United States v. Hemani

Justice Thomas joined the majority opinion in full but wrote separately to raise a different constitutional concern: whether §922(g) exceeds Congress's power under the Commerce Clause. The statute makes it a federal crime for certain people to possess firearms that have at any point traveled in interstate commerce. Thomas argued that merely possessing a gun that once crossed state lines is not "economic activity" and does not substantially affect interstate commerce, meaning Congress lacks authority to criminalize it. He traced this argument through the Court's precedents in United States v. Lopez and United States v. Morrison, contending that lower courts have wrongly treated a prior statutory interpretation case (Scarborough v. United States) as settling the constitutional question.

Thomas also rejected the idea that §922(g)'s "jurisdictional hook"—its requirement that the firearm previously traveled in interstate commerce—is enough to save the statute. He argued that if Congress could regulate anything that ever crossed state lines, the Commerce Clause would become a limitless general police power with no meaningful boundaries. While acknowledging the issue was not directly presented in this case, Thomas urged the Court and lower courts to revisit §922(g)'s constitutionality under the Commerce Clause in a future case.

Justice Jackson, joined by Justice Sotomayor, joined the majority opinion but wrote separately to reiterate her view that the Court's historical-tradition framework from Bruen is fundamentally flawed and should eventually be replaced with means-end scrutiny. She argued that Bruen forces judges to act as historians, sifting through centuries-old evidence to answer contested questions, which leads to inconsistent results across courts. She noted that lower courts have reached starkly different conclusions about the same laws using the same historical test, illustrating its unworkability.

Jackson argued that means-end scrutiny—the approach courts used before Bruen—would be more rational and is already how courts evaluate restrictions on other constitutional rights like free speech and equal protection. Under that framework, courts would ask how severely a law burdens Second Amendment rights and whether the law is sufficiently tailored to the government's justification. She observed that even the majority's reasoning implicitly engaged in this kind of tailoring analysis by questioning whether §922(g)(3) actually serves its stated purpose. Jackson called on the Court to consider retiring the Bruen framework in a future case and returning to explicit means-end scrutiny.

Justice Sotomayor joined Justice Jackson's concurring opinion, which argued that the Bruen historical-tradition framework is unworkable and should eventually be replaced with means-end scrutiny—the approach courts use for other constitutional rights. She did not write separately but signaled her agreement that the current test forces judges into an unfamiliar role as historians and leaves no room to consider the real-world stakes of modern gun violence.

Justice Alito, joined by Justice Kagan, concurred in the judgment but would have decided the case on narrower grounds. He agreed that the government's historical analogues failed because habitual-drunkard laws targeted people whose extreme alcohol use left them practically incapacitated and unable to manage their affairs—a far cry from someone like Hemani who used marijuana every other day with no evidence of impairment. Alito emphasized that the government presented no information about how much marijuana Hemani used, its potency, or its effect on his judgment, making it impossible to analogize him to the habitual drunkards regulated by historical laws.

Alito drew a parallel between marijuana today and alcohol at the founding: both are widely used, increasingly socially accepted, and largely tolerated by law enforcement. He argued this similarity only highlighted the weakness of the government's position, since the historical laws it cited required extreme, incapacitating use before any liberty could be restricted. Alito would have affirmed solely on this analogical mismatch without reaching the majority's broader discussion, and he stressed that the decision should not cast doubt on other provisions of §922(g) that disarm felons or the mentally ill.