An off-ramp for the court’s next big gun case

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Last year, federal prosecutors obtained a conviction against Hunter Biden under 18 U.S.C. § 922(g)(3), the federal statute that makes it a felony for any “unlawful user” of a controlled substance to possess a firearm. The government has also invoked the same statute against numerous individuals who smoked marijuana at some point before buying a gun, even in states where marijuana is legal. Under a longstanding regulation interpreting the statute, tens of millions of Americans could fall within its reach.

Later this term, in United States v. Hemani, the Supreme Court will address unlawful-user prosecutions under Section 922(g)(3). The case has been billed as the court’s next major Second Amendment battle. But it need not be. The court can and should avoid that constitutional thicket by resolving the case on a statutory ground. That outcome might be less dramatic, but it could have broader practical significance for how courts deal with open-ended language in a wide array of criminal statutes.

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In Hemani, the U.S. Court of Appeals for the 5th Circuit relied on an earlier appellate decision to determine that the Second Amendment prevents unlawful-user prosecutions of those who are not impaired at the time of gun possession. The appellate court analyzed Section 922(g)(3) under what is known as the “history and tradition” test required by New York State Rifle & Pistol Association, Inc. v. Bruen, reasoning that “there is no historical justification for disarming a sober citizen not presently under an impairing influence.” The government is now asking the court to reverse the 5th Circuit. In its view, a more sweeping ban on drug users has historical support, including Founding-era restrictions on gun ownership by “habitual drunkards.”

Before the court considers the constitutionality of Section 922(g)(3), the justices will first have to interpret the statute itself. And although Section 922(g)(3) has been on the books since the Gun Control Act of 1968, the court has not yet had occasion to construe it.

The statute makes it a federal crime for anyone “who is an unlawful user of or addicted to any controlled substance” to “possess” a firearm. The term “addict” is expressly defined by another statute. But no statute defines “unlawful user,” the prohibited category at issue in Hemani.

The phrase “unlawful user” is vague. It doesn’t clearly draw a line between who along the spectrum of drug users is covered and who is not. Does unlawful-user status apply to anyone who has ever used drugs illegally, even if only once or only occasionally? Does it apply only to someone holding a gun while high? Or is the line somewhere in between?

If the court decides that the law applies only to people who are armed while intoxicated, the Second Amendment concerns largely vanish. There is stronger historical support for disarming someone who is high – and thus not of sound mind – than there is for disarming someone who happened to smoke a joint last weekend but is no longer impaired.

To decide where to draw the line on unlawful-user status under the statute, the court could rely on various tools of statutory construction. One candidate is the rule of lenity, which tells courts to construe unclear language in a criminal statute in favor of the defendant. Historically, lenity played a central role in construing criminal statutes. Yet, despite Justice Neil Gorsuch’s campaign for its restoration, the modern court has treated lenity as a rule of last resort that is applicable only when “grievous ambiguity or uncertainty” remains after all other tools of interpretation have been exhausted. The result is predictable: the court rarely, if ever, relies on lenity as a firm basis for narrowly construing criminal statutes.

When the court does narrowly construe criminal statutes, it tends to do so without relying on any generic rule at all, opting instead for statute-specific ordinary-meaning analysis and intuition – what I have elsewhere called “ad hoc constructions.” This approach produces narrow results in the short term but instability in the long term, leaving no enduring principle to guide how Congress, lower courts, and prosecutors should apply other criminal statutes with indeterminate language.

Hemani offers the court an opportunity to use a more principled framework. At least two good options are available.

The first is to revitalize lenity itself – by embracing what I have called “major-questions lenity.” In the context of administrative law, the court uses a rule known as the major questions doctrine to stop federal agencies from making massive economic or political changes without clear permission from Congress. The logic is that Congress – not unelected bureaucrats – must make the big policy choices. The same logic should apply to criminal law. If Congress wants to turn millions of Americans into felons, it needs to say so clearly.

Indeed, for decades, a federal regulation has taken the position that a person can be labeled an “unlawful user” under Section 922(g)(3) based on a single use of a controlled substance within the past year, as demonstrated by a positive drug test or drug-offense conviction. Given that nearly one in four Americans ages 12 and over have unlawfully used a controlled substance within the past year, the regulation turns the statute into a sweeping ban with massive social implications.

Notably, the government’s brief in Hemani completely ignores this regulation. Instead, the solicitor general asserts that Section 922(g)(3) “applies only to habitual drug users, and imposes only temporary disarmament while that habitual use persists.” That reading will come as news to the FBI – whose background-check guidance continues to state that proof of single use within the past year renders one an “unlawful user” unable to buy a gun.

The longstanding federal regulation resolves the statute’s indeterminacy, but it does so in favor of extraordinary breadth. The solicitor general’s newly proposed habitual-user construction is narrower, but it fails to resolve the indeterminacy. How much drug use constitutes a habit? And when exactly has one’s habit ended? The government’s brief doesn’t say.

The court should insist that the statute’s text cannot bear either of these constructions because Congress hasn’t clearly authorized them. Instead, the court should apply lenity to construe “unlawful user” in the narrowest clear way – as covering only those under the immediate influence of drugs while possessing a gun.

If the court isn’t interested in reviving lenity, a second route is available. The justices could apply what I have called “vagueness avoidance,” a distinct tool of construction constraining penal statutes that pose constitutional vagueness concerns – statutes like Section 922(g)(3).

Vague language in criminal statutes presents constitutional concerns under what is known as the void-for-vagueness doctrine because it doesn’t adequately define the line between lawful and unlawful conduct. That undermines due process and the separation of powers by effectively delegating the legislative task of crime definition to prosecutors, thereby inviting arbitrary enforcement and failing to provide sufficient notice.

Yet in virtually all cases involving a federal penal statute, the court doesn’t deem indeterminate statutory language unconstitutionally vague. Rather, it engages in vagueness avoidance – adopting a narrow construction that sidesteps the vagueness concerns by allowing only applications of the statute that fall within its identifiable “core” meaning.

What would that mean here? In Hemani, everyone agrees that “unlawful user” captures a core category of those who are impaired at the time of possession. But beyond that core category, it is exceedingly difficult to draw a coherent line – as illustrated by the various attempts of the federal courts of appeals, including the U.S. Courts of Appeals for the 2nd, 3rd, 5th, 7th, 8th, 9th, and 10th Circuits.

The solicitor general’s habitual-user construction fails to fix the line-drawing problem because it doesn’t specify when someone begins and ends a drug habit. Vagueness avoidance offers a better path. The court can rule that the phrase “unlawful user” covers only the clear core category – people who are intoxicated at the time of possession – and nothing else.

The solicitor general’s reading of “unlawful user” has another fundamental flaw. It renders a different portion of the statute superfluous. Recall that Section 922(g)(3) also prevents gun possession for those who fall into the “addict” category. Congress expressly defined “addict” as including someone “who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare.” The solicitor general apparently believes that by separately including an “unlawful user” category, Congress meant to capture all habitual users, regardless of whether they pose a danger. Indeed, the government’s brief insists that it need not “make[] an individualized showing of dangerousness” to prove a violation of Section 922(g)(3). But if that were so, the habitual-user definition of “addict” would serve no function.

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Both major-questions lenity and vagueness avoidance share a virtue missing from the court’s recent cases construing penal statutes: they provide a clear rule for future cases involving other criminal laws. When the court relies on ad hoc ordinary-meaning analysis alone, it encourages prosecutors to push the envelope on other laws, knowing that the worst outcome is a course correction years down the road. But by the time the court steps in to insist on a narrow reading, many defendants have already been unfairly punished – just like all those swept within the federal regulation’s expansive view of “unlawful user” during the decades preceding the solicitor general’s newly announced position. The interpretive lag has real consequences.

If in Hemani the court elects to adopt a narrow construction of “unlawful user” in Section 922(g)(3), however, then the Second Amendment issues would become easy. There would be no need to dig through history books to see how the Founders regulated guns for habitual drunkards. The court could simply rule that the law means only what it clearly covers and leave the rest alone.