Gorsuch questions limits on gun rights for drug users, says Founding Fathers were all heavy drinkers

During oral arguments at the Supreme Court on Monday regarding a federal law that makes it a crime for users of illegal drugs to possess guns, Justice Neil Gorsuch appeared skeptical of the law, questioning how the law would define drug use, specifically heavy drug use. He cited early American laws regarding "habitual drunkards," and noted that by contemporary standards, our Founding Fathers were all heavy drinkers.

He said that one could ask whether the defendant qualifies as a habitual user, stating that the American Temperance Society "back in the day" said that "eight shots of whiskey a day only made you an occasional drunkard." The case before the court involves 18 U.S.C. § 922(g)(3), which states that it is illegal for anyone "who is an unlawful user of or addicted to any controlled substance" to possess a firearm.

"We have to remember the founding era. If you want to invoke the founding era, to be a habitual drunkard, you had to do double that, okay? John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn’t much of a user of alcohol, he only had three or four glasses of wine a night, okay?"

"Are they all habitual drunkards who would be properly disarmed for life under your theory?" Gorsuch asked Sarah Harris, the US Principal Deputy Solicitor General, who replied, "no."

"Okay, if they’re not, then what do we know about Mr. Hemani? We know he uses marijuana a few times—about every other day. That’s all we have in the record, right? … So we don’t even know the quantity of how much he uses every other day. What if he took one gummy bear with a medical prescription in Colorado? Well, you may not even need a medical prescription. You don't even need that anymore, but let's say he had one to help him sleep every other day. Disarm him for life?"

Gorsuch later said that the government "has not been able to define what a 'user' is," adding that "it is said at various points that it's someone who's used any illegal drug in the past year," while the ATF "now wants to say a pattern" and Harris argued "for habitual which, of course, conflates the second half of the statute, which talks about an addict, which is different than a user, and an addict is a habitual user, it’s defined as so." 

Harris said the Court of Appeals is "uniform in adopting the same view as us, which is a habitual user in context," with Gorsuch saying that the ATF "disagrees."

"No, they absolutely do not," said Harris. 

Gorsuch later asked whether the hypothetical person who takes a marijuana gummy bear every night to help with sleep would count as a habitual user, to which Harris said "absolutely."