Tag: in-the-news

From Judge Kyle Dudek (M.D. Fla.) today in Reilly v. U.S. Att’y Gen.:

This case presents a conflict between individual rights and executive sovereignty. On one side are liberties guaranteed by the First and Fifth Amendments—specifically, the right of a public employee to be free from political viewpoint discrimination and the foundational promise of due process. On the other side sits an equally formidable principle of structural governance: the Executive Branch’s exclusive Article II authority to control access to national security secrets. The friction between these two forces becomes acute when, as here, a plaintiff alleges that the Executive Branch used its security clearance process not to protect classified information, but as a pretextual weapon to execute an ideological purge.

The Supreme Court has left little room to maneuver when determining which of these constitutional interests wins out. See Dep’t of Navy v. Egan (1988). Egan treats national security as a virtually impenetrable executive enclave. The Court held that no judicial body has authority to audit the substance of an underlying security clearance determination when reviewing an adverse employment action. And at least in the Eleventh Circuit, this limitation applies not only to the revocation of a security clearance, but also to decisions made at the suspension or investigatory stage. Hill v. White (11th Cir. 2003). “To review the initial stages of a security clearance determination is to review the basis of the determination itself regardless of how the issue is characterized.”

The combined weight of Egan and Hill dictates the outcome here. Plaintiff Kelli-Ann Reilly sues the FBI and several officials “for politically motivated” retaliation and unlawful termination of her employment. She brings a few different claims, but they all center on the same “core issue”: “the FBI revoked her security clearance to punish disfavored political viewpoints and enforce ideological conformity.” Under Hill and its progeny, if the alleged malfeasance is tied to the security clearance pipeline, as here, the inquiry is at an end.

Make no mistake, the factual allegations in this complaint are troubling. Reilly’s charge that the FBI transformed its background check process into an instrument for political screening is profoundly troubling. But institutional discomfort cannot hand a federal court jurisdiction it does not possess. Because evaluating Reilly’s claims requires inquiry into the security clearance process itself, her case “is not within the jurisdiction of the courts.” …

Here are the relevant facts from Reilly’s complaint, which must be accepted as true at this stage. Reilly worked at the FBI as a financial analyst for twenty-six years. She held a Top-Secret security clearance and successfully passed several periodic security-clearance reviews. She steered clear of any disciplinary actions or internal misconduct. Her record, in short, was spotless.

Then the 2020 presidential election happened. Reilly told her supervisor that she felt the election “involved irregularities and might be overturned through lawful judicial processes.” The institutional reaction was quick. Within a month, her security clearance was suspended. As the FBI tells it, she had relayed “baseless conspiracy theories associated with” possibly violent or criminal organizations. Concluding that these viewpoints rendered her “potentially vulnerab[le] to manipulation and coercion,” the FBI stripped her security clearance and placed her on unpaid administrative leave pending a full investigation.

The FBI Security Division conducted that investigation and probed Reilly on a wide range of politically charged topics. They included not just the 2020 election’s legitimacy, but also questions about Covid-19’s origin, the efficacy of mask wearing, and Jeffrey Epstein. Unhappy with her responses, the FBI formally revoked Reilly’s security clearance in June 2021. The investigation found that she was “delusional” and made “unfounded conspiratorial statements.” According to the FBI, her personal conduct and psychological condition presented unacceptable risks. Left with her paycheck frozen, her security credentials stripped, and her professional reputation in tatters, Reilly ultimately elected to take early retirement—a choice she contends was no real choice at all, but rather a forced constructive discharge.

Perhaps understandably, Reilly feels persecuted. She now sues the FBI, its director, the United States Attorney General, and the United States Department of Justice (collectively, “the Government”). Her complaint raises a trio of constitutional claims and attaches alternative requests for declaratory or mandamus relief to the back of them.

Reilly first alleges that the FBI “constructively discharged [her] and revoked her” security clearance in direct retaliation for her perceived political alignment, which amounts to viewpoint-discrimination under the First Amendment. She then switches to the Fifth Amendment, lodging a procedural due-process challenge against the “unlawful, politically driven litmus test” she claims the FBI deployed to investigate her security clearance. She rounds out the core constitutional charges with a “stigma-plus” due process claim premised on the “false and defamatory smears” regarding her mental stability that the FBI published as part of the investigation. Relying on these underlying constitutional violations, Reilly bootstraps two final claims. First, she seeks a declaratory judgment “to establish that her constructive discharge was a legal nullity.” Finally, she requests “a writ of mandamus commanding defendants to return her to her former FBI employment.” …

Egan held that the decision to deny or revoke a security clearance belongs solely to the Executive Branch. The Court observed that such decisions fall squarely within the President’s core powers under Article II, § 2 of the Constitution. It interpreted that section to award the Executive Branch unfettered authority over who may or may not be made privy to government secrets. And it stressed how impossible it would be “for an outside nonexpert body” to referee such “sensitive and inherently discretionary judgment call[s].” Egan’s instruction is thus clear: only the Executive Branch gets to decide who gets a security clearance, and the judiciary cannot interfere with those decisions. While some courts have read Egan as leaving room for claims attacking the security clearance process apart from the ultimate decision, the Eleventh Circuit has not. Hill.

Against this backdrop, our hands are tied. This Court cannot entertain claims targeting the preliminary, investigatory, or final stages of a security clearance revocation, no matter how artfully framed. To hold otherwise would run headlong into Hill‘s core structural command that prohibits judicial oversight of the security clearance process.

Yet that is precisely what Reilly seeks. Although she carefully dresses her grievances in the language of independent constitutional violations, each calls on this Court to audit an unreviewable executive pipeline.

Her First Amendment claim takes direct aim at not only the final revocation but also the decision to launch the background check in the first place. Yet that maneuver runs headlong into Hill‘s explicit command that the opening stages of an investigation are structurally inseparable from its final conclusion.

Her due process counts fare no better, targeting the mechanics of the investigatory phase and the specific findings underlying the FBI’s security assessment. To evaluate whether those investigative steps were a politically motivated sham, or whether those psychological findings were false and defamatory, the factfinder would have to dissect the FBI’s process and decision-making—the very diagnostic task Egan takes off the table..

Boiled down, Reilly’s lawsuit is a direct assault on the FBI’s motives. Her complaint is saturated with allegations attacking the basis of her clearance investigation, suspension, and ultimate revocation. In her own words, the FBI’s investigation was a “politically motivated,” “pretextual” “ideological inquisition” designed “to probe [her] political beliefs” in “retaliation” for her being “politically affiliated with President Trump.” The FBI denies that politics or retaliation played any role in its decisions. So for this case to proceed, a factfinder would have to weigh these competing assertions and determine who is telling the truth. And the FBI would have to defend and explain its security clearance determinations, along with the motivations driving its investigation. That is simply a dead end under Hill and its progeny….

To be sure, a handful of courts have considered this issue and declined to stretch Egan far enough to swallow constitutional claims. The anxiety driving those decisions is easy enough to understand. Nobody is eager to hand the Executive Branch what looks like a blank check to bypass constitutional guarantees in this arena.

But whatever the wisdom of those cases, they do not write the law for this circuit. Egan carved out a national security enclave, and the Eleventh Circuit has endorsed its most expansive boundaries. If Congress (or a higher court) wants to recalibrate this structural balance and allow review of security clearance decisions, it is entirely free to do so. Until those bodies choose to act, however, “we must apply Egan according to its terms.” …

Kevin Huguelet represents the government.

The post Plaintiff Can't Litigate Claim That "Security Clearance Process" Was Used "as a Pretextual Weapon to Execute an Ideological Purge" appeared first on Reason.com.

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The Supreme Court on Thursday unanimously ruled that the government may not strip people of their Second Amendment rights or prosecute them for illegal gun possession simply because they are marijuana users. In United States v. Hemani, the Court held that neither policy is “consistent with this Nation’s historical tradition of firearm regulation,” the constitutional test established by its 2022 decision in New York State Rifle & Pistol Association v. Bruen.

Given the tenor of questions during oral argument in March, the result is not surprising. But the fact that the justices all agreed the government had failed to meet the Bruen test underlines the weakness of the Trump administration’s argument in favor of disarming cannabis consumers, which relied on a plainly inapt analogy to the historical treatment of “habitual drunkards.” The decision also reflects the blatant illogic of 18 USC 922(g)(3), which makes it a felony, punishable by up to 15 years in prison, for an “unlawful user” of “any controlled substance” to receive or possess a firearm.

The consensus is nevertheless striking given the Supreme Court’s history of facilitating the war on drugs by whittling away at constitutional restraints on searches and seizures. The Court’s deference to drug warriors has been so extensive that critics have long perceived a “drug exception” to the Fourth Amendment. But in Hemani, the Court makes it clear there is no drug exception to the Second Amendment.

The case involved Ali Hemani, a Texas man who was charged with violating Section 922(g)(3) based on two facts: He owned a pistol, and he admitted to using marijuana a few times a week. Although that would have been enough to convict him, the case never went to trial. A federal judge dismissed the charge on Second Amendment grounds in February 2024, and the U.S. Court of Appeals for the 5th Circuit upheld that decision in January 2025.

That result, the 5th Circuit said, was consistent with its August 2024 ruling in United States v. Connelly, which held that the Second Amendment bars Section 922(g)(3) prosecutions when they are based on nothing more than the elements specified in the statute. The Trump administration, despite its avowed commitment to “protecting Second Amendment rights,” asked the Supreme Court to reject the 5th Circuit’s reasoning in Connelly and reinstate the charge against Hemani.

The government’s lawyers may have hoped the circumstances of the house search that discovered Hemani’s gun and marijuana, which stemmed from an FBI terrorism investigation that went nowhere, would color the Court’s perception of him. If so, they badly miscalculated. While Justice Neil Gorsuch’s majority opinion mentions that the FBI “suspect[ed] Mr. Hemani and his family members of terrorism-related activities,” that detail does not figure in his analysis at all.

It is not hard to see why. The government “asks us to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing,” Gorsuch notes. The Trump administration’s defense of Hemani’s prosecution did not entail any claim that he was an especially dangerous cannabis consumer, and the absence of any such allegation proved fatal to its case.

“Ali Hemani uses marijuana a few times a week,” Gorsuch notes. “That fact alone, the government says, means he is automatically banned from possessing a firearm under federal law. And because Mr. Hemani admits he owns a gun despite this ban, the government now seeks to prosecute him, imprison him for up to 15 years, and disarm him for life.” That last consequence flows from another gun law, 18 USC 922(g)(1), which bans firearm possession by anyone who has been convicted of a crime punishable by more than a year of incarceration.

In seeking to justify such severe penalties for a man with no history of violence, the Trump administration argued that Section 922(g)(3) resembles early laws that authorized confinement of “habitual drunkards” in jails, workhouses, or asylums. The justices had no trouble recognizing the fallaciousness of that comparison.

In the 18th and 19th centuries, a habitual drunkard was not simply someone who regularly consumed alcohol, even in amounts that today might be viewed as extreme. “Had habitual drunkard laws applied to those who simply drank regularly, many notable early Americans could have faced trouble,” Gorsuch notes. “John Adams took ‘a tankard of hard cider’ with his ‘daily breakfast.’ Some say James Madison ‘consumed a pint of whiskey daily.’ George Washington often drank three glasses of madeira in the evening—’not enough to be considered a heavy drinker in his day.'”

Gorsuch also cites the bar tab for Washington’s 1787 “farewell party” at City Tavern in Philadelphia. The 55 guests, he notes, “are said to have ordered 54 bottles of madeira, 60 bottles of wine, 8 bottles of ‘Old stock,’ 22 bottles of porter, 8 bottles of cider, 12 bottles of beer, and 7 large bowls of punch.”

Even the American Temperance Society viewed people who “drank 12 ounces of hard liquor daily” as merely “occasional drunkards,” Gorsuch notes. In that organization’s view, “it took 24 ounces” to qualify as a “confirmed drunkard.”

Given the “culture of copious drinking” in early America, Gorsuch says, it should be obvious that labeling someone a “habitual drunkard” required more. Historically, that category was limited to people whose drinking was so out of control that it seriously disrupted their lives. “The government’s historical laws targeted habitual drunkards not merely because they regularly used intoxicants, or even sometimes used them to excess,” Gorsuch writes. “Instead, those laws focused on habitual drunkards because their drinking rendered them practically incapacitated and incapable of managing their affairs.”

The Trump administration’s analogy between occasional or regular cannabis consumers and habitual drunkards, in other words, fails right out of the gate. “The habitual drunkard laws on which the government relies here differ dramatically from §922(g)(3)’s unlawful user provision on every single metric the government invites us to consider,” Gorsuch writes. “They targeted different kinds of people, did so for different purposes, and operated in different ways.”

The government argued that Section 922(g)(3) makes sense because it aims to protect the public from “unusually dangerous” people who commit “violent crime.” It claimed laws deployed against habitual drunkards served a similar purpose. Gorsuch disagrees.

The vagrancy laws cited by the government “targeted individuals who ‘did not meet the societal expectation of work,'” Gorsuch notes. “Laws like these might have sought to promote productivity and suppress any number of real or perceived vices.” But contrary to the government’s gloss, they were not aimed at a category of “unusually dangerous” people. Civil commitment laws likewise “did not seek to protect the public from violence so much as to protect habitual drunkards from themselves and their families from financial devastation,” Gorsuch writes.

The government also cited surety laws, which required people to post bonds that would be forfeited if they behaved badly. But they did not resemble Section 922(g)(3) either. “Under those laws, a judicial officer could impose a surety of good behavior on individuals who threatened a ‘scandal,'” Gorsuch notes. “A scandal could include anything from ‘haunting bawdy houses’ to ‘evesdropp[ing]’ to, yes, being a ‘common drunkar[d].'” Imposing a surety “did not normally require a showing that an individual posed a threat of violence.”

Gorsuch notes another important distinction: The purported historical analogs cited by the government all entailed some form of judicial review before people’s rights could be restricted. Section 922(g)(3), by contrast, “automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user and until he ends his drug use—all without any pre-deprivation process.”

Gorsuch also questions the government’s claim that Section 922(g)(3) is designed to prevent violence. He notes that it applies to any drug listed in one of the Controlled Substances Act’s five schedules, which are based on criteria, such as medical utility and abuse potential, that have nothing to do with violence.

In addition to Schedule I drugs, which are completely prohibited, controlled substances include a wide range of medications that can be used legally by prescription. But if you take one of those drugs without a doctor’s approval, you qualify as an “unlawful user.” As Gorsuch notes, that means “a husband who regularly takes his wife’s prescription Ambien to sleep” or “a college student who routinely uses a friend’s Adderall to cram for exams” thereby loses his Second Amendment rights under Section 922(g)(3).

“The drug involved makes no difference,” Gorsuch writes. Nor “does it matter how much an individual uses or the effects it has on him. That someone regularly uses any substance found on any of the CSA’s five schedules for anything other than its ‘prescribed purpose’ is enough. Without more, the government asks us to analogize all such persons to habitual drunkards. To state the analogy is to expose its deficiency.”

According to the government, “it doesn’t matter what controlled substance an individual uses, in what amounts he does so, or whether his drug use has ever made him a danger to himself or others,” Gorsuch writes. “It doesn’t even matter why he keeps a gun or how safely he does so.”

That policy is neither fair nor sensible. And according to a unanimous Supreme Court, it is not constitutional either.

The decision, like the 5th Circuit’s ruling in Connelly, leaves open the possibility that “the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others,” Gorsuch notes. But it rules out any prosecution that does not include such evidence.

When the Trump administration asked the Supreme Court to take up this case, Solicitor General D. John Sauer warned that the 5th Circuit’s understanding of the Second Amendment “invalidates Section 922(g)(3) in the lion’s share of its applications.” Contrary to Sauer’s view, that’s a good thing.

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After reports that the Trump administration and state of Florida are considering abandoning the “Alligator Alcatraz” detention center in the Florida Everglades, the Department of Homeland Security (DHS) says it has transferred detainees out of the tent camp in preparation for hurricane season.

Florida news outlet WINK News first reported Tuesday that all detainees had been moved out of the Everglades detention camp. “As we enter into hurricane season, ICE and the state of Florida have moved illegal aliens from the soft sided facility. For the safety of the illegal alien detainees, we transferred them to other facilities,” an Immigration and Customs Enforcement (ICE) official told the outlet.

A DHS spokesperson gave an identical statement to Reason. DHS did not respond to follow-up questions asking if the camp was currently empty and if it would resume operations after hurricane season.

At a press conference Tuesday, Republican Florida Gov. Ron DeSantis said the camp had always been a temporary solution to help the federal government ramp up immigration enforcement after it had been “neutered” by the Biden administration. With the recent huge increases in funding to DHS and more cooperation between the federal government and Florida law enforcement, DeSantis said the camp may have served its purpose.

“We were never going to make that a permanent facility,” DeSantis said.

DeSantis’ office referred requests for more information to the Florida Division of Emergency Management (FDEM), which did not respond to inquiries.

Advocacy groups were still trying to confirm whether there were detainees left at the camp, but Noelle Damico, director of social justice for The Workers Circle, a progressive Jewish advocacy group, says the population significantly declined recently.

“We heard from detainees that as of Sunday there were 60 people spread across five cages,” Damico says, “and of course that’s a far cry from earlier this year, when there were upwards of 1,400.”

The quiet drawdown of Alligator Alcatraz stands in contrast to its bombastic grand opening last July, during hurricane season, which included a tour by President Donald Trump and custom merchandise. The detention camp was also a blueprint for a new, legally dubious model of state-run immigration detention centers. However, the site has been dogged by constant allegations of inhumane conditions, brutality, excessively high operating costs, environmental violations, secrecy, and lack of due process.

Civil rights and immigrant aid groups openly doubted ICE’s justification for emptying the detention camp.

“They opened this facility during hurricane season last year,” Damico says. “To say that they’re moving them for the safety of these people that have been detained—the same people that they have tortured, that they have not given sufficient food to, that they have kept in unsanitary conditions, that they have pepper-bombed, that they have shackled, that they have beaten—to suddenly have this great concern for their well-being defies credulity, frankly.”

One former Alligator Alcatraz detainee says in an interview with Reason that medical neglect was a constant problem at the detention camp. Luis Miguel Rubiano, a 29-year-old Venezuelan national with a pending asylum claim, spent six days in Alligator Alcatraz in January after being arrested by ICE while on his way to work at an Orlando-area auto parts warehouse.

Although he was also detained at an ICE field office, a county jail, and another DHS detention center, Rubiano says “Alligator Alcatraz was the worst place for [medical] treatment.”

“They didn’t have the tools,” Rubiano says. “They always told us to wait for the next day or something like that. They were supposed to take my blood pressure, but the machine was without batteries for like two days straight.”

In addition to human rights complaints, Florida’s choice of location for the detention center outraged conservation groups and local Native American tribes, who were appalled at the degradation of one of Florida’s most treasured wildlife habitats.

In a press conference Wednesday, environmental groups vowed to continue litigating a lawsuit filed last year alleging that the hasty construction of the detention camp violated environmental permitting laws and is damaging sensitive wetlands.

“This administration never acknowledges when they have made an error,” Paul Schwiep, an attorney at the law firm Coffee Burlington, said. “They don’t accept responsibility for their mistakes. In this case they built a Soviet gulag in the Everglades without pulling one permit, one environmental review, and now they hope they can slink away in the middle of the night without explaining what they did.”

Environmentalists won a temporary victory last August when a federal judge issued a preliminary injunction halting operations at the camp, but that injunction was later vacated on appeal. The lawsuit is scheduled to continue proceeding toward trial later this month in a federal courthouse in Miami.

Friends of the Everglades also pried loose records in court showing that Alligator Alcatraz is exorbitantly expensive. State documents estimated that the “burn rate” to hold 500 detainees there was $1.2 million a day. The FDEM requested a $1.49 billion grant from the federal government to offset the costs of running the facility.

“The expense to taxpayers that has been borne as a result is inexcusable, particularly since it’s being spent at the expense of the Everglades,” Eve Samples, executive director of Friends of the Everglades, said.

The Florida Phoenix reported Wednesday that Florida still owes at least $603 million in immigration enforcement contracts to 27 companies.

At Wednesday’s virtual press conference, one of the speakers, Jessica Namath, the founder of Floridians for Public Lands, called in from outside the entrance of Alligator Alcatraz.

Namath said she’d seen about 40 to 50 fewer vehicles going in and out of the facility than normal, but there was still the usual procession of trucks and transport buses. A Florida Highway Patrol car was still stationed outside to shoo away protesters and tourists.

“It still looks like business as usual here,” Namath said.

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By taking equity stakes in more than a dozen private businesses, the Trump administration has stretched executive power to new heights—and now Congress is working to ensure that future presidents get the same opportunity.

The Senate’s version of the 2027 National Defense Authorization Act includes a provision to create a new slush fund within the U.S. Treasury for the purpose of buying stakes in more private businesses. The Pentagon would be able to tap the proposed Defense Equity Investment Account to make investments of up to $500 million in private companies involved in the production of “critical minerals, materials, and chemicals” or batteries.

The provision, which is buried within the 1,500-word bill drafted this week by the Senate Armed Services Committee, would allow the “direct or indirect purchase, acquisition, or commitment of funds by the Department of Defense in exchange for an ownership interest, convertible interest, warrant, revenue-sharing instrument, or other similar financial instrument in a non-Federal entity.”

Besides the $500 million cap on those investments, the government is also forbidden from taking more than a 50 percent ownership stake in any private business. Other than that, however, there seem to be few limitations or guardrails on how the new equity account could be used.

During a closed-door session last week, the Senate Armed Services Committee reportedly voted down an amendment that would have prohibited the Trump administration from taking equity stakes in businesses with ties to the president, his family members, and members of his cabinet.

Some of the Trump administration’s investment decisions have seemingly benefited those close to Trump. Vulcan Elements, which makes magnets out of rare earth elements, got a $620 million loan from the Pentagon’s Office of Strategic Capital. Donald Trump Jr. is a partner at the company.

Sen. Elissa Slotkin (D–Mich.) told NOTUS that Republicans rejected that proposal after expressing worries about how Trump would react. “Over and over we heard in the NDAA markup a number of my Republican colleagues express concern that they didn’t want to insult the president, they didn’t want to send a negative message to the president, they didn’t want to offend the president, or they were scared of his reaction,” Slotkin said.

It would be a good idea for lawmakers to prevent the president from using a new Pentagon slush fund to enrich his relatives and allies. But it would be better to avoid creating this account in the first place. Congress should not be codifying Trump’s socialist behavior and should not be making it easier (and legal) for future presidents to follow suit.

“If Washington wants more domestic or allied production of minerals, magnets, chemicals, or batteries, it has tools that do not require making taxpayers shareholders,” like removing permitting and regulatory hurdles or following the regular government procurement process, writes Tad DeHaven, a policy analyst at the Cato Institute. “What it shouldn’t do is pick favored companies and make the federal government an investor, customer, regulator, and political patron.”

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Today, in United States v. Hemani, the Supreme Court ruled that the Second Amendment prevents the federal government from banning gun ownership by marijuana users. Unusually for a Second Amendment case, the ruling is unanimous. It’s a significant application and extension of the Court’s 2022 ruling in the 2022 Bruen case, which sought to put more meat on the bones of Second Amendment rights by establishing a “history and tradition” test for reviewing gun regulations.  It’s a great moment for those of us who both support strong Second Amendment rights and hate the War on Drugs (elsewhere, I have argued that most of the federal War on Drugs is itself unconstitutional). The ruling also features a joint concurring opinion by Justice Alito joined by Justice Kagan – a rarely seen combination.

Justice Neil Gorsuch wrote the opinion for the Court, joined by seven justices in all. Here’s an excerpt:

To determine when the government infringes the Second Amendment, we begin by asking whether the Amendment’s terms cover the conduct in question. Bruen, 597 U. S., at 24. If so, the Constitution “presumptively” protects it. Ibid. To overcome that presumption, the government then bears the burden of showing its regulatory efforts are “consistent with the Nation’s historical tradition of firearm regulation.”  Ibid….

§922(g)(3)’s unlawful user provision burdens conduct presumptively protected by the Second Amendment. After all, that statute bans a class of people including Mr. Hemani
from possessing essentially any firearm for any purpose. As a result, the government acknowledges, it has a burden to carry….

To meet its burden of showing a law like that is consistent with the Nation’s tradition of firearm regulation, the government relies on an analogy to what it calls “habitual drunkard” laws. These laws, the government submits, enjoy deep roots in the country’s history and are “relevantly similar” to the regulation it wishes to enforce against Mr.
Hemani….

We disagree. We appreciate that drugs and guns can sometimes make for a dangerous mix. We appreciate, too, that the government’s effort to analogize a modern statute
addressing drug use to historical laws must be approached with a sensitivity to the fact that many drugs well known today were unknown in early America. As we have put it,
the Second Amendment “can, and must, apply to circumstances beyond those the Founders specifically anticipated.” Bruen, 597 U. S., at 28. But, even taking all that
into account, the government cannot carry the burden it has set for itself. We decide cases “based on the historical record” and arguments “compiled by the parties” before us. Id., at 26, n. 6. And the habitual drunkard laws on which the government relies here differ dramatically from §922(g)(3)’s unlawful user provision on every single metric the government invites us to consider: They targeted different kinds of people, did so for different purposes, and operated in different ways. Whether any one of these problems taken in isolation would prove fatal to the government’s cause, we need not decide. Taken cumulatively, we hold, they certainly do. And, apart from pointing to habitual drunkard laws, the government has not even attempted to prove that any other specific historical principle might justify its prosecution in this case….

Gorsuch goes on to point out that habitual drunkards are fundamentally different from people who merely drink alcohol – or use marijuana – on a regular basis:

Had habitual drunkard laws applied to those who simply drank regularly, many notable early Americans could have faced trouble. John Adams took “a tankard of hard cider”
with his “daily breakfast….”. Some say James Madison “consumed a pint of whiskey daily.” D. Okrent, Last Call: The Rise and Fall of Prohibition 8 (2010)…. George Washington often drank three glasses of madeira in the evening—”not enough to be considered a heavy drinker in his day.” Id., at 5. Thomas Jefferson enjoyed “3 or 4 glasses [of wine] at dinner….”

There was, in short, a “culture of copious drinking” in early America. D. Korostyshevsky, Incapable of Managing His Estate: Habitual Drunkards and the Expansion of Guardianship in the Nineteenth-Century United States, 43 Law & Hist. Rev. 795, 800 (2025)….

Given all this, it seems the government’s historical laws targeted habitual drunkards not merely because they regularly used intoxicants, or even sometimes used them to excess. Instead, those laws focused on habitual drunkards because their drinking rendered them practically incapacitated and incapable of managing their affairs….

The law [at issue in this case], the government insists, does not require it to show that a particular individual is regularly incapacitated, much less incapable of conducting his
affairs or a threat to himself or others. Put simply, on the government’s telling, §922(g)(3) sweeps in large numbers of people without regard to whether their substance use has the kind of incapacitating effect on them that historical habitual drunkard laws normally required. This case illustrates the disconnect. The government considers Mr. Hemani an unlawful user of a controlled substance because he admits to using marijuana about every other day. But how much marijuana does Mr. Hemani use, in what potency, and to what effect? Is he routinely unable to manage his affairs, a risk to himself or his family?….. We do not know and, the government says, it doesn’t matter…

Importantly, the Court’s reasoning isn’t limited to disarming marijuana users alone. Justice Gorsuch emphasizes that one problem with the government’s position is that it would allow denying gun rights to anyone who uses a drug in a way restricted by federal law, regardless of whether the user becomes dangerously incapacitated or not:

Nor does the government’s theory stop at Mr. Hemani. It extends equally to a husband who regularly takes his wife’s prescription Ambien to sleep and a college student who routinely uses a friend’s Adderall to cram for exams. Id., at 56–58. The drug involved makes no difference. Nor, again, does it matter how much an individual uses or the effects it has on him. That someone regularly uses any substance found on any of the CSA’s five schedules for anything other than its “prescribed purpose” is enough…. Without more, the government asks us to analogize all such persons to habitual drunkards. To state the analogy is to expose its deficiency….

[W]e do not question that sometimes an individual’s unlawful use of marijuana (or any other controlled substance) may render him a danger to others. But, again, the government disclaims the need to show anything like that in this case. Instead, it asks us to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing. All based on little more than its current say-so, one at odds with its own regulatory actions. And affording the government that
kind of “broad power to designate any group as dangerous and thereby disqualify its members from having a gun” would risk allowing it to “quickly swallow” the Second
Amendment. Kanter v. Barr, 919 F. 3d 437, 465 (CA7 2019)(Barrett, J., dissenting).

This suggests that mandated disarmament of other types of users of illegal or restricted drugs is also unconstitutional, except in cases where the users are incapacitated or dangerous in ways similar to “habitual drunkards.”

Gorsuch does stress that the ruling is in many respects…a narrow one.” It does not definitively resolve the issue of how to address alls laws disarming users of various illegal or restricted drugs. Nor does it deal with situations where the law bans possession of a gun while the user is actually intoxicated or high. But the Court’s reasoning nonetheless clearly sweeps beyond the specific circumstance of marijuana use.

In his concurring opinion, Justice Alito, joined by Kagan, applies slightly different reasoning:

Although I agree with the Court on [various key] points, I would affirm on a different ground from those on which the majority relies. As the opinion of the Court explains, the habitual-drunkard laws that the Government cites did not allowofficials to disarm all those who “regularly used intoxicants,” or even just those who “sometimes used them to excess….”  These laws instead threatened disarmament only for those whose use of an intoxicant “rendered them practically incapacitated and incapable of managing
their affairs….”

The mismatch between the Government’s historical analogues and the theory on which the Government defends the constitutionality of §922(g)(3) as applied to respondent is
clear. All that we know about respondent’s marijuana use is that he used the drug about every other day. We do not know how much he used, the strength of the marijuana he used, how many times he used it on the days in question, the time of day when he used it, where he used it, or the degree to which this use affected his ability to exercise judgment and perform daily tasks responsibly….

Marijuana consumption is increasingly common in this country. Many States have legalized its use and sale, and although possession of the drug remains a federal crime,
very few persons are convicted of that offense each year. The Government has largely tolerated the production and sale of marijuana when done in accord with state law, and it has allowed a multi-billion-dollar marijuana business to develop….

In these circumstances, marijuana use today is like alcohol use at the founding. It is widespread and increasingly considered socially acceptable in many quarters. And from
a practical standpoint, law enforcement widely tolerates the use of marijuana.
These similarities underscore the deficiency of the Government’s analogues. To succeed, the Government would need to identify a regulatory principle that justified disarmament of persons who are relevantly similar to the occasional marijuana user. But whereas the Government’s analogues allowed disarmament only of those whose extreme use of an intoxicant (alcohol) incapacitated them habitually, §922(g)(3) as applied to respondent allows disarmament of those who do no more than “regularly us[e]” a similar intoxicant (marijuana) unlawfully….

I agree with both the majority and with Alito’s uncharacteristically civil-libertarian concurrence.

In a concurring opinion joined by Justice Sotomayor, Justice Ketanji Brown Jackson agrees that the Court rightly applied the Bruen “history and tradition” framework, but argues that that framework is itself badly flawed, relying on dubious and difficult-to-apply historical analogies. She argues, instead, for applying “means-ends scrutiny.” I think she’s largely right about that. But the solution is not to weaken judicial protection for Second Amendment rights to but use a different approach to enforcing them. On that point, I agree with much of Randy Barnett and Nelson Lund’s critique of Bruen, published soon after the ruling:

[H]istorical analogies will frequently provide insufficient guidance, particularly for novel gun control laws that address modern problems. Looking at whether individuals could have knives and guns on eighteenth-century ships, for instance, does not provide a persuasive reason either to uphold or invalidate a modern regulation prohibiting
weapons on commercial aircraft. That law is designed to prevent aircraft hijackings, a danger quite unlike the threat of mutinies in previous centuries.

What’s the alternative? Rather than relying on specious historical traditions, courts could evaluate gun laws against the purpose of protecting the right to keep and bear arms: facilitating the exercise of the fundamental right of personal and collective self-defense. In particular, judges could require the government to prove that a challenged restriction of the right to keep or bear arms does not vitiate the ability of Americans to use firearms to defend themselves against violent threats that the government cannot or will not prevent. In this way, judges can distinguish regulations that reasonably regulate this fundamental right from those that unreasonably obstruct it.

Better to start with the text and purpose of the Amendment and apply that to the facts of particular gun regulations, than the reverse! And the Barnett-Lund approach strikes me as compatible with Jackson’s advocacy of “means-ends scrutiny,” though I’m not sure either they or she would agree. Courts should consider whether the purpose and operation of the law in question is incompatible with the rights protected by the Second Amendment, and – if the purpose is permissible – whether the means used nonetheless unduly “obstruct” the right to bear arms.

Finally, Justice Clarence Thomas has a concurring opinion arguing that the law in question not only runs afoul of the Second Amendment, but also goes beyond Congress’s authority under its power to regulate interstate commerce. The Commerce Clause does not authorize Congress to criminalize  intrastate possession of guns “solely on the ground
that they crossed state lines at some point in the past.”  I agree! Congress may only restrict the interstate sale and transportation of goods, not their mere intrastate use and possession. And this point, as Thomas has recognized in past opinions, applies to the War on Drugs, as well.

In sum, not only is this an excellent decision, but it’s a rare case where we have four different opinions by various justices, all of which are largely right. I wish there were more rulings like this one!

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Until today, the federal law that prohibits “unlawful users” of controlled substances from possessing a gun was generally understood to cover all unlawful users of marijuana. But in a landmark decision issued this morning, the U.S. Supreme Court found the federal prosecution of a gun-possessing marijuana user to be in violation of that man’s Second Amendment rights.

The decision came in the case of United States v. Hemani. “We do not question that sometimes an individual’s unlawful use of marijuana (or any other controlled substance) may render him a danger to others,” observed the majority opinion of Justice Neil Gorsuch. But here the government “asks us to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing.”

And that was simply too much to ask of the Court. To allow “the government that kind of ‘broad power to designate any group as dangerous and thereby disqualify its members from having a gun,'” Gorsuch wrote, “would risk allowing it to ‘quickly swallow’ the Second Amendment.”

Gorsuch was equally dismissive of the government’s argument that historical laws regulating the conduct of “habitual drunkards” could form a justification for this sort of modern gun control prosecution. “The habitual drunkard laws on which the government relies here differ dramatically from [the federal] unlawful user provision on every single metric the government invites us to consider,” Gorsuch wrote. “They targeted different kinds of people, did so for different purposes, and operated in different ways. Whether any one of these problems taken in isolation would prove fatal to the government’s cause, we need not decide. Taken cumulatively, we hold, they certainly do.” And, Gorsuch added, “apart from pointing to habitual drunkard laws, the government has not even attempted to prove that any other specific historical principle might justify its prosecution in this case.”

I expected the federal government to lose this case, given the current Supreme Court’s generally hawkish stance on the Second Amendment. But I am somewhat surprised by just how overwhelming the government’s loss turned out to be. Gorsuch’s majority opinion was joined in full by Chief Justice John Roberts and Justices Clarence Thomas, Sonia Sotomayor, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson. Meanwhile, Justice Samuel Alito, joined by Justice Elena Kagan (an unusual pairing to say the least), wrote separately in concurrence to say that they would have ruled for Hemani “on a different ground from those on which the majority relies.”

In short, all nine justices agreed that the federal government’s prosecution of this particular nonviolent marijuana user for possessing a gun violated the constitutional right to keep and bear arms. To call this decision a huge win for the Second Amendment would be an understatement.

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This evening, I will be speaking to students with The Fund for American Studies. As is my usual custom with June trips to DC, I went to the Court for opinion hand downs. And, as per my usual custom, I rolled up to First Street around 9:20 a.m. Usually, the bar section is completely empty in June, but today was different. The officer at the front gate said there were more than 200 people seeking bar admissions today, and that I might not even get a seat. That was something I hadn’t experienced before.

I was asked to wait in the cafeteria to see how many empty seats there would be in the bar section. Also waiting was John Coghlan of Torridon Law, who was there to see his sister get sworn in. (Fun fact: John was the first lawyer to argue in person at the Court after the COVID shutdown on October 4, 2021.) Thankfully, we were let upstairs shortly before 10:00. Only three bar members would be allowed in.

I was seated just as Justice Gorsuch began announcing the majority opinion in Hemani. That meant no opinions from Justices Jackson, Barrett, or Kavanaugh. As Gorsuch read the summary of the facts, it became clear he wasn’t buying the government’s “habitual” drunkard argument. He dropped a few laugh lines about how much John Adams and James Madison drank. The Fifth Circuit would be affirmed here. But not in the next case.

Justice Kagan had the opinion of the Court for Hunter v. United States. This case concerned when a defendant was not bound by an appeal waiver. Kagan said that the government proposed an unforgiving standard, the Fifth Circuit adopted a middle standard, and other circuits adopted a forgiving standard. It was obvious who was going to win here. The Fifth Circuit was reversed.

Justice Sotomayor was next with T.M. v. University of Maryland. I had written about this case before. Elizabeth Prelogar was a last minute substitute for Kannon Shanmugam. Respondent was represented by Lisa Blatt. Justice Sotomayor made clear that the Court was not going to overrule the Rooker-Feldman doctrine, as Prelogar had asked for. She also rejected Prelogar’s backup argument. But to my surprise, the opinion split 5-4 in an unusual fashion. The majority had Sotomayor, Thomas, Alito, Kavanaugh, and Jackson. Barrett dissented, joined by Roberts, Kagan, and Gorsuch. I will note that Justice Thomas cited the Heritage Guide to the Constitution (Third Edition).

In 1780, the Confederation Congress created a court under that authority whose jurisdiction allowed it to “hear new evidence without deference to state courts'” legal conclusions. W. Pryor, The Appellate Jurisdiction Clause, in The Heritage Guide to the Constitution 499 (3d ed. 2025) (Pryor)

I hope this is the first of many Supreme Court citations for this important book. Whatever baggage the Heritage brand may have should not override the amazing scholarship in the book from Judge Pryor and others.

I did notice the Justices seemed tense. They weren’t talking to each other. I didn’t see them laughing or joking around. Justice Alito was closely reading something. I thought he had an opinion to deliver, but it was apparently something else. Chief Justice Roberts was staring up at the ceiling for an extended period of time while Justice Sotomayor was reading. Justice Barrett was just looking forward intently. The only moment of levity came when Justice Gorsuch joked about our alcoholic founders. These vibes do not augur for a pleasant end-of-term.

After Sotomayor finished reading her opinion, the Chief Justice asked the clerk to begin the admissions process. Most of the members of the press box left at that point, somewhat disappointed at the lack of blockbusters. For a Thursday in June, this was a slow day. And given the federal holiday tomorrow, there are no more opinions for this week.

I stepped out of the Court to grab a copy of the bench opinions. It had been some time since I waited for a paper copy, and didn’t realize the binding had changed. Two staples are visible on the spine. Mark Walsh, whose father was in the printing business, told me it is called a “Perfect Binding.”

Mark also told me that there would be no opinions on Monday, and the next batch is scheduled for Tuesday. There is also a scheduled hand down for Thursday. So next week will likely add a Wednesday or Friday session. The consensus from several reporters I spoke with is that the term will end on June 30 or July 1.

A few other miscellaneous notes as I traveled around town.

Yesterday, out of curiosity, I walked past the White House to see the renovated reflecting pool. It is difficult to convey how large the UFC Claw was. It towers over the White House. It can be seen from both Pennsylvania and Constitution Avenue.

The reflecting pool was green. It was filled with algae and other growth. I did not see American Flag Blue.

On the way back from the Court, I passed the “86-47” tent outside the D.C. Circuit Court House. Free Speech in action.

One last point. I have always been bothered by the “Man Controlling Trade” statue outside of the FTC building. This sculpture was made in 1942 to symbolize how the federal government controls the unbridled energy of the market. That certainly would have been how the Roosevelt administration viewed the power of the federal government. But it makes little sense for the present moment. Shouldn’t the man let the horse run free? Maybe this is another item of D.C. architecture that warrants a change.

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A new Colorado law has raised the hackles of a coalition of gun owners in the state, leading them to challenge its constitutionality in federal court.

Signed into law on June 2 by Colorado Democratic Gov. Jared Polis, the Requirements for Firearms Dealers Act requires all gun sellers in the state to allow any “duly authorized peace officer” to inspect their sales records “at all times.”

The bill follows in the footsteps of 11 other states and Washington, D.C., by extending the state’s record-keeping requirements for firearms dealers to all retail transactions, including transfers. Dealers will be required to note the customer’s name, age, and address, as well as the firearm’s serial number, letters, make, and caliber. Failure to comply could result in a fine of up to $75,000, the loss of a dealer’s license, and up to a year in jail. 

Gun owners in the state are pushing back against this overreach. Ten days after Polis signed the bill into law, three firearms dealers and two firearms associations filed a joint civil suit in the U.S. District Court for the District of Colorado, arguing that the bill is a “warrantless-inspection scheme for firearms dealers” that violates the Fourth Amendment because it includes no stipulations for warrants or probable cause and no restrictions on time or frequency.

Colorado’s law would make it easier for law enforcement to engage in fishing expeditions. Under the law, a Colorado police officer could presumably demand that a dealer provide records of firearms sales for the last month, with no mention of a crime being committed or a suspect in mind. While the bill does prohibit law enforcement from creating or maintaining a firearms registry, that provision seems moot if firearms dealers are themselves forced to maintain the registry for cops. 

While the court challenge is ongoing, it’s difficult to see how Colorado’s law complies with the Supreme Court’s precedents on warrantless searches. 

In New York v. Burger (1987), the Court ruled that a warrantless search of a “closely regulated” industry violates the Fourth Amendment unless it satisfies three criteria: the state must have a substantial interest in regulating the industry; the warrantless inspections must directly serve that interest, be necessary for the regulatory scheme; and the statute must offer a constitutionally adequate warrant substitute, such as notification and limits on “time, place, and scope,” to “impose appropriate restraints” on an officer’s discretion. 

Colorado’s law might satisfy the first criterion. But it appears to fall short of the other two entirely, especially since the law is broad enough to allow sheriffs and campus security alike to inspect the records of any firearms dealer in the state.

Even when the law permits the government to inspect a business without a warrant—an administrative search—the Supreme Court ruled in Los Angeles v. Patel (2015) that the subject must be afforded a review by a “neutral decisionmaker” for the search to be constitutional. Colorado law does not provide firearms dealers with an opportunity for such a review before inspection.

Aside from the record-keeping provisions, the bill adds new administrative burdens for firearms dealers by requiring businesses in the state to provide the Department of Revenue with a “comprehensive security plan.” It also tasks the department with adopting rules on acceptable security measures that dealers must comply with. Those requirements will go into effect in October 2027.

State Sen. Cathy Kipp (D–Fort Collins), a cosponsor of the bill, told Complete Colorado the new law “builds on a new bureaucracy established in 2024” to stop “preventable shooting deaths” and reduce gun violence. But another outcome is far more likely: treating gun owners and firearm dealers like de facto criminals.

Colorado lawmakers have created an environment ripe for confrontation between law enforcement and legally armed Americans, all while violating Coloradans’ right to privacy.

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Today the Supreme Court decided T.M. v. University of Maryland Medical System Corp., a case concerning the application of the Rooker-Feldman doctrine, under which federal district court review of state court decisions is generally barred.

The justices split 5-4 on the application of the doctrine here. Justice Sotomayor wrote for the Court. She summarized the issue in T.M. this way:

Under what has become known as the Rooker-Feldman doctrine, federal district courts lack jurisdiction over “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U. S. 280, 284 (2005). This case asks whether this rule bars suit when the state court judgment at issue is subject to further review in state appellate proceedings. A straightforward application of the logic and reasoning underlying Rooker-Feldman leads to one conclusion: It does. Because this suit falls within the narrow doctrine’s limits, the Court of Appeals for the Fourth Circuit properly affirmed its dismissal.

The line-up this decision produced is what is particularly interesting. Justice Sotomayor was joined by Justices Thomas, Alito, Kavanaugh, and Jackson. (Justice Thomas also wrote a separate concurrence, defending Rooker “as an original matter.”)

Justice Barrett dissented, joined by the Chief Justice and Justices Kagan and Gorsuch. Her opinion begins:

Twenty years ago, this Court held that the Rooker-Feldman doctrine is “confined” to the procedural circumstances of the two cases from which the doctrine draws its name. Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U. S. 280, 284, 291 (2005); see Rooker v. Fidelity Trust Co., 263 U. S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U. S. 462 (1983). In “both cases,” we emphasized, the federal action was brought “after the state proceedings ended.” Exxon, 544 U. S., at 291. Seven Courts of Appeals took us at our word, refusing to apply Rooker-Feldman when the underlying state action remained pending. They were right to hold the line. Because the Court has chosen to relax it, I respectfully dissent.

Her dissent concludes:

The upshot of today’s decision is that the Court has muddied waters that were hardly clear to begin with. That is unfortunate, because there was a better path available: treating Rooker-Feldman as “the §1257 Rule.” VanderKodde, 951 F. 3d, at 409 (Sutton, J., concurring). Doing so would have been both clearer and more faithful to Exxon.

Still, the news is not all bad. Although the Court expands Rooker-Feldman beyond Exxon‘s line, it repeatedly emphasizes that the doctrine is “narrow.” See ante, at 1, 7, 8, 18. Courts should not lose sight of that message. In the end, Rooker-Feldman has been given an inch—it should not be allowed to take a mile.

T.M. was not the only decision today to produce an interesting lineup. The Court was unanimous in the judgment in United States v. Hemani–a potentially important Second Amendment case–but split on the rationale. Justice Gorsuch wrote for the Court. Justice Alito wrote separately, only concurring in the judgment and was joined by Justice Kagan. (Yes, you read that correctly.) Justices Thomas and Jackson also authored concurring opinions.

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As the 250th anniversary of the signing of the Declaration of Independence nears, it looks like Americans overwhelmingly approve of their country’s cardinal principles.

That’s the top-line finding from a recent survey conducted by the American Enterprise Institute (AEI) about the legacy of America’s founding. While its results did reflect a generational divide—baby boomers were much friendlier to the Founding than Gen Z—73 percent of the younger generation still agreed that “the founders deserve respect…for how they set up the United States.” And 74 percent of Gen Z respondents agreed that “studying the political principles of the founding fathers can help inform our decisions today.”

Support for Founding principles was also impressively robust across party lines: 92 percent of Republicans and 77 percent of Democrats said that it was “more important than ever to teach all kids the history of the founding fathers.”

But though the sentiment is generally popular, its specific implementations tend to be rather controversial. In Florida, a recently devised A.P. U.S. History alternative, which casts the Founding and its Enlightenment-influenced classical liberalism in a rosier light, has been characterized by the media as an “anti-woke” reaction and a specifically “conservative” reform. 

The AEI survey also revealed surprisingly broad support for capitalism. Among 5,306 respondents, 82 percent said it was “very” or “somewhat important” to teach about “the benefit of free market capitalism” in high schools. Only 4 percent said that it should not be taught.

The result stands in stark contrast with other recent polling on the popularity of capitalism. For instance, a Gallup survey from last September found that just 54 percent of Americans have a positive opinion of the economic system, down from 61 percent in 2010.

There have been other prominent indications that Americans’ faith in the free market could be slipping. New York City, for instance, elected a self-avowed socialist for mayor, who used his inauguration speech to decry “the frigidity of rugged individualism.” (Washington, D.C., may soon follow in NYC’s footsteps.)

Still, not all of the AEI survey results tell a story of Americans eager to “accentuat[e] positive views of America.” Among parents surveyed in 1998, 50 percent said they would be upset if their children’s teacher “constantly criticized America’s economic and political system”—this year, only 32 percent agreed.

But beneath the malaise, it would seem that Americans are fundamentally committed to the values and freedoms of the Founding. “Much has changed since the late 1990s,” the AEI report reads, but “still, most Americans in 2026 report that they are familiar with our founding documents and endorse long-standing civic ideals such as freedom of speech, freedom of religion, and equal opportunity.”

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