The U.S. Supreme Court’s recent term highlighted the challenges and controversies surrounding the judicial philosophy of originalism, particularly in its application to modern legal questions. Originalism, a method of constitutional interpretation emphasizing adherence to the text’s meaning at the time of enactment, was once championed as a way to constrain judicial discretion. However, its use in the Court’s June 18 ruling in United States v. Hemani has raised questions about its practical viability.

The case stemmed from Section 922(g)(3) of the federal criminal code, a provision enacted in 1986 that prohibits firearm possession by an “unlawful user” of a controlled substance. Alis Hemani, living in the Dallas area with a steady job and a gun kept at home, occasionally used marijuana, a controlled substance. The government prosecuted Hemani for violating the law, prompting a constitutional challenge grounded in the Second Amendment.

The legal issue hinged on whether the government could justify banning firearm possession by marijuana users under the Second Amendment using “history and tradition,” as articulated in the Court’s 2022 Bruen decision. Bruen requires that modern firearm regulations be supported by analogous historical regulations from the era when the Second Amendment or the Fourteenth Amendment was ratified. Since marijuana was not widely used or regulated in the late 18th or 19th centuries, the government relied on a historical analogy to “habitual drunkard” laws, which aimed to remove visibly intoxicated individuals from public life and restrict their access to firearms.

The Supreme Court unanimously rejected this analogy. Writing for the majority, Justice Neil Gorsuch stated that the government’s attempt to equate casual marijuana use with historical drunkenness laws failed on multiple levels, including the fact that “habitual drunkard” statutes typically required formal adjudication before imposition of restrictions, whereas Section 922(g)(3) does not demand proof of addiction or incapacity. The justices concluded that the historical record does not support extending such firearm restrictions to modern drug users under the originalist framework.

During oral argument, several justices expressed skepticism about the government’s position. Justice Samuel Alito noted that many substances currently regulated or prohibited were unknown to the framers of the Constitution. Justice Gorsuch questioned how founding-era figures might have defined habitual drunkenness, citing examples of routine alcohol consumption by John Adams, James Madison, and Thomas Jefferson. The exchange elicited laughter in the courtroom, signaling the justices’ doubts about the government’s historical analogy.

In her concurring opinion, Justice Ketanji Brown Jackson, who was not on the bench when Bruen was decided, acknowledged the difficulties imposed by strict adherence to originalism in cases involving modern issues not contemplated by the framers.

The unanimous ruling in United States v. Hemani illustrates the tensions inherent in applying an originalist approach to contemporary legal questions, particularly when historical precedents are tenuous or absent. It underscores ongoing debates about the role of history in constitutional interpretation and the limits of originalism in addressing evolving societal realities.