Protecting Freedom by Protecting the Constitution: The Significance of Hemani

 The Supreme Court’s unanimous decision in United States v. Hemani represents far more than a victory for one citizen’s Second Amendment rights. It serves as an important reminder of the judiciary’s proper constitutional role: to say what the law is—not what judges might prefer it to say.

At issue was whether the federal government’s prosecution Ali Hemani under 18 U.S.C. §922(g)(3), a statute prohibiting possession of a firearm by an unlawful user of a controlled substance. The government sought to strip Hemani of his constitutional right to keep and bear arms based solely upon his admitted marijuana use. It neither alleged that he was intoxicated while possessing a firearm nor demonstrated that he posed a danger to himself or others.

The Court correctly held that the government’s application of the statute violated the Second Amendment. What is especially significant is not merely the outcome, but the analytical path the Court followed to reach it.

Justice Gorsuch’s opinion faithfully applied the constitutional framework established in Bruen. The Court began where constitutional interpretation must always begin, with the text itself. The Second Amendment declares that “the right of the people to keep and bear Arms, shall not be infringed.” Because Hemani’s conduct fell within the Amendment’s protection, the government bore the burden of demonstrating that its restriction was consistent with our Nation’s historical tradition of firearm regulation.

That is constitutional judging at its best, where here even ALCU and the NRA found common ground to agree.

Rather than balancing competing policy preferences, measuring social utility, or deferring to governmental assertions of necessity, the Court asked the only question that matters in constitutional adjudication: What does the Constitution permit government to do?

The government attempted to justify its actions by analogizing Hemani to historical “habitual drunkards.” Yet the Court carefully examined the historical record and found the analogy wanting. The laws cited by the government targeted fundamentally different individuals, for different reasons, and through different procedures. Most importantly, those historical laws generally required some individualized showing of incapacity or danger and afforded procedural protections before liberty was restricted.

The application of the federal statute in this case, by contrast, automatically deprived individuals of a constitutional right based solely upon their status as unlawful users of a controlled substance. The Court refused to permit such a broad governmental power absent clear constitutional justification. That approach should encourage every American who values constitutional liberty.

The significance of Hemani extends beyond the Second Amendment. The same judicial methodology that protected Hemani’s right to keep and bear arms can protect other constitutional freedoms as well, including the freedom of religious exercise, freedom of speech, freedom of association, parental rights, and freedom of conscience.

When courts begin with constitutional text, history, and original meaning, individual liberties receive the protection the Constitution promises. When courts instead begin with preferred policy outcomes, constitutional rights become vulnerable to the personal philosophies of judges and government officials.

The Framers did not establish a government of judicial preferences. They established a government of limited powers restrained by a written Constitution.

The genius of the American constitutional system is that judges are not authorized to rewrite constitutional guarantees to accommodate contemporary political objectives. Their duty is to faithfully apply the Constitution as written. In Hemani, the Court demonstrated precisely that discipline. The justices did not decide whether marijuana use is wise. They did not weigh competing policy arguments. They simply asked whether the government’s enforcement action was consistent with the Constitution’s text and our Nation’s historical tradition.

That is what judges are sworn to do.

And whenever courts faithfully say what the law is, rather than what they wish it to be, constitutional freedom is strengthened for all Americans.

The Hon. William Wagner (Ret.) serves as the WFFC Distinguished Chair for Faith & Freedom at Spring Arbor University. He holds the academic rank of Distinguished Professor Emeritus after teaching Constitutional Law and Ethics at both secular and Christian universities. Outside academia, William served with distinction in all three branches of the federal government.