How the SCOTUS's Hemani Decision Helps 2A Win the Virginia AR-15 Fight

The U.S. Supreme Court decided United States v. Hemani, and by a vote of 9-0 it agreed with the U.S. Court of Appeals for the Fifth Circuit that 18 U.S.C. § 922(g)(3) cannot constitutionally be used to convict Ali Hemani, a marijuana user, for possessing a firearm. Hemani won, and that is good news. But those of us who litigate the Second Amendment care about something else: how the Court reached its result. The methodology is the asset here — and the methodology in Hemani is a gift to the lawyers in Virginia working to dismantle that state’s ban on AR-15s, AK-47s, and the magazines that feed them.

The Supreme Court’s Reasoning Is More Important Than the Result

I have argued this for years: when you read a Supreme Court opinion, separate the winning party from the holding and the reasoning. For the parties themselves, the person who walks out of the courthouse the winner is the main point.

However, the Court’s reasoning — the interpretive approach the Court commits itself to — is what governs the next case, and the case after that, and the case after that. U.S. Solicitor General D. John Sauer lost this one for the government. But the value of Hemani to the Second Amendment community is not in the loss column. It is in the pages where the Court explained why the government lost.

And the Court was explicit about where it looks for answers: “Our cases demand this attention to history, we have said, because the Second Amendment was designed to codify a ‘pre-existing’ individual right and guard against its later erosion by majoritarian legislation or judicial fiat.”

That sentence is the whole ballgame for Virginia. A state legislature banning the most common rifle in America is “majoritarian legislation,” and the Second Amendment exists precisely to guard against that kind of erosion.

Heller Survived, and Heller Is the Whole Ballgame in Virginia

Let’s look at what Hemani did not disturb. The Court reaffirmed that District of Columbia v. Heller, 554 U.S. 570 (2008), remains good law, citing it repeatedly. Even the concurrence by Justice Jackson, joined by Justice Sotomayor — the one urging the Court to abandon Bruen — does not argue to overrule Heller. That matters, because Heller is the controlling authority on when government may ban any form of arm, and the answer it gives is narrow: only weapons that are both “dangerous and unusual” fall outside the Second Amendment, while the arms Americans keep “in common use” for lawful purposes are protected.

The AR-style semi-automatic rifle is the most popular rifle in the country, and the same is true of the standard-capacity magazines Virginia has outlawed. Once a citizen shows that the plain text of the Second Amendment covers his conduct — keeping a rifle, keeping a magazine — the burden shifts to the government to prove a longstanding historical tradition justifying the ban. Virginia must show these arms are dangerous and unusual. It cannot. Ubiquity is the opposite of “unusual” and, by extension, of “dangerous and unusual.”

Dangerous People and Misusing Firearms, Not Mere Possession

Here is the thread that runs through every page of Hemani. The Court repeatedly tied lawful disarmament to firearm misuse and to posing a genuine physical danger — not to the mere fact of firearm possession. This is similar to the distinction between malum in se conduct (evil in itself) and malum prohibitum conduct (wrong only because a legislature said so). Disarming a convicted murderer is the former. Disarming a citizen for owning a common rifle is the latter.

While the government tried to bridge that gap by recasting drug users as a dangerous class of people, the Court was unconvinced, and it explained why at length:

The government faces more trouble yet when it comes to its next argument. It contends that §922(g)(3) disarms unlawful drug users to protect the public from “unusually dangerous” individuals who will “misuse … firearms” to commit “violent crime[s].” … And, the government submits, early American vagrancy, civil-commitment, and surety laws shared a similar purpose. But even spotting the government its assertion about §922(g)(3)‘s aims … the government misapprehends the purposes animating the historical analogues it invokes. Usually, they had little to do with protecting the public from categorically violent and unusually dangerous persons.

The problem starts with the statute itself, which borrows its scope from the drug schedules:

Drugs can be added to its schedules for a variety of reasons having little or nothing to do with their potential to induce violence … . Without question, some unlawful users of controlled substances can pose a risk of violence. But, by defining its scope through the CSA — a statute animated by a variety of other concerns — it is far from obvious that 18 U.S.C. §922(g)(3) confines its reach to those who are categorically and unusually dangerous.

Then the historical analogues fall apart. The surety-of-the-peace laws the government invoked were about a specific, demonstrated threat — not a person’s status or habits:

Those laws generally required an individual shown to pose a specific threat of violence to post a bond and pledge to “keep the peace.” … Some surety-of-the-peace laws, we held, were designed to prevent “violence” and “targeted the misuse of firearms,” much as §922(g)(8) seeks to do.

And the Court was careful to preserve the genuine danger cases. In footnote 6, citing United States v. Rahimi, 602 U.S. 680 (2024), it left intact only the laws that reach the truly dangerous:

Likewise, our conclusion today should not be taken to suggest “that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse.”

Those Americans who have been convicted of premeditated murder would fall within that category. Mere possession of a lawful, common firearm does not.

The Marijuana Lesson, Applied A Fortiori

The most useful passage for the AR-15 fight is the Court’s account of how thoroughly America has come to tolerate marijuana — and how the federal government itself drove that change. It started, the Court noted, with a deliberate decision not to enforce:

Years before that, too, the Department of Justice issued a memorandum directing federal prosecutors nationwide to curtail their enforcement efforts against marijuana users even while all marijuana products remained on Schedule I.

What followed left the government, in the Court’s word, “awkwardly positioned”:

Seismic changes followed that memorandum. While marijuana use largely remained unlawful under federal law, the number of federal offenders sentenced for possession of marijuana dwindled… . And most States responded by legalizing marijuana use to one degree or another … . As a result, some surveys suggest there now may be more adults in this country who regularly use marijuana than consume alcohol… . Whatever one thinks of these developments, the federal government has not just tolerated them; it helped fuel them. All of which leaves it awkwardly positioned to suggest that the millions of Americans who now regularly use marijuana are categorically and unusually dangerous.

Now apply the doctrine of a fortiori — what is true of the lesser is true of the greater. If the nation’s tolerance of marijuana makes it untenable to brand marijuana users as dangerous, then the nation’s far broader embrace of the AR-15 makes it more untenable still to brand its owners as dangerous. There is no federal ban on these rifles. Only a handful of outlier states ban them. And the Court has never been fond of outliers.

Virginia’s Turn

Couple that with McDonald v. City of Chicago, 561 U.S. 742 (2010), where Justice Alito’s plurality answered Justice Breyer by pointing to a national consensus for the right:

[W]e have never held that a provision of the Bill of Rights applies to the States only if there is a “popular consensus” that the right is fundamental, and we see no basis for such a rule. But in this case, as it turns out, there is evidence of such a consensus. An amicus brief submitted by 58 Members of the Senate and 251 Members of the House of Representatives urges us to hold that the right to keep and bear arms is fundamental. Another brief submitted by 38 States takes the same position.

The consensus that was sufficient to protect handguns against state and local bans in McDonald now protects the AR-style rifle in Virginia.

Virginia’s “assault firearms” ban asks courts to treat the most commonly owned rifle in America as unprotected by the Second Amendment. Hemani points in the opposite direction. If the Court will not let Washington imprison ordinary marijuana users who possess firearms, then it will not let Virginia disarm law-abiding citizens whose only offense is owning a rifle that is ubiquitous in America. The history of the future is yet to be written — but the methodology is now more on the side of Team 2A thanks to Hemani.