Govt's final point really seems to highlight the problem with Bruen, arguing against habitual drunkard requiring how often is enough for habitual, how much consumption is equivalent to drunkard, how much danger must you pose
Yes, this is exactly why Bruen is--in the words of Dobbs--unworkable
Sotomayor: Alito's concern over jury determinations is pointless and dumb because the statute requires it for prosecution and conviction, right?
I think Alito has asked essentially the same question over and over and over again for the last 20 minutes
Hemani: the principle from the historical distinction between drinkers and habitual drunkards is that govt didn't want to sweep up any and all regular users
KBJ: but isn't your point that even if Congress had done that assessment for danger with regard to each substance and guns, Bruen says that does not matter because it is about historical analogs not simply deferring to Congressional determinations
(I cannot wait to read KBJ's upcoming 2A opinions)
Sotomayor: govt said dangerousness relative to guns was not made for each substance, so doesn't that give away the game?
Hemani: this is why individual assessments are needed
Hemani repeatedly raising civil commitment as a similar law that is facially valid but requires individual determination that could, in some circumstances, be invalid
Hemani: principle underlying habitual drunkards (losing self-control, unable to care for themselves, etc) should be applied to all drugs and some might be similar and some might not
Hemani's atty now up, distinguishing between historical approach to people who drank regularly and people who qualified as habitual drunkards
KBJ is concerned Bruen & Rahimi allow inconsistent results--pointing out the govt was just there arguing against Hawaii's concealed carry restriction but for this restriction with historical laws that seem unrelated in each case
KBJ: your principle is so general (dangerous people could be disarmed) that it boils back down to what Congress determines qualifies someone as dangerous. And if we're not supposed to simply trust what Congress says, then how do we evaluate without means-ends contemporary analysis?
KBJ's disdain for the Bruen test is so apparent, but it comes through what seems to be a genuine effort to figure out what the hell it requires
ACB then drops a NYT article reference to dangers of THC, so yeah, she reads the news
ACB seems be searching for the principle from the historical laws to apply today (based on Rahimi) and is asking whether it is the risk of violence and dangerous behavior? Or is it the illegality?
Justice I like beer...I mean Kavanaugh wants more elaboration on why alcohol is different than marijuana
Gorsuch: you're saying "unlawful user" in statute means habitual, but then why have the second part about "addict"
Govt: they can overlap, but also could have an unlawful/habitual user that is not necessarily addicted
Kagan asks about any difference between public safety and public order, especially in regard to historical laws
Govt says civil commitment was about safety and vagrancies mroe about order
Did the govt just talk about gateway drugs? I feel like I'm back in elementary school
Make DARE great again?
Govt makes clear that casual bar drinkers are safe but regular use of marijuana at parties are not
This has quickly devolved into the age old booze v. weed argument
Finally Alito speaks up to go over when various drugs were "created" and asks about the difference between booze and drugs historically and culturally, but, surprisingly, did not go as far back as turning water to wine or consuming the blood of Christ
Most of the argument so far: what does Bruen mean? How do Bruen and Rahimi make sense together? Why are we doing this to ourselves? How could we ever know what founders thought about substance use and how to apply it today when they said 8 whiskeys was not habitual or dangerous?
Govt argues using habitual as proxy for addict is sufficient but KBJ says Bruen test doesn't allow this sort of assessment of and alteration of historical policy judgments of who was dangerous which was well beyond who the law is being applied to today
Govt raises Rahimi's use of historical laws for supporting categorical declarations of dangerousness
This makes me wonder whether the Court will use this case as an opportunity to alter Rahimi in any way
ACB: what about taking your partner's ambien? If this qualifies then the drug isn't what causes the danger because it is legal for the partner to take, so it must be the illegality that renders someone dangerous
So is a danger determination necessary to violate the law?
Govt says a gummy user every other night qualifies as habitual drug user but Gorsuch pushes on how they should consider weed is sort of legal and sort of illegal (his words)
Gorsuch seems to take a judgmental stance to founders drinking a pint of whiskey a day or those who drank 8 whiskeys a day, but failed to mention whether there was a big game and tailgate that day or that streaming options were unavailable for entertainment at the founding
Sotomayor gets at the fear for broad use, asking about homeless people, sleep drug users, smoking weed once a week, etc
Govt argues the law is tailored but it might be difficult to convince enough of the justices that this is true
