I think we would not consider that it wouldn't qualify, I think the government has to make a decision

with respect to the risk potential of marijuana and other externalities assuming again, this is a process that has not yet been voted, which I can't convince anybody. >> Thank you. >> Disgusting. >> In response to Justice Alito, I think you said that drugs are distinct from alcohol for

second amendment purposes, although there are some similarities, is that accurate?

>> Yes, and I would say that, yes, I can elaborate. >> Please elaborate. >> Okay, thank you. So drugs are similar in to alcohol in this sense that there is a similar history in tradition with respect to identifying people who by use of their and by use of the intoxicants on a habitual basis, present on the how and why spectrum, special danger of misuse.

One, we've talked about a lot, it's illegality, the externalities and additional features of being involved in the illegal drug trade increase the risks, and there's also an additional notice requirement that makes this unlike, you know, you're doing caffeine or sugar.

“You know that you are already using something that's unlawful to possess, and I think that helps”

clarify the boundaries of the prohibited conduct. Two is the post ratification history as world's apart, as the question with just as a legal illustrated. There is no post ratification history or a history of saying habitual drunkards, but also anyone who casually drinks on Fridays or sort of who drinks at parties can be disarmed. That is starkly different from the tradition with respect to illegal drug users.

Now, respondent has pointed out that some of them cover addicts, but I think they clear us ones that I would give you that definitely cover unlawful drug users, and hark to the time that the problem existed are states like Hawaii, Maryland, Maine, Minnesota, Missouri, Nevada, New York, Ohio, Tennessee, Utah, West Virginia. There's a bunch of them I could go on with respect to other ones. I think those are the clearest, and that shows that there is a

historical judgment that illegal drugs are different. Again, for kind of the reasons we talked about for the controlled substances act. There's a judgment that because of their dangerous because of abuse potential because of other effects, they're unsafe at any level, and it's really hard to figure out what point does that come? To agree that there's more of the state laws

“though target addiction than simple user. I'm not sure I would can see that I think it's a little”

hard to parse exactly what's all of them cover. I think a lot of them do cover addiction, but a lot of them also cover unlawful users, and I'm not sure that would be disbosive when if you're looking for a post-ratification consensus, you'd have to take the position that like all of these laws are pretty long-standing for people who are mere habitual users of illegal drugs are unconstitutional. The soon, even though I think you disagree, I know you disagree,

the soon for a second, that there is a history of drug addiction, drug addicts being disarmed,

but not so much for users, just assume that for a second. Then I go to how you define the terms in this case, and this is picking up on something Justice Gorsuch was just asking, but it seems how you define drug user merges with addicts in the sense that you've added the word habitual, and then when you turn to the definition of addicts and the control substance act, it does say someone who habitually uses any narcotic drug so as to endanger the public morals.

That's enough, and I don't know how a habitual user is distinct from a habitual user who endanger the public morals. So if that's true, the two definitions merge, that helps you on the history, if I'm right, in the hypothetical I pose to about the history being really targeted at addicts. A couple of responses. One is we resist the idea that the controlled substance is act definition, it self is ported over, the part of the controlled substance is act that is actually ported over,

is just the definition of a legal drug. That's because the definition only covers narcotics. That would be a real problem for us in defining who is an addict versus an unlocked user.

Second, with respect to how clear the definition, I mean, I would remind the court that case

comes to the court with the proposition universally accepted by the court of appeals, that someone who repeatedly uses marijuana multiple times a week is in the heartland of an unlawful user. And when you're trying to tease out who is an unlawful user versus addict, I agree with you. And why are they not in the heartland of an addict? So just parse that out for me. Because it is not clear whether Mr. Hamani could voluntarily cease the conduct.

Addict is defined by sort of an internal compulsion to use. An addict can include someone who isn't actively using right now, but has an uncontrollable compulsion to use whenever they get access to. So it's an addict misdefined in the control substances act then? It's defined correctly for the purposes of that act, but Congress did not port that definition over into 922G3 because, again, the only thing it ports over is the controlled substance.

And this is not sort of an unusual view. It's what the court of appeals have recognized based on the dictionary definitions that this is an overlapping category of people, but we're giving them distinct meaning and that this is something that constrains the government in prosecutions. And an unlawful user is judged by a high frequency of use. That's the objective test.

>> Let me on a different front men's rail. How does men's rail work here given we have? What do you have to prove that the defendant knew about habitual?

>> Here's what you have to do. One, you have to know that you're using an illegal drug.

“And I think that's an important constraint just right out of the gate. Two, you have to know”

that you're using how many times you're using it. You don't, in the government's view,

like, if I use marijuana four times a week, I have to know I use marijuana four times a week. So the conduct that would put me in the category of habitual, I must know.

“I think these are virtues of the approach here. The government doesn't normally like”

or hate a lot, but in this particular context, I think it helps impose meaningful limits. To the extent the court is concerned with how broadly unlawful user goes above and beyond the constraint squirts what appeals have identified, and this is something Chief Judge Colton also pointed out. The knowing requirement does work here that is important. >> Do you think the government can prohibit a habitual drug user from owning a car?

>> owning a car. I think that, I guess there would be various, there would be various challenges with respect to taking as an other types of property, and I think you would have a different,

probably not, but the question for a second amount of purposes is a different one, which is

are you someone who presents a special danger of misuse in that tradition? So for taking purposes or whatever else the constraints are in that-- >> Which is a danger to have drug users obviously driving cars. >> And I don't think you would find a history and tradition of staying. I mean, I think you could say there's a tradition of confinement and other restrictions, but with respect to the second amendment, the question is, do you present a special danger of misuse

for firearms because of a historical category? Just like for felons, you probably wouldn't say you can't have a car, but as the court has recognized from hell or onwards, it's presumptively lawful to identify felons in the mentally ill as categories that may present a special danger of misuse. >> Thank you. Just for it. >> So Mr. Harris, when you are going through with Justice Kagan, the considerations and the controlled substance event for winding up on one of the schedules,

there are a panoply, right? And you can wind up for one reason and maybe not for another is proclivity to violence expressly one of the things that's taken into account and putting a drug on the schedule. >> It is not in the statutory criteria. The way I do think it often works out is the DEA may provide evidence with respect to the drug and connection with crimes, but obviously it's not one of the fixed statutory criteria. Again, I don't think that's a problem

for the reasons we've discussed, which is you also don't have findings with respect to the mentally ill or other categories. >> I mean, I understand that. I think where I'm stuck, I agree with you that you don't need to have just alcohol, because that's all there, was it the finding and that would be trapped in anger. Amber, let's say that I think that the principle is if you have reason to know that someone would pose a risk of violence is dangerous

that the legislature can disarm. I guess when I look at these drugs, however, I mean, Robotussin, Ambien, Tylenol with Coding, testosterone, Adderol, I mean, none of those drugs strike me, I'm not a pharmacologist, but none of those drugs strike me as drugs for which it is obvious that a risk of violence would ensue, is it your position that all of the drugs that I just mentioned would pose a risk of violence and dangerous behavior? >> So what I'm saying is those drugs in schedule

4 and schedule 5? >> I will actually, Adderol is in schedule 2. >> Okay, just with, yes, I'm sorry, I'm less familiar with Adderol on the scheduling, but with respect to these categories of drugs,

“whichever schedule they're on, you have to be using them habitually and not for their prescribed”

purpose. So yes, our position is if you are in that category, you are doing something that is- >> So it's the lawfulness, because what if you're a college student and you take your roommates, riddle in twice a week, because you think it's going to help you take exams? >> Yeah, and I think we're going to get to a place where you're into ketamine and other drugs, ketamine being scheduled 3,

it's a lesser version of PCB. >> So the problem is that if you take Adderol, then you slide into

other drugs? >> I think it is a problem of who decides what the adequate proxy for dangerousness is, and if you wanted to go on- >> But you just said, and I think it's clear when you look at the controlled substances that dangerous is not necessarily the primary reason why- or even a reason why all of these drugs land on the list. And so I guess my concern is, let's say that I think Congress could make a determination maybe, I don't know, I mean there was just an article in the

New York Times about the dangers of marijuana, and maybe that's true, maybe THC concentrations are higher nowadays, and that does have bad effects on bad mind-altering effects, and maybe it gives rise to violence. I just don't see that my concern, and maybe you can dispel it, my concern is I just don't see that that determination was made here. >> I guess I would point you to again, if you wanted to comfort with her, to marijuana in particular, the whole history of rescheduling

the determinations made with respect to that substance, et cetera, and I think the other thing to consider is- >> And where does it say that it leads to violence? >> There are-

Well, first of all, I guess I'd point to the court's cases, which many of which have our cases

in which there is a strong connection between marijuana use and violence, but I would just take

“us a back and say, if that is the key, if you have to have some determination that say the”

mentally ill, or particular drugs, present a risk of dangerousness as opposed to the common sense

you are frequently using these mind-altering substances, you are in the class of people who present

“a special danger of misuse, just so long as you're habitually doing it. I think that's more”

of a guard for y'all. There's no such thing for habitual drunkards. No one was going around saying habitual drunkards are as a class unsafe because the justice the piece isn't saying, this particular habitual drunkard is too unsafe to do it. >> Actually, I'm glad you asked that this is my last question. This goes back to your colloquial with Justice Toledo, and you were talking about how as applied challenges would be unworkable. What about as applied challenges, you know, let's

put aside the possibility of as applied challenges being required as to each individual defendant, you know, and as applied challenge to Mr. Homani in particular. What about an as applied challenge just to that particular drug? Why can't Mr. Homani simply say, you don't have to take into account all of my personal circumstances, but, you know, government, I would like to put you to your proof

“about whether marijuana has an established link to violence? >> Right, and I think if you look at”

the third circuit's opinion in Harris, the kind of questions that you would do is to answer that question,

unless you are not willing to accept a connection, the intuitive and historically grounded connection between intoxicating substances and dangers they present, and the idea that they are in fact dangerous and might lead to violence. I think you have a real problem with other person with robots and shouldn't be able to who's caught with robots and and uses it for coughing and sleeping, you know, three nights a week. That person can't make an as applied challenge.

I think the government is willing to entertain the idea as we would with sugar or caffeine, that if there is not, if there is not sort of a factual record, but I think here, again, you can either carve out scaddle five or do some other-- >> You're not rejecting out of hand the possibility of as applied challenges to the particular drugs. You're just resisting that it would apply as to marijuana. >> I'm resisting the idea that it could be constitutionally required

for a second amendment purposes, because I think you would be fundamentally altering the

bikini framework in a problematic way by discounting the ways in which the modern in a lot of 1922 G3 is more tailored and only focusing on the idea that you need like some exact comparator as if you could go back in time and figure out exactly the mental effects of intoxication

“to feel it figure out how violent someone is. I think that's an impossibility. >> Does Jackson?”

>> So I guess I maybe I just don't understand how the tests work anymore. Maybe it's post for Hini. I'm not sure, but it seems like you're asking us to trust Congress's legislative judgment here that unlawful drug users pose a heightened risk of misuse, but that this test really doesn't provide us a way to check that in any meaningful sense. And I guess the benefit of the pre-browing kind of means in scrutiny is that you've got to the bottom of whether what Congress was actually

doing here was legitimate and whether the means that they had chosen the disarmament of this person was tailored, sufficiently tailored to that aim. And what's worrying me is that the current blue and test modified by Rahimi or whatnot is not allowing us to assess that and that's really the problem in this situation, that the concerns, the questions that you're being asked seem to all relate to people's concern, that even if we all agree that Congress can legislate to disarm people

who are dangerous as a general matter, that this person in this circumstance really is not dangerous and your test doesn't seem to get to allow us the way we're talking about it to assess that. Can you help me with how the means in scrutiny analysis is being folded into ruin? Sure, I don't think the means ends in analysis is or it should be folded into ruin, but then when we keep it from having this very situation where it just boils down to us

believing what the modern Congress says about whether or not someone is dangerous. We would also reject the trust us position. Okay. Okay, I think I would start with post-ratification history because history is the touchstone of the brewing inquiry and the court has repeatedly recognized that when you have a principle from the founding with respect to how to classify which kinds of people present a special danger of misuse, it's not a law-trapped in amber situation.

You don't have to accept the founding generations' judgments as to exactly who is or is not dangerous. But your principle is just the Congress that the founding era identified certain people as dangerous. Your principle has to be specific enough to allow us to adequately or accurately match it.

judgments and we do the kinds of policy analysis that we used to do,

“which is basically what I hear you saying back and forth with justice bear it, right?”

We're just looking at, like you say, there's a really good reason to do this. And Congress' judgments are grounded in important policy determinations. All that's true, but that's not what the brew and test is asking us to do. Who, respectfully, I'm not saying Congress is doing great work here. I'm saying the tests are in addition to post ratification history, which tells you the principle is a lot more specific than,

here's a dangerous category of people, you know, have at it. So what is the specific thing about habitual drunkards as a category,

obviously identified at the founding that is parallel to the every other day marijuana user here?

It is that when you habitually use intoxicating substances, you can present special dangers that weren't confinement or imprisonment or other restraints that are greater than what 922G3 is. Yes, you're just defining habitual user differently in those two situations. I mean, you've just defined a way of the problem. Yes, fine. When you habitually use, but the founding people said, when you habitually use your falling down drunk in the street,

“it's like, whatever justice courts have identified at the beginning, that's what it means”

to be a habitual user back then. And therefore, it presents a category of dangerousness. That's not what we have here. So you can't just redefine it and still say there's a match. So two problems with that. One is, again, I think if you think that there's not close enough fit between the principle identified and the judgment of post ratification history of many states that for a long time have treated unlawful illegal drug users as of a piece,

then you have a real problem with Rahimi itself. Because, well, that may be it. I mean, I guess I'm concerned that Bruin and Ratimi are going to be allowing for arbitrary identifications of analogs and producing inconsistent results. You were here in January with respect to the wolf or case when you argued that historical anti-poaching laws were different enough from what Hawaii was doing, that it's unconstitutional. Here, you're arguing that

historical laws that have nothing to do with guns, very little to do with unlawful users of intoxicants as, you know, was going on in the history are similar enough to cause this law to be unconstitutional. I don't understand how this works anymore in any meaningful way. Okay. Well, for it is a case about a handful of founding era, a punitive analogs that missed out on what we considered to be the relevant principle.

Yes, well, you considered what I'm asking you is how does that? How do we know what is the relevant principle? Okay. Here, yes, is there. I think there's a couple ways of figuring it out. One is with respect to how it's liquidated in post ratification history. I think that it is a far superior approach than what Justice Gorsuch aptly described in his Rahimi concurrence as a sort of free-for-all in which courts of appeals were imposing or having free-wheeled

“to impose their own policy preferences. So I think that is an important check too. We're not just”

saying trust us Congress, we're saying the process by which you test whether a legal drug is our illegal, our deemed dangerous in whatever it is, the range of things is something that provides a check for a specific fact funny that well exceeds the kinds of determinations that were made with respect to being a habitual drunkard at the framing. It seems like people have an idea of habitual drunkards as like a very defined class. That was not true. habitual drunkards

were within the judgment of a justice of a piece or magistrate with respect to some of their own personal experience. There's no judgment that like a habitual drunkard is specifically dangerous. The Ludwig decision shows that the minor in of cases are not even saying someone was incapable of handling their own affairs. So that is a helpful check. Thank you. Thank you, council. Ms. Murphy? Mr. Chief Justice and may it please the court.

The question in this case is a narrow one. Can the unlawful user prong of 922G-3B constitutionally

applied to Ali Hamani? The answer is no. In fact, it can't constitutionally be applied to anyone

because the statute fails to provide fair notice of what makes someone an unlawful user of a controlled substance in the peace strip of their second amendment rights. But even assuming the statute could be applied to Mr. Hamani consistent with due process, it could not be applied to him consistent with the second amendment. The government reads the unlawful user prong to cover anyone who has engaged in habitual use of a controlled substance. But the only historical

tradition it has offered is one of imposing restrictions on habitual drunkards. That entire line of argument rests on a category mistake because the laws to which the government points applied only to habitual drunkards, not to habitual drinkers. Indeed, the whole point of the doctrine was to distinguish those who consumed alcohol frequently. But mostly in moderation, from those who

even in whatever moments of sobriety they may have had. And that distinction was critical,

“as deemed anyone who regularly consumed alcohol a habitual drunkard would have given the government”

sweeping power to subject much of the populist to hard labor, guardianships, civil commitment and concursoration. Now to be sure, the habitual drunkard tradition may also support disarming people who are addicted to a controlled substance, which is in fact the dominant approach in the states today. And perhaps it could justify a categorical approach as to certain substance if the government is able to actually prove that a particular substance is in fact so addictive

and dangerous as to make anyone who regularly consumes a kin to a habitual drunkard of Europe. But it cannot support disarming someone based solely on the fact that he consumes a few

times a week something that Congress has designated a controlled substance. I welcome the court's

questions. The government takes the view that, or seems to suggest that your argument

“boils down to a facial challenge on the statute. We are making the argument that it is”

unconstitutional as applied to Mr. Humane. Some of the arguments that we make may mean that it is unconstitutional as applied to a lot of people or even perhaps most people. But we are not pointing to some deficiency in the statute that's not applicable to Mr. Humane in saying that that that's a reason to invalidate it. At the end of the day, we don't. My client just wants to see the decision below affirmed whether that's done on facial or as applied grounds is not a particular

importance to us. Well, I know your client just wants to prevail, which is understandable. But your argument it seems to me, I mean, why doesn't it apply to any drug, whether it's PCP, methane, fedamine, whatever. It seems that, again, it's said to the extent that you're overriding the judgment of Congress in the executive branch with respect to the listing of particular drugs. I don't know why that same approach doesn't apply to any drug. So we think the

same principle should govern with respect to any drug. But that doesn't mean that the statute is unconstitutional as to every drug. If you take the principle underlying his habitual drunkards, the concept that the statutes fact then require is somebody drinking to such excess that they can't care for themselves or their affairs, that they've lost self-control, that they're posing a public safety risk. If you apply that, there are going to be some substances

where it may be, that pretty much anybody who uses them. So we're going to assess those on a case by case basis and apparently on an individual by individual basis. Actually, we are happy for the government to have two options. It can present, it can do it on an individualized basis, which is

“exactly what the statute contemplates as you addicted to. I mean, you have to engage in an analysis”

of someone's actual use to figure out whether they're addicted to a controlled substance. But if the government wants to try to say a particular substance is so categorically addictive dangerous that you can't use it regularly. Okay. But it has to do that under the burden of proof that brewing assigns it, of proving that the category it has identified maps on to that category of habitual drunkards. It's not enough to just come in and do APA discretionary government gets

the benefit of the dowel review because that's eliminating the burden of proof that there's a misburdening government. Well, I was just going to say, I don't understand the determination in every case. But also for other examples, you know, the New Year's Eve example. You can't, you know, shoot a gun in New Year's Eve and all that. It doesn't indicate there's some categories of use that were prohibited at the, at the founding, whether it's habitual drunkards,

and in terms of the illegal use based on particular individuals or categories or geographic limitations like today. We don't allow people to bring guns in the courthouses, even if they

can say, look, I've never used it unsafely or, you know, similar types of restrictions.

And you say, well, now those are going to have to be litigated on a case-by-case basis, and every individual instance, is this, and that's going to be hashed out in court, is this drug at one that's particularly dangerous or particularly addictive. And it just seems to me that takes a really cavalier approach to the, that's a, that's a, that's a serri consideration of expertise and the judgments we leave the Congress and the executive

branch. So I want to be clear about two things. First, we are not saying, we're, we're not arguing that the second amendment doesn't allow for categorical prohibitions. That is not our position and we're not even arguing that Congress couldn't perhaps have categorical restrictions as to particular substances. Our core point is, if Congress wants to do that, then the government needs

supported by substantial evidence that gets past APA review with highly discretionary, will assume the government knows what it's talking about, that it has, in fact, identified the category, in a way that maps on to the historical tradition. It is, I don't really, I don't understand what you just said. 922 G sets out various categories of people who were prohibited from possessing a firearm. And I thought you began what you just, I thought you said to start out

that a categorical approach is permitted. Is that correct? So, or are you saying that as to everybody in all of those categories, there must be an individualized showing when that person

“is prosecuted? We accept that the government can take categorical approaches. I think you're going”

to have to look at each, any given prohibition and examine the history behind it to determine what categorical approach can be taken. But we are not here to suggest that the only time the government can ever restrict the extra size. So, as to at least some of these categories, there's no right

to an individualized determination under the second amendment. Is that what you're saying?

I mean, I think that, you know, you could have a discussion in a case involving certain provisions about the need for, as applied challenges, some way to allow somebody to show that, you know, yes, you might have the category right as a general matter, but I, um, somebody who happens to be outside it, but I think that that's something you can front once you've determined that the government got the category right, which is the threshold question, did they get the category right

as compared to the historical tradition that they are? So, I, I'm, I'm not, I don't completely understand, I understand that. Can, is it, can, must there be an individualized determination as to anybody who is prosecuted under any of the subsections of my 22G? Yes or no? No, that is not our position. To pose a mismorphy congress tomorrow, says, you know, we're afraid that this controlled substance exact is not really doing it for us in this area, so we're going to come up with a list of

particular drugs that we, we want to be able to take away people's guns. And the first on that list,

I'm going to say, I, I don't know a lot about this drug, I'm assuming you don't know a lot about this drug, so, um, what I'm going to tell you about this drug, let's just assume is the truth about this drug. Fair enough. Um, so it's the drug's ayahuasca, and, uh, it's a very, very, very intense hallucinogen, um, and the, uh, the, uh, episode lasts, uh, a very long time, um, but it's not, let's say, an addictive drug, you know, you can choose when to take it, but when you're in its, uh, uh, grip,

like you basically, the reality dissolves, all right, and I'm assuming that Congress has a good reason for saying when reality dissolves, you don't want guns around. So, uh, but that to me, when you give the description of the historical analog, to me, that's going to fail your test. Should it fail your test? Um, I'm not necessarily, I guess, I would say two things first. Obviously, we agree that you can be prohibited from carrying while you're taking that drug. Uh, but, but I don't think I don't

know that's not caring. It's like, you know, there you are in your house, you have a gun in your house as well. So, you're owning a gun, even though you use this drug, let's say, once every two weeks. Yeah, I think that it would be a little bit difficult to, to show that really using that drug every few weeks is going to be enough to render you akin to the concept that the historical drunkard laws were getting up, which is that your consumption rendered you, we're not saying that you had to be

intoxicated all the time, but your consumption impaired your ability to function even your moments of

“sobriety. That's what the courts are talking about. They're asking whether it doesn't have to be addiction,”

it can be addiction certainly, but it could also be your consuming so frequently that, you know, that's really all you do and during your childhood. Yeah, so it's definitely going to failure test. I, it may, it may not, I think, you know, you'd have to learn my facts. What's the last thing in how lasting the impact is, but if a person is, if, if what you're

essential thing is there's a substance that leaves a person impaired. Once every two weeks,

but the other 13 days of those two weeks, they are perfectly fine. I don't think it's consistent with the historical tradition, the government has invoked. Just as, I don't think that tradition would support incarcerating that person, subjecting them to guardianship or committing them to a drug treatment facility. Well, whether you're personally, I'm just going to say,

“you're, I mean, the hypothetical focused on a particular time period, but I think it could be used”

every, every week, not just every third week or every other day. And again, I think that's

And, and that kind of judgment gets made in court all over the country all the time in the hearings

“that are routinely held to decide whether somebody can be subject to things like guardianship or”

civil commitment because of their substance abuse. Well, but they're made under the determination set forth by Congress and the executive and statutes. You don't, you know, if they want to categorize this particular drug is something that's dangerous, that's not enough for you. Well, that's not enough for the types of civil commitment and guardianship laws the government's pointing to either. It is not enough to just walk into state court and say, this person sometimes

uses a controlled substance and then you say, okay, therefore, we will commit them to treatment

for substance abuse. There is a process that has been developed in courts that requires all sorts

of individualizing, increase into the nature of someone's use and whether it in fact renders them, a danger to themselves and others on a regular basis. There's a broad range of determinations like that where we leave the question of its addictive plot difficulties and the consequences of that to a determination by the legislature with the schedule. One schedule, three and all that. In each case, you don't go in and get to re-way the legislative determination.

But the point is to get to the types of restrictions the government is pointing to as this analogs. Being able to say your use of a substance has been so extreme that you can be

appointed a guardian. You can be committed for treatment. Alcohol was never illegal at those times.

So it's not enough that someone's made a determination about the substance. What you had to look at was how the use of that substance was impacting somebody's ability to function in their day-to-day life experience. >> Strange question, Ms. Murphy, but do you think

“Congress that really wants to get this ayahuasca drug really wants to disarm people who use it?”

Could they pass a statute that says something like this? You know, here are the findings. The findings are we live in a post-brune world. And it's been pointed out to us that the best analogs are these habitual drunkard statutes. And Congress says, so we think we've looked at all these statutes and we've looked at the modern-day evidence and ayahuasca fits our idea of what the habitual drunkard statutes were getting at. Now, as we just talked about, it doesn't fit your

idea. In other words, it's, I'm just going to stipulate that it doesn't meet your test. The Congress say it meets our test thanks and that's good enough. >> I think at that point, you've sort of abandoned the brune inquiry of saying it has to actually map onto historical tradition and you're in the world of simply saying Congress can make its own reasonable determinations about who isn't is not dangerous. Now, yeah, I appreciate there's some on this court who may think

that's the better approach, but I do do things once that's all you're asking. You have, you are no longer assessing the question vis-a-vis historical. >> I've signed on to that. >> I'm not. >> I understand. I don't understand what I mean. I do want to follow up on something

“that just is cave and ass. I think the government gave this away when it said that there was no”

determination by the legislature on the dangerousness of the drug with guns in terms of listing it on the schedules. So, it doesn't give away the whole game for that. >> I think it goes to show why this court would have to do or a court would have to do its own inquiry, because the barefoot. >> I bother, meaning if Congress, we can only uphold the law if there is something to defer to, but if no one has actually done the analysis whatsoever. >> Correct, and I think it is a

fair point, you know, I think it's a correct concession on the government's part that the controlled substance is act does not reflect a determination that every substance that is labeled a controlled substance is too dangerous for people to regularly do. >> Well, in fact, it doesn't give out. >> And we can't make that given for all the reasons that Justice Barrett pointed out all the different scheduling, you can't really say that every single drug on their Congress could have reasonably

rationally, whatever. >> Congress, I mean, the point of the scheduling is to say some of these substances, even though controlled substances, are capable of being used regularly in moderation without making somebody a walking public safety risk. So, if you are serious about ensuring that the modern law fits that historical understanding, this law doesn't even reflect Congress's determination that everything designated a controlled substance is inherently the kind of thing that cannot

be used responsibly or in moderation. >> And Miss Murphy, I thought your point, I got it a point was that even if it had, even if it did, deferring to Congress with respect to that kind of

the sense, the Bruin test to kind of take the Chief Justice's, what I think reasonable view,

of thinking about what Congress has said and assessing what Congress wants to do and evaluating whether it's doing it in a narrowly tailored way, if we're doing that, then what worked as the historical analog have to do? I thought we had to look at the historical analog to constrain Congress in its ability to disarm people today. >> That is exactly, I mean, that is our core submission in the government said multiple times today that they agreed that they have to actually

map on to a historical tradition. >> And so the question is, how does that mapping happen? At what level does that mapping happen? And I hear the government saying it happens just at the level

of the old cases we're looking at people and making judgments about when they were dangerous and should

be committed or whatever, and it can't be that broad, I think. >> We certainly don't think it can be that broad. I think it has to be attached to a principle, so the principle in Reheeming was not simply Congress decided certain people were dangerous. The court focused in particular on the fact that that part of 922G required an individualized determination of dangerousness.

“Now, we're not saying that's the only way you can map on historical tradition, but it was that,”

the court didn't stop at the high level of saying determination, you know, that there was just a legislative view of dangerousness. It looked at that individualized inquiry here, I think,

that you'd have to say, okay, you know, what was, what was the historical principle surrounding

dangerous substances intoxicating substances? And when you have a tradition that's all about ensuring that the regular user doesn't get swept up with the habitual drunkard, I don't think you can point to that tradition and say, this is our tradition that allows us to bring the regular user in along with the person whose abuse of use is actually impairing their ability to function in here. >> Right, it's about the tradition with respect to addiction.

Because I think you in the government agree, I want to find places of agreement here,

“I think you in the government agree that there is a tradition of prohibiting gun ownership”

possession by those who are addicted to drugs, correct? >> Yes, we agree that the historical, I mean, we agree that the historical tradition of habitual drunkards can support laws with respect to addiction, which is happy to talk about the state laws is really the dominant approach. >> Well, as my questions indicated, I think you have a strong point there on that being the dominant approach when it started up. Now, then on this statute, so taking what you just said and applying

it to this statute, this statute does cross-reference the controlled substance act, which then does define addict as a habitual user so as to endanger the public morals, leave it at that. And my question is, is that definition of addict good enough in your view to satisfy the tradition of prohibiting gun ownership possession by addicts, and if not, what is the delta? >> Yeah,

“I think that definition pretty well maps on to this historical tradition. It's a little bit of an unusual”

definition because it has these two prongs that refers to a habitual user as someone who is a habitual user either is essentially because they're addicted, or just is endangering public safety. But I actually think, well, that may be a bit of an odd way to think. >> It's just endangering the public morals. >> It does say I think something. If we were here in an addicted to case, there's some discussion to have about whether some of that language is a little bit broad and a

little bit problematic for maybe just a little bit. But I think what the definition is getting at is, if your use is so excessive, either because you're addicted or if it's a product of choice, either way, if your addiction is rendering you a threat to yourself and other your use is your habitual use is rendering you a threat to yourself. I think that maps on to historical. >> So you're good, let me just summarize. You're good with addiction being a tradition and with this definition of

addiction being good enough. >> The only minor caveat I will give you is, the government has in fact accused my client of being a drug addict. So I don't want it for clothes like literally any argument that might be made about the addicted to, but as a conceptual matter. >> We don't have a problem with the historical tradition supporting the use. I supporting laws that prohibit drug addicts from possessing firearms. >> The government didn't accept that. >> They said that that definition

doesn't control. >> I think that I said it out. >> It would be more focused. >> I think if I understood the government, I think their focus on the fact that the definition

We aren't suggesting that the definition has to be read like literally inhawk verbah into

“the 1922G3. I think you could say that the standard that the definition of addict is a”

complex is setting out for addiction, can apply as to controlled substances. And this is actually the way when the government does prosecute under addicted to several courts use this as the jury instruction to give content to what the continent is. >> We interrupted Justice Barrett and I want to make sure you get back to her. >> Justice Kevin, are you finished? >> Go ahead.

>> I was just going to give you a variation of Justice Kagan's hypothetical. I have never heard

of the drug. That's true. Is that real? Okay. Let's imagine that it's marijuana. So let's say that you win this case, and Congress comes back and says, you know, it conducts hearings, that here's all this evidence about the concentrations of THC and marijuana that's made today, documents that marijuana users who use it several times a week have a proclivity for violence, violence with firearms, and then passes the same statute with findings along the lines. I just

“sketched out. Can Congress do that consistently with the second amendment? >> So I think you'd”

have to look at that evidence itself and decide does it suffice to show that someone fits this pattern if they could show that? >> I have to look at the evidence to see if the person

sets up a category of Congress wants to say we're going to do it at a categorical level,

then I think you look and say did they get the category, right? >> Okay. I think that judgment. >> By thinking about the test that was applied historically, is it has the government demonstrated that anybody who uses at the degree of the, you know, that substance in that amount, in that frequency is actually a danger, not even just when they're using, but in their day-to-day life, are they unable to care for themselves and their affairs? >> Do I have any extra?

>> I mean, if the government wants to do it on a categorical basis, it is going to have to prove up its case. If they don't want to do it that way, then applying the same test on an individualized basis should get you to the same result if they define the category correctly. >> So the judge would then conduct an evidentiary hearing hearing from experts on both sides about whether marijuana actually put the risk of gunfire. >> I mean, if the government wants to say, we want to set a

categorical rule. I don't think it's too much to ask them to do that for masks. >> I don't, as to some substances, I think it's not going to be that hard. It's just marijuana. We're all here in these cases of rise because we're a want to, boy, it would be difficult for the government to make that showing when it is the considered judgment of 40 states, the district of Columbia, three territories and the president. >> That is not that kind of evidence. >> I think you can see that there are some

substances that the government would have a pretty easy time on a categorical basis, maybe cocaine, maybe meth. >> Absolutely. We are not here to suggest that you couldn't ever have a categorical approach as to a particular substance. It's just that if the government wants to do that, I think it has to

do it under brewing. >> So it could not have a critical approach with respect to Justice Kagan.

>> They can come make their case. And then you decide, I think the right test to apply is, did they define the category close enough to the habitual drunkard concept? Maybe the level of generality is enough to capture your drug. But it's not going to be enough to capture something that is the type of thing that people regularly all throughout the country lawfully use a few days a week and most states and the president have made the judgment that that is not so categorically

you're dangerous that nobody can use it safe. >> The trial you're contemplating after Congress has gone through whatever it's gone through and establishing the record and making the determination and then it's going to be renegade and then trial. The fact that your client wins in one trial there doesn't mean there's not going to be another trial and another district and the the case where I develop until I suppose there's a conflict among the circuits and then we would have to

evaluate the scientific record. >> For one, the government does have to do this anyway as to its scheduling determinations which can be challenged. The only difference is they want a lesser burden of proof which they get in the APA context and they would get under brewing. They have to defend them and exactly this way. They don't just get to say trust us we got it right. Now if the government's getting it right, I just don't think this is going to be that hard as to the substances that it's

“pretty clear can't be used on a regular basis by anybody safely and that's why you're not seeing”

these cases come up to you and you're not seeing the lower court struggle as much when it's somebody who's admitting that they take heroin every day. Nobody's getting as concerned about the scope of the statute as applied to certain substances but applying the test ensures that the government doesn't make category mistakes in the way that the president himself seems to think the government currently has done as to marijuana. >> Do you think the statute when with the word

habitual added you make a big deal about that in your brief, really does then reduce to addiction?

have to be a habitual user to fall within the definition of addiction and it would be particularly odd

“because that's not enough to make you addicted to. You need to be habitually using so ads to either”

endanger the public health and safety etc or to have lost the power of self-control so it's really you know that the addicted to prong is designed to kind of be narrower yet all the sudden you'd have this unlawful user prong that's so broad that it renders that prong irrelevant. I don't think that that's really an available interpretation a kind of a coherent interpretation of this statute when Congress set out to different concepts that it was trying to get out of. >> I wonder do we need to get into

much of this about how the government could proceed or with categorical versus individual or

how it applies to addicts he wasn't charged under that part of 1922 G3 and all we know I mean the only thing

we know in the record is he uses some marijuana we don't know how much or in what potency a few times a week and why isn't it just enough to say whatever else may be true that is not an abitual drunkard. >> We would be happy for the court to resolve the case on that narrow ground. I mean I'm trying to be very responsive I appreciate the court wants to think about this statute as a whole but you really don't need to answer any of the questions about the addicted to prong today

“and really even as to the on new lawful user prong all you have to say is either whether the”

government's thinking about this individually or categorically they just can't get there simply by saying somebody uses some unknown quantity of marijuana some unknown time of day a few times a week where we are very happy to prevail on that narrow ground. >> Which sounds to me very much like it is sounding in traditional understandings of this category being over broad that to the extent that we are concerned about the the perceived mismatch between historical drunkards and regular

users it really is just that Congress's purpose here which is to prevent dangerous people from having guns is not you say furthered by including this kind of person in that statute. >> That's right and that's over broadness and you know I think under brewing the right way to say it is it's over broad as to the historical category but I think you could kind of get to the same place by saying even if you were doing means unscrewing it's over broad right it's just over broad in the sense

that this particular at least as to what you've got before you in this case is over broad even under a traditional conception of giving the government a little bit more room for reference on its determination that doesn't mean the government might not have a much stronger case with somebody who regularly uses a different substance if you apply the same principle across the board the government's going to win when it got those categorations correct. >> So you think the government

could say someone's an unlawful user but not an addict as to particular kinds of drugs and that would

be sufficiently connected to historical tradition that it would satisfy the second amendment that's

“what you're saying. >> I think the one way to understand this statute which isn't the easiest”

statute in the world completely understand but would be that the addicted to prong is focused on people who use so excessively and repeatedly as to fit the habitual junkyard category it's focused on people who do that out of physical or psychological compunction and the unlawful user can reach the people who do the same thing out of choice and so either way you have the same ultimate principle but you could read this statute as saying one is about addiction in the most traditional

conception of addiction and the other is about abuse of use even if it's just that somebody chooses to spend much of their life in a junk and stupor or in toxic high on drugs. >> Thank you council justice Thomas. Justice Alito, you say that there is not a problem with at least I understand what you're saying there is not a problem with prohibiting everybody who is addicted to controls. Substance from possessing a gun, is that correct? >> We do not have a problem with that.

>> And that applies to everything every controlled substance. >> So that would -- >> I think the concept of addiction, the determination that's made to show that someone is addicted to something is I understand the kind of determination that's going to show that somebody is engaged in the kind of use that renders them or risk all the time. So I just want to be very clear about you know we're not conceding at like some generic level it's because the concept -- >> Seriously you think that being

addicted to every single drug in the schedule renders that person a danger. >> You be why you don't think arguments can be made that being addicted to I don't know the illegal use of ambient. >> I'm not sure you can. >> Not sure you can. >> Not sure you can. >> With that that person

>> And this is where we might have a marginal disconnect about you know when I think of what

“would be necessary to prove that someone's addicted to something it's going to need to it's going”

to incorporate something like the definition of the controlled substances act that's asking about whether you are a threat to yourself or others and maybe there's some something that you just can't make a showing that somebody's addicted in that sense. But if you understand that. >> If you understand that. >> Can then add it as to every substance in the list insist on an individualized determination or not. >> The statute requires that. I mean you can't see it. >> It's looking

to be an individualized determination. So the matter of fact that someone is addicted to something

that is a controlled substance is not enough for second amendment purposes. >> I don't know

how you determine that someone's addicted to a controlled substance without engaging in an individualized inquiry into their use. Once you've determined that someone's an addict you've determined it's not as to what they're not as to their use or even their reason for the use. But whether they're their situation renders them dangerous. >> I mean that is what the definition of addict in the controlled substances act contemplates that you have to assess somebody's use

by reference to the impact it is having in their life. So I don't think it works under the statute to say someone's an addict without having engaged in an individualized inquiry into

“the nature of their use and that's what what's required all across the country. If you want to”

adjudicate somebody a drug addict who can be subject to confinement or guardianship you have to

actually individually assess their use as a drug. >> If an individualized determination is required under G3, is an individualized determination as to that particular individual or is it as to the drug across the board? >> So I think the individualized inquiry is to whether you are addicted to a controlled substance. >> No, I'm not talking about addiction now, just to use. Whether somebody is prosecuted for being a user of drugs. >> Sure. >> And you say you can't do that, you have to

have an individualized determination as to something. And what is this thing that there must be an individualized determination? >> I want to be clear again, we are not actually saying that the only way to do this is through an individualized inquiry. For addiction I think it is because I think the concept of addiction requires it. But if the government wanted to say that there is a particular degree of consumption of a particular substance that it considers virtually anybody who consumes

in that quantity to be someone who cannot possess a firearm. We are not asking you to rule out the possibility that the government could make the showing that it that category is categorically

“analogous to the concepts that the habitual drunkard laws reflect it. We are not saying the only way”

they can do it is by coming in and making a case by case determination, they can proceed either way, it is just that if they want whichever way they want to do it, they have to meet their burden underburner proving that they did in fact make the right determination, they put either the person or the substance use into the correct category. >> I struggle to figure out how these individualized determinations can be made in the context of a criminal prosecution. The whole, the way in which

criminal prosecutions are conducted makes this extremely difficult. Now, the third circuit issued a very thoughtful opinion about what they thought is required in an individualized determination. And what they said was that the test is whether disarming a drug user is needed to address a risk that he would pose a physical danger to others. Is that the test that you would apply? >> That's not necessarily the test we would ask you to apply a test more akin to the historical one,

but -- >> Okay. >> What is it? What is it? >> Sure, the test is whether somebody's use is rendering them in a able to function in their day-to-day life all the time. Whether it's because

they're always intoxicated or because they're used as such that it's impairing their ability

to function in their day-to-day life. That is what the Civil Commitment Law's asked. They said, "Is someone a drunkard incapable of taking care of himself or his property, or you had to prove that a person by excessive drinking is unable to attend to business or his lost self-control. You had to prove these things." >> I'm just puzzled by most of your argument. Suppose somebody -- I just don't understand what you're arguing for. Suppose someone

regularly takes a drug and during the period when that person is taking the drug, that person is super dangerous. Congress could -- the second amendment would not permit Congress to say, "That's too risky." >> It might -- and if you look at the laws, the definitions that were used historically, some of the cases talked about in terms of, "Is somebody the type of person who's

themselves. They're focused on that question of saying, "Not just, are you always drunk?"

But are you so habituated to it that you are drunk a lot of the time and we can't trust

“enough for you to just, you know, be around the one day a week. That's why we're going to”

commit to you or have guardianship or have these severe consequences. And so we don't think, I mean, you know, the traditional way, the addiction prong is applied, is to give juries the instruction from the CSA definition which requires a jury to make an individualized finding about whether somebody's use is impacted. >> All right, well speaking about speaking of juros. These are the factors that the third circuit said an individualized determination should entail. But length and

resiliency of the defendants used during, and shortly before, his gun possession. The drug's

half-life, whether use of the drug affects a person's judgment, decision making, attention, inhibition, or impulse control, whether the drug may induce psychosis, the drug's interference with a user's perception of his own impairment, the long-term physical and mental effects of the use of that drug. Are those in a criminal case with those be submitted to the jury? >> We are not suggesting that juries would need to be instructed to consider all of those things,

but I certainly think the government would say that's the type of evidence we should be able to present when we want to show that a drug was correctly added. >> So experts would testify on all of these matters on the jury would decide whether the person met the test for being a danger. >> Don't think the government's going to need to do that when it comes to a lot of cases and a lot of substance.

“>> It may be not always, but if that's had issues, that's what's going to be required.”

>> Again, I mean, the government can't even put a substance on one of these schedules without having to withstand if somebody wants to bring a challenge to that. They're going to have to prove it up. >> We're talking about criminal prosecutions and what needs to be shown in a criminal prosecution. I don't know where the line the sixth amendment line is as to all these things, but even let's assume that some of them, all the ones that go to questions and science, for example.

You would have every single detentually, every district judge in the country would make a finding. And I find as all of these drugs, I find that the use of this drug that users of this drug are dangerous or they're not dangerous. Every district judge before whom that issue comes up, would make a determination on that scientific question.

“>> No, I think you can give the jury a standard that asks whether somebody's use is impairing”

their ability to function. And the government can then choose to present evidence. They can present evidence about their life. They can present evidence about the nature of the particular substance and the fact that it is a substance that carries with it effects for days at a time. It can present evidence. And the jury can make an ultimate determination just as the jury has to do

as to the addictive. >> It's been said that Congress never made a judgment about the dangerousness

of using all of the substances on the control substance list. Is that right? >> I don't think Congress has made a determination that anybody who uses those substances regularly is a public safety risk. >> Isn't that what Congress did when it enacted G3? >> No, because Congress only applies that if somebody's use is unlawful. And so somebody can be using a controlled substance regularly under the controlled substances act, and Congress deems them not to be a public safety risk.

So long as they got the prescription for the sleep rate and they aren't the spouse who didn't. >> One final question. In the cases in which we have previously held that, the second amendment, prohibits certain government regulations, heller, McDonald, grew in. There have been a lot of the sky is falling arguments about the consequences of that for public safety. In behave, I said that I think that 922G has a more direct and severe bearing on public safety than the issue of whether

a law-abiding citizen can possess a gun in the home or even as in a ruin, carry the gun outside the home. Do you disagree with that? Here we're talking about the table when people, like people who have committed felonies. >> Sure, but I would note that under 922G3, it's only about five prosecutions that are under G3, the vast majority of them are under provision, other provisions and about 80% are under G1. So I don't think the arguments that we are making today

would vastly endanger the government's prosecutorial efforts under 922G. >> Does this only work? If you look at the statute, there's two components. Unlawful user

defined by the statute, correct? >> It's defined by the controlled substances act, not the gun

control act, but it's-- >> But it's-- >> There is a cross-reference with suggests Congress intended the statutes to be read and-- >> Me and any individual who who builds-- this is the definition. Habitially uses any narcotic drug, so it's to endanger the moral public morals, health, safety, or welfare, or is so far addicted to the use as to have lost the power of self-control. That would go to a jury. >> That does go to jury's law. >> It has to go to the jury's.

>> So-- >> Justice Alito's concern about each jury determining is inherent in the definition, correct? >> It's inherent in an addicted to prosecution. >> Now, with respect to who is an unlawful user, I've been surprised that in your cert petition and even in this brief, in your briefing, you haven't really raised the vagueness issue. But it seems to me that the government is sort of giving unlawful user a definition that's not present in the statute, correct? >> Correct.

>> Which is why we-- we did lead with a lengthy argument, and our response brief that we think the statute has an independent vagueness problem that is set of sort of baked into trying to

analyze whether the statute is constitutional under the second amendment. If you don't know it's

“actually what it means, that's in its own problem. >> Historically, the only thing that was ever given”

meaning to was a habitual drunkard, correct, and that had maybe a common law background definition. But there's nothing in any of our history or tradition that has created a use definition, correct? >> That's right, and if you take the early statutes from the 1920s and 30s, none of them had an unlawful user prong, and even today there's only eight states that have an unlawful user prong, almost all of them are focused on addiction, or focused on it through the lens of even more

concretely, things like, have you been adjudicated to have a substance disorder or committed for treatment for a substance use disorder? >> Thank you, Council. >> Justice Kagan? >> Ms. Murphy, I wanted to take you back to and answered that you gave to Justice Alito a while ago, because I was a little bit surprised by it, and I want to make sure I understand your view on this. So the question that I understood him to ask you is that take a drug, you know, any drug you want,

that is very dangerous while you're in its grip. You know, you're in some kind of psychosis, or you've lost touch with reality or whatever it is, and it's very dangerous, and if there's a gun around, that's like a real problem. But what I understand your test to be is that that's not enough, because if you're not in its grip, if you're fine when you're not in its grip, then you don't meet the historical analog.

And I want to make sure that that is your answer first. >> Yes, yes.

>> And if that's a somewhat problematic answer, if, you know, how do you set, I guess what I'm looking for is, like, how do you win with marijuana, but you don't win with that kind of drug, where the kind of drug, where really anybody looking at it would say, oh, that is a dangerous thing to have that drug and a gun in the same place. Is it just, you just can't do it? >> Well, I mean, the government doesn't seem to think it can do it, because it's saying the statute requires habitual use. I don't know exactly where they draw the line in a habitual use.

>> But I'm talking, I'm actually talking about a habitual user, it's like, you know, they're a person, and it's every other day they're using this drug, but on the day they're not using this drug, everything's cool. >> Yeah, and I think at a certain point when you take that concept of habitual drunkard, it does take into account the nature of the substance and, you know, I mean, if you think about alcohol itself,

“that's why the test was focused not just on somebody regularly consuming it every day,”

or every other day or whatever it was, but consuming it to the point of intoxication. And if you have a substance that by its nature, any consumption of it renders you the equivalent of, like, massively, massively intoxicated, then the habitual drunkard tests may be enough to capture the person who's using that every other day, because we agree that the habitual drunkard tests didn't require somebody to be intoxicated all the time, but where the analogy falls apart,

vis-a-vis marijuana is the government saying, it doesn't matter if it's somebody who's taken the sleep gummy, smoke and one joint a couple nights a week when they come home after a long day at work, or if it's the person who's smoking all day before they drive their car and operate every machinery at work or whatever it may be, they say none of that matters and we think it does.

“Thank you. This was it. This is Cameron. On the percentage of prosecutions, do you know how many?”

And I guess the government can also address this how many are under the addiction prong versus

cases. There seem to be very few cases that are only the addicted to prong, which isn't surprising,

because it's a harder case for the government to prepare. But there are several cases on where unlike this one, the government proceeded under both the unlawful user and the addicted to prong, and that's where this body of law has developed that says, we won't define unlawful user the same way the CSA defines added, but as for the addicted to prong courts do, sometimes look to that as the definition for addicted to. On the individualized assessment issue, just so I understand,

on addiction cases you're saying there has to be an individualized assessment whether the person is in fact an addict, but if so proved, there's no separate individualized assessment of whether

“they're there for dangerous, correct? That's right. That's why I mean it's a lie. And then on”

the language is a little confusing. There can be a categorical judgment once there's been a decision

you belong in the category. Exactly. Okay. So there's an individualized assessment and then that's it. For use though, I think you're saying there's to be an individualized assessment of whether they're a user weekly, I guess, is the government's test. And then on top of that, I think you're saying, but just correct me if I'm wrong, an individualized assessment of whether that use makes them dangerous or how would you? Whether that degree of use of that substance renders somebody,

in pairs there are ability to function most of the time. Is that the jury instruction? I think something, I mean, you know. I, of course, you're going to get a little bit of effort to figure out the best way to instruct it, but that's the concept that I see as the tradition unifying the historical laws about habitual drugs. Because this is going to rubber hits the road

“with the actual jury instruction on this. Yes. And that's why if I were this court, I'd leave a”

little bit of room for our courts to figure out the best way to do this. I mean, as courts have been

working through the second amendment issues, they've been kind of figuring out different ways to

come at it and they've been doing so in cases where the government actually wasn't relying on the habitual drunkard tradition, so they were operating in like even a little bit more of a vacuum, but I think that's the concept to get at is your use, impairing you kind of most of the time, even if it's not that you're, you know, impaired in the sense of intoxicated every moment of every day, but it's impairing your ability to function in your day-to-day life. And then last

question, again, on the difference in the technical definitions between use and addiction, given the governments use of the word habitual with use. Is there such a person? Can there be a person who's who habitually uses who does not habitually use so as to endanger the public morals? Sure. I mean, I think if you think about marijuana use, like somebody could be, I guess it's held up on what you mean by habitual users. Well, I maybe can't wait to mean by public

morals, but that's the statutory term and I've seen, I've seen, I've seen jury instructions that looked at some that actually used the phrase public morals. I'm not sure what that means. And look, like, you know, I would probably resist and an addicted to case whether that particular language about public morals really maps on to the conception of dangerousness that matters here, but if you're kind of focused in particular on are you endangering public safety? I think that

gets you there and that is part of the definition. Thank you. Justice Stewart, Justice Jackson. Thank you, Council. Rebottle Miss Harris. Thank you, Mr. Chief Justice. I'd like to contrast where this court might go with respect to people who present a special danger of misuse. Our position is Congress made adjustment and 922G3 itself that it is in fact dangerous to mix firearms with habitual use or addiction to controlled substances. That is

backed by the head of historical habitual drunkard tradition where there weren't these sort of fine-grained lines that responded a peer to be drawing as to exactly how incapacity to you are. It's sort of a common approach that starts with magistrates and justice of the piece making these determinations. Over time, there's more consensus, but I find it ironic that they're focused on modern-day civil commitment laws to try to superimpose on a body of sort of case-by-case

determinations of just as the piece do you fit into the category of habitual drunkard or not some sort of unifying theme. What they on the other hand want to do with respect to these hundreds of prosecutions a year under 922G3, not a mere five, and most of which are for the unlawful user prong, the vineshare for sure, is who reverged to a what I think ends up being individualized

“determinations all the way down. These seem to say you have to as a constitutional matter,”

I think on this ring, again, of these modern laws, have individual determinations for every single addict under that prong. And otherwise, they seem to sometimes say category by category is fine for some drugs, but I really don't know how that would hold up. What they seem to be saying is actually even for categories like heroin, like PCP, whatever it is, you still would have to have a chance

that make you dangerous? I think all of it collapses, and that is a rejection of what the court

rejected in Heller onwards, which is there can be some categories on a category by category

“basis of a special endangered misuse. I think where does this leave the rest of the inquiry”

it certainly creates a mess of 922G3. I think what we've heard about are mini trials in every single case, and an attempt to capture just as Cagan's hypothetical of the hallucinogenic non-addictive drug. Is that sufficiently similar to the effect of alcohol on founding era generation people who were sufficiently drunk, sufficiently amount of the time in the same way as alcohol to be sufficiently

dangerous for this purpose? I don't know how anyone would figure that out, but certainly what's

happening now is not disrecords finding an easy time of it as Chief Judge Coloton's recent descent in Lovina indicates. It's just remains all the way down with no really good way to proceed, and making all these kind of pharmacological judgments that are very, very difficult for disrecords

“and really do end up being individual determinations. Where does this leave the rest of 922G?”

I think that's a real problem also with response approach. It's not just apparently for 922G3, where there has to be what will back into individualized Healering in a mess of a position. I think this is all the way down. From G1, fell in every single category of fellents, even a serial murderer,

you would have to be able to second guess. Is that person really dangerous? Is that a good

proxy? How many people? What are the kinds of offenses to G2, the fugitive? If you're just out for a couple days, are you really a dangerous fugitive? Who should be disarmed? To G4 with respect to mental illness? I think the question is just cascade from there and make an absolute hash of the 922G framework, which has been something the government has relied on to deal with with more as Justice Alito's descent and behave notes, something that is a cornerstone of violence prevention.

“Third, I don't think you can shortcut to who knows what a habitual user is. I think courts”

of appeals have provided a good garlic stick for this. There is no confusion on this. The distinction between a habitual user and an addict is both very real and important. A habitual user, again, is judged by the frequency of their use. We're at the indictment stage here. The government will have to prove beyond a reasonable doubt to a jury that the frequency of use here at which again is conceitably multiple times of week of an illegal substance, marijuana, is, in fact, habitual

use under the way courts of appeals have interpreted this. I don't think that's confusing. I think the knowledge requirement presents a large amount of checks and I think that does real work vis-a-vis the addict prong, which deals with people who can't control their urges, even if they're not currently using the substance. The two work in tandem and the fact that the respondent seems to acknowledge that perhaps lots of these unlawful users can in fact be

constitutionally prohibited from possessing firearms, at least only during the period of their habitual use. I think is a problem for respondents position, because if all they have at that point is this mess of individualized determinations, then the category by category approach is out the window for every single drug. No matter how dangerous, no matter how different it is from alcohol. Even if it is the most dangerous hallucinogenic drug that even if you use it once a week causes hallucinations

at an unpredictable period going forward. I think that is the approach that is risked here, and the better course is to say habitual drunkers are a valid tradition. You do not have to exactly match the degree of alcohol impairment to fit in that tradition. Thank you. Thank you, Council. The case is submitted.