The Supreme Court’s unanimous decision in United States v. Hemani, 608 U.S. ___ (2026), has been covered mostly for what it holds: the government cannot strip a habitual marijuana user of his Second Amendment rights under 18 U.S.C. § 922(g)(3) without individualized proof of contemporaneous intoxication or dangerousness. That holding matters. But the far more consequential story is methodological, and it is one I have been pressing for years. Justice Neil Gorsuch’s opinion for a 9-0 Court decided a live constitutional question about a man’s right to keep and bear arms without a single trial, without a single testifying expert, and without a shred of cross-examination. That is not an accident. It is the pattern.
Legislative Facts, Not Adjudicative Facts
The distinction that resolves this is one most litigators never learn: the difference between adjudicative facts and legislative facts. Adjudicative facts concern the parties before the court — did this defendant fire the weapon, did this defendant violate the statute. Those facts require a trial, sworn testimony, and cross-examination. Legislative facts are different in kind. They are general facts about history, society, and the world that a court uses to determine the meaning and scope of the law itself — facts like why Congress passed the Gun Control Act of 1968 in the shadow of the assassinations of President Kennedy, Martin Luther King Jr., Malcolm X, and Robert Kennedy, or why the Battle of Lexington and Concord in April 1775 began over British attempts to seize colonial arms. Courts do not need a historian on the stand, subject to cross-examination, to establish either proposition. I have argued for years that Second Amendment questions are legislative-fact questions. Hemani proves it.
What the Hemani Opinion Actually Relied On
Nothing in the Hemani record came from a trial. The Court cited the Department of Justice memorandum of August 29, 2013 — the “Cole Memo,” issued under then–Deputy Attorney General James Cole — directing federal prosecutors to curtail marijuana enforcement. It cited the United States Sentencing Commission’s interactive data analyzer to track the decline in federal marijuana-possession sentences. It cited the National Conference of State Legislatures’ compilation showing roughly forty states, three territories, and the District of Columbia have legalized marijuana in some form. And it cited drug-policy researcher Jonathan P. Caulkins’s study on self-reported cannabis use from 1979 to 2022 to note that more American adults may now use marijuana regularly than consume alcohol. None of that is trial testimony. All of it is legislative fact, exactly the kind of material courts are entitled to consult when interpreting the Constitution.
An Unbroken Line From Heller to the Assault-Weapons Cases
Skeptics should run the tape. District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), decided the core scope of the right without a trial. Caetano v. Massachusetts, 577 U.S. 411 (2016), was resolved per curiam, with Justice Alito’s concurrence — joined by Justice Thomas — drawing on survey data and law-review scholarship never tested at trial. New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 602 U.S. ___ (2024), likewise involved no testifying historians. This term’s Wolford v. Lopez, striking Hawaii’s default no-carry rule on private property, involved no trial. Neither did the Court’s grant of certiorari in Viramontes v. Cook County, out of the Seventh Circuit, or Grant v. Higgins, out of the Second Circuit, both challenging assault-weapons bans and now consolidated for argument this fall. The exceptions are vanishingly rare — Judge Stephen McGlynn’s week-long trial on Illinois’s gun-ban law in the Southern District of Illinois being the notable one.
Why This Matters for Litigation Strategy
I press this point because the incentives in Second Amendment litigation are lopsided. The gun-control movement commands resources on a scale our community cannot match — billionaire-funded public-health schools, sympathetic state governments, and a deep bench of academic experts for hire. When Second Amendment litigators agree to fight on the terrain of trials and expert witnesses, they are volunteering to fight the side with infinite resources on the ground where infinite resources win. That is a losing strategy dressed up as diligence, and it can cost a plaintiff seven figures for no constitutional benefit. The Supreme Court’s own practice, case after case, confirms there is a better way: litigate the history, litigate the text, and leave the expert witness list empty.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.