United States v. Hemani reaches far beyond marijuana policy. This case forces the Supreme Court to answer a fundamental question: Can the government strip Second Amendment rights without clearly defining who loses them?

Adeel Bashir joins The High Court Report to break down this high-stakes case. Adeel works as Federal Public and Community Defenders Sentencing Resource Counsel and defended numerous clients charged under this exact statute.

Adeel explains the case from each angle then widens the lens. Controlled substances under federal law include Adderall, Xanax, cough medicine, and supplements common in gyms across America. Millions of Americans could fall within the statute's reach without ever knowing it.

But the stakes cut both directions. The government argues that courts should defer to congressional judgment about which groups pose risks; a principle that, if accepted, preserves legislative flexibility to address evolving public safety concerns. Adeel walks through Congress' power to classify conduct as dangerous while noting that other prohibited-person categories may face similar challenges.

Something must give. The Court's reasoning here will define Second Amendment battles for years. You don't want to miss this episode.

Oral arguments take place Monday, March 2nd. To learn more about the case, check out The High Court Report case preview: Here.

Connect with Adeel Bashir on LinkedIn: Here.

Did you know that a federal law strips gun rights

2

from anyone who uses marijuana

with no proof of danger required?

3

Monday, March 2nd, the Supreme Court

hears oral arguments about whether

4

this law violates the Second Amendment.

5

I'm Ryan Weir, and this

is the High Court Report.

6

Today, I want to deep dive into this case.

7

United States versus Hemani.

8

I'm joined today by Adeel Bashir

to help us break down this case.

9

Adeel works as federal,

public and community defenders

10

sentencing resource counsel.

11

A deal represents people

charged with federal crimes.

12

He's encountered this statute dozens

of times while defending clients.

13

in his individual capacity, not in

his capacity as a writer of an amicus

14

brief on behalf of the National

Association of Criminal Defense

15

Lawyers, Adeel's views are his own

and not that of any organization.

16

Hi Adeel, how are you doing today?

17

Adeel Bashir: Hey Ryan.

18

thanks so much for having me.

19

You're doing great.

20

It's a lovely day here in

Tampa, Florida where I live.

21

Ryan Weir: Great.

22

We're so excited to have you on.

23

Let's just dive right in.

24

Give us your 60 second take.

25

What most stands out

to you about this case?

26

Adeel Bashir: Well this is, this is

really gonna, I think, shape up to be

27

one of the blockbusters of this, term

because it's really the confluence of

28

two doctrines that have been dominating,

Supreme Court practice over the last, I

29

would say decade or decade and a half.

30

And that really has to do with, the

individual right, to possess a firearm

31

under the Second Amendment and the

right to self-defense, and really

32

enshrining that as a individual, right?

33

a right that's on par with the First

Amendment and the Fourth Amendment.

34

And then on the other hand, is a strain

of statutory interpretation law that.

35

Really just dives into this idea of what

can the government prosecute, and do.

36

Are we a nation of laws or are

we a nation of too many laws?

37

and really is almost every single action

or every day, mundane actions not only

38

subjecting us to criminal penalties,

but stripping of us, of our, You know,

39

enshrined constitutional rights, whether

it be First Amendment, fourth Amendment,

40

and in this case Second Amendment.

41

So there's a lot at stake here, for

what seems at the surface to be,

42

you know, a case about, you know,

two things that Americans, quite

43

love their guns and their weed.

44

Ryan Weir: That's the perfect setup.

45

The legal fight we're about

to unpack starts with a pretty

46

straightforward set of facts.

47

Here's what brought this

case to the Supreme Court.

48

Federal law makes it a crime punishable

by up to 15 years in prison for

49

any drug user to possess a firearm.

50

And now I'm gonna read from

the statute itself because I

51

want to get the text right.

52

It is a felony under federal law

to possess a firearm if the person.

53

An unlawful user of or addicted to any

controlled substance Adeel, walk us

54

through what this means, what the text

actually says, and where the government

55

and Hemani draw completely different

conclusions about the very same words.

56

Adeel Bashir: Yeah, so this

is, one of the most, prosecuted

57

offenses in the federal Code.

58

it's a statute which you quoted from 9

22 G, and it has several subsections.

59

The most common.

60

Of which is someone who has a prior

conviction for a felony offense.

61

And this is a less often used provision,

but it falls within, as you quoted in

62

your text, uh, anyone who either is

an unlawful user or addicted to any

63

controlled substance and controlled

substances here are defined under.

64

the federal, controlled substance act.

65

So cross references, that

act contains five schedules.

66

I think most people are familiar with kind

of the common drugs that are prohibited.

67

You know, you're talking your marijuana,

cocaine, heroin, um, you know, fentanyl,

68

things of that like, Those schedules

are pretty broad, and when you start

69

looking at them, they include things

like cough medicine, steroids, Xanax,

70

and the one that's at issue here.

71

marijuana.

72

Um, you know, if, if you've been

following the news, you've seen a lot.

73

talking about the current administration

rescheduling, which really just

74

means moving it from, certain,

higher, restrictions under schedule

75

one to potential schedule three.

76

The important thing for the

audience is, um, all of those

77

drugs are controlled substances.

78

So this statute says if you are a user.

79

an unlawful user or addicted to, any

controlled substance, then you are

80

not only prohibited from possessing

a firearm you could potentially

81

face up to 15 years in prison, for,

being in possession of that firearm.

82

So.

83

The first thing right off the bat, when

we're looking at this case, is this law

84

constitutional under the second Amendment?

85

So let's just take it a step back.

86

what does the Second Amendment say,

over the last, decade or so, but

87

really in the last couple years?

88

the Supreme Court has made it clear that

the Second Amendment not only protects

89

an individual's right to possess a

firearm, but, unlike, years past where the

90

analysis and looking at a law of whether

or not it's constitutional or not would

91

depend on, they'll like to call means-end

scrutiny as, as the name suggest.

92

do the ends justify the means.

93

it used to be, the government

could say like, look.

94

Somebody uses drugs or they're addicted

to drugs, we have a, a good reason

95

to keep firearms out of their hands.

96

Is this law a good way of doing it?

97

Is it valid?

98

what the Supreme Court

has said is, no, no, no.

99

That's not the way we're

gonna analyze this anymore.

100

The relevant question actually is, is,

is this law consistent with history,

101

the text of how the Second Amendment was

understood at the time of the founding.

102

and is it consistent with the way

in which the founders restricted

103

someone's right to possess a firearm?

104

Well, that requires a lot of us to put

on, our time machine hats and go back.

105

So, bringing it back to the framing here,

of, what's really going on in this case.

106

you have this, historical

inquiry that needs to happen.

107

And before you can even do that, first

thing you need to realize is well

108

before we can say, does the statute

match with history and tradition?

109

Or is it an analogous to

history and tradition?

110

You have to figure out what

does the statute even mean.

111

And what does it say?

112

So if you look at the way the

government, who is the petitioner in

113

this case, they lost in the court below.

114

They're the ones who brought the case

to the Supreme Court and got granted.

115

What they're saying is, look, when

you look at that unlawful user

116

language, what it really means is

someone who's habitually or regularly

117

using a controlled substance.

118

and that is similar to in the past, how.

119

the founders would restrict, let's say

someone who was habitually drunk or a

120

criminal vagrant, or somebody who was

disturbing the piece of unsound mind.

121

Those are the type of people

that were risky and dangerous.

122

We wouldn't want them to have

firearms, so we took them away.

123

On the other hand, you have Mr.

124

Hemani coming saying, let's

stop here for a second.

125

The language of the statute

says, unlawful user.

126

Where did this word habitual come from?

127

Where did this word regularly come from?

128

And, why are we even talking about

addicted to, this prosecution is

129

what they like to call as applied.

130

It's as, constituted to Mr.

131

Hemani's conduct.

132

And here the only thing he's, accused

of doing is admitting to smoking

133

marijuana about every other day or so.

134

So the first thing

respondent is saying is.

135

And I would pose the question back, you

know, when someone says you're a user

136

of something, well, what does that mean?

137

does that mean, anytime I have

used, you know, I used a credit

138

card that I never, used because I

needed to just purchase something.

139

I wanted the points on it.

140

am I a user of that credit card?

141

Well, maybe to some.

142

Is it the same thing as being

addicted to, is it regular use?

143

am I a user of, I had green tea recently.

144

I think the last time I had green tea was

maybe in the first Bush administration.

145

But it was hot, it was a little cold.

146

I decided to partake, am

I a user of green tea?

147

We don't know.

148

and that's really what respondent

is saying is look, when we're

149

talking about constitutional rights

in particular and criminal laws.

150

you need to provide clear notice

and fair notice as to what the

151

statute is really implicating.

152

So, just to say someone is

an unlawful user is far too

153

broad, far too far, too vague.

154

And even if we were to narrow it

down in the way the government was

155

saying, Point two, and this is really

where a lot of the battle between the

156

parties, comes into play is, well.

157

How sufficiently analogous

does it have to be to history?

158

on the government side,

they've made the point that.

159

People that were habitually drunk or,

vagrants, that were causing disturbances.

160

Those are the types of people that,

um, you you could temporarily either

161

in prison or take away some, of their

use of firearms 'cause they would

162

pose some special risk of misuse.

163

Whereas, Mr.

164

Hemani would say.

165

No, that doesn't happen

when you're just a user.

166

You have to demonstrate that you're

actively, presently under the influence.

167

So it could be the case maybe on

certain substances that could alter

168

your mind or in certain instances, of,

contemporaneous where you're using.

169

Think about drunk driving, you know,

where you're actively doing something

170

and operating a vehicle or, you know,

I think about medicines where it

171

says do not operate heavy machinery.

172

They probably also.

173

Could write and don't shoot your

gun while you're doing this.

174

you know, those might be

instances, but not Mr.

175

Hemani.

176

Mr.

177

Hemani just said he smokes

marijuana every other day.

178

They don't really know when he smokes it.

179

Does he do it right

before he goes to sleep?

180

Um, you know, in this case, the,

the record evidence doesn't show

181

that he ever possessed his firearm

while he was, smoking marijuana.

182

the gun was safely secured away.

183

in fact, he was being investigated.

184

you know, kinda the atmospherics of

this case was on potential, terrorism

185

charges that never materialized.

186

and he actually turned, you know, told

a law enforcement about his firearm.

187

and turned it over.

188

So there really wasn't any, allegation

or indication that he ever did

189

anything improper, with his firearm.

190

and so, you know, it's really be

coming down to a battle and a landscape

191

of what is the statute even saying?

192

Is it giving us definition?

193

And when we're looking back in

time, you know, how closely does

194

this analogy have to follow?

195

the government wants

to go broader and say.

196

We just, we don't need an exact fit.

197

and the Supreme Court has said

as much, but this is close enough

198

and it's kind of analogous.

199

Whereas respondent is saying,

look, we have rights at stake.

200

If we were talking about the First

Amendment, if we were talking

201

about the the Fifth Amendment, you

know, we would be demanding more

202

of what the statute would say.

203

and if you look at some of the other

categories under 9 22 G, Whether

204

it's the felon possession statute or

otherwise, they at least have some

205

clear definitions of what it means.

206

You know, there's an adjudication.

207

there was a, a term, a case

from a couple terms ago.

208

Rahimi was the name of the case.

209

in that instance, if you were under a,

temporary restraining order, you could

210

be, prosecuted for possessing a firearm.

211

Well, there a judge has put you

under a temporary restraining order.

212

There's not really that good of an

argument that you're unaware of that fact.

213

and the last thing I'll say is, when

we're talking about this statute as well,

214

you have two aspects, unlawful user or

addicted to, and there's a principle

215

in the law that when you're using

different terms, there's presumably.

216

there could be some overlap, but

they're meant to have distinct meanings.

217

maybe being addicted to a

substance or being declared

218

addicted to could mean one thing.

219

But, the analogy I like to use is,

if you ask my wife, I'm addicted to

220

football, but if you ask my kids, I

don't watch enough, what does that mean?

221

I think for the audience

is an important question.

222

ask yourselves right now, who you

know and who your friends know.

223

Think about all the controlled

substances that come to mind.

224

your adderalls, your Xanax,

you're using, certain medicines

225

without a proper prescription.

226

It's cold and flu season.

227

Maybe you've taken some.

228

antibiotics of some

sort or cough medicine.

229

maybe, you're some of the

folks I like to see at the gym.

230

I don't know if they have prescription

for everything they're taking.

231

They look good, but, I question

some of that sometimes.

232

and then ask yourself, well.

233

Are every single one of those people

prohibited from having a firearm?

234

When, where, how.

235

And that's really what the

Supreme Court has to grapple with.

236

and they're gonna have to make a lot

of tough decisions here, not only in

237

explaining how we're gonna do this

analysis, but just how broadly or

238

how narrow early they want to go.

239

Ryan Weir: That was a

very helpful explainer.

240

Adeel Bashir: Yeah.

241

Ryan Weir: Let's go to the

habitual user side of things,

242

because when I read the statute.

243

As you mentioned, nowhere in it does

it say habitual or regular user.

244

And so it seems like the government

is reading into the statute, the term

245

of habit, and is that what, what's

your interpretation of what that and

246

just because that's an issue that

dominated the briefing, do you think

247

that holds sway with the justices?

248

I read an amicus brief that mentioned

what you mentioned about how habit

249

and addicted to, they seem to be very

similar words, although perhaps, I'm

250

not sure if there's different dictionary

definitions or not, but seems like

251

unlawful user is for the parties.

252

That issue here, that that phrasing

alone seems to be too broad for them

253

to even take to the Supreme Court.

254

Adeel Bashir: Right.

255

So a couple things to say there,

and I think the way to set

256

this off is since we're dealing

with a constitutional question.

257

There's another provision in the law.

258

You'll see there's a lot of intersections

of the law coming, and there's a

259

provision of the law that's the

constitutional avoidance doctrine,

260

where the court, if they can give an

interpretation to a statute to avoid

261

saying a statute is unconstitutional

or void for vagueness in this instance,

262

or fails to provide fair notice or due

process, they're gonna try to do that.

263

if you're one of those people

that likes to really, nerd out

264

on statutory interpretation.

265

I always like to call it a choose your

own adventure, form of the law because,

266

everything that you've pointed out.

267

in the world of statutory interpretation,

there's always a counterpoint.

268

So, when we look at this word

use, the Supreme Court has

269

interpreted numerous times and has

described that word to be elastic.

270

meaning that depending on its context,

it can take on a lot of meanings.

271

So if you go to a dictionary.

272

Use means something to avail

oneself of or of the like.

273

But you know, there's lots

of tools that you would use.

274

one of which is, well, let's look at its

surrounding text and it says addicted to.

275

So, is it similar to addicted to,

there's some principles that say

276

we try to ascribe words that are

close together to similar meaning.

277

Then there's other

principles that say, well.

278

They can't mean the exact same

thing because we presume Congress

279

doesn't, is not redundant or whatnot.

280

there are a lot of presumptions,

you know, for the audience.

281

I think you'll, set aside cynicism.

282

You know, when we do a lot of these

exercises, we don't try to, read into the

283

mind of, of, of what Congress was doing.

284

I mean, you know, in some instances

it could have just been some staffer

285

trying to, add some rhetorical flare,

but nonetheless, the exercise that we'll

286

do is that Congress doesn't do that.

287

No, that's that, you know,

we're far too sophisticated of a

288

country to go along, those lines.

289

So, you know, there's gonna be some

principles and, you know, mostly every

290

court of appeals that's had to deal

with this question over the years.

291

it's come up number of times.

292

What does it mean to be a user?

293

They've said.

294

It has to have some form of at least

regularity, or when we say unlawful use.

295

When we mean use here, we don't

mean just single use that I

296

think both parties agree with.

297

The question really is,

well, what's that line?

298

and where the notice question

comes in is how do you know

299

when you crossed that threshold?

300

there's an important, caveat to the

statute, in a case from a number of years

301

ago actually one of my own cases, by the

name of Rahe, that said under, these,

302

prohibited person statutes under 922(g).

303

not only does the government have to show

that you belong to one of these statuses,

304

unlawfully and present in the country,

in this instance an unlawful user.

305

the person has to have men's

rea a knowledge that they

306

belong to that category.

307

So.

308

on the one hand respondent

will say, well, look Mr.

309

Hemani, we asked him if he smoked

marijuana, and he said, yeah, every

310

other day he knows he's a user.

311

on the other hand, Mr.

312

Hemani would say, well, you

just asked me a question.

313

I don't know the legal

definition of a user.

314

maybe I live in a jurisdiction

where marijuana uses is legal.

315

Obvious is illegal under federal

law, but it's legal under state law,

316

perhaps I'm not as familiar with, all

of the codes or I misunderstand my

317

prescription or, and you know, that

notice question and when you cross

318

that threshold, is very important.

319

The petitioner in this case,

the government, makes kind

320

of an interesting argument.

321

and I think they've drawn on.

322

some of the cues from previous

Supreme Court cases, that have said

323

this is not a permanent restriction.

324

You're an unlawful user.

325

All you gotta do is give

up your habit and, voila.

326

You got your Second Amendment right back.

327

There's a lot of questions about how that

would work, and how that would, work out.

328

and one thing that I think is also really

important to stress here is in years

329

past, eons ago, it used to be a somewhat

valid argument to the US Supreme Court.

330

If the government could get up and

say, look, you're talking about the

331

over breath problem here, and we

could potentially be saying anyone

332

who uses any controlled substance.

333

'cause that's what the statute says.

334

That could mean anything from marijuana

to Xanax, to Adderall to cough medicine.

335

we went and prosecute those cases.

336

That, that's crazy.

337

that argument does not

tend to fly anymore.

338

for reasons that may be self-evident,

that, we've actually seen examples

339

of lots of prosecutions, and

trust in prosecutorial discretion

340

is less and less, significant.

341

So, you know, and hopefully you

check out the oral arguments.

342

something the Supreme Court loves to

do, is really test the limits of both

343

sides, theories with hypotheticals.

344

So there will undoubtedly be instances

of, well tell us, would this count?

345

Would this be closer?

346

or would this be too far?

347

the cases that are extreme, someone

who's, every day, shooting heroin or,

348

mixing multiple drugs or whatnot, even Mr.

349

Hemani says, look, those

may be different cases.

350

That's not what we're dealing up here.

351

The government's gonna try to really

lean into that direction, whereas Mr.

352

Hemani is gonna look at and say,

and you'll look at a lot of the

353

amicus briefs you've referenced.

354

you can look at the statistics

in this case or just go to

355

Pew Research on the otherwise.

356

Large majorities of

Americans own firearms.

357

The number of Americans that have,

smoked marijuana, either in a

358

weekly basis or, taken, a substance

that would be prohibited under

359

federal law, is surprisingly high.

360

It's probably much higher

than what people think.

361

But it, you know, if you just

look at your everyday colloquial

362

life, You'll probably realize.

363

Well, yeah.

364

I mean of the, of five people I know

there's at least one I know that

365

is doing something that, Isn't out

of the ordinary or otherwise, um,

366

are we really risking all of those

people's Second Amendment rights?

367

And I think that's gonna be really at the

forefront of the Supreme Court's mind.

368

And it's gonna be incumbent on

the parties to battle that out.

369

the battle between, trust us, we

are, we're not going to go that

370

far versus, you know, we're talking

about constitutional rights here.

371

Trust is really not the currency in which

the Constitution, delivers in, it's about

372

rights being clearly defined and before

you can, take them away from people.

373

Ryan Weir: Great.

374

Adeel Bashir: Yeah.

375

Ryan Weir: Since you brought

up the oral arguments, let's

376

turn our attention to there.

377

For another issue that's percolating,

in this case, about Congress and their

378

determination about dangerous people.

379

And that has to do with the Second

Amendment, and Congress can make

380

class-wide determinations about whether

group of people who use controlled

381

substances and who possess a firearm,

they're categorically dangerous.

382

Talk to me about how that will

play out in the oral arguments.

383

Adeel Bashir: you raise a really excellent

point because the Supreme Court, when

384

we're talking about this historical

inquiry and looking at the ways in which

385

the founding era restricted rights, in

its most recent Second Amendment case,

386

you know, left open this question.

387

About whether and to what extent

Congress can make these kind of

388

legislative determinations, about

who is risky and who is dangerous.

389

Because there's a general proposition,

and I don't think this is controversial

390

amongst probably all justices,

that, if you are a dangerous person,

391

you can have your firearm, rights

restricted at least temporarily.

392

The rubber hits the road when we

try to figure out, well, how do we

393

define what it means to be dangerous?

394

and that's where that deference to the

legislature becomes really important

395

because we end up creeping very

close back into this means end world.

396

Right.

397

If you can imagine, the analogy I've

been giving, some folks is, just

398

imagine yourself a congressional

hearing, in a week or so that

399

says, anybody that went to.

400

You know, a COVID rally or a Black

Lives matter rally, you know,

401

presumptively dangerous and risky people.

402

and the legislature may that

determination, how much stock or wait are

403

we gonna put into it just because Congress

says that, or what if you have on the flip

404

side, you went to a January 6th hearing,

or you've gone to, a Turning Points USA

405

rally or something of the, like, you know.

406

Think of these hypotheticals on any

side of the political spectrum, are

407

we really just leaving it to the

legislature to determine what is,

408

risky and dangerous, you know, persons

and how broad do we wanna get there?

409

And this again, kind of just

dovetails exactly back to the parties

410

arguments because the petitioner

would say, look, in the past.

411

Uh, if you were drunk, and you lost

your mind and your senses and you

412

were on the streets and you were

misusing firearms, that's the type of

413

thing that's pretty close to, we all

know drugs and guns are dangerous.

414

Um, that combination together and, there's

no requirement that they be ex, you know,

415

we have to wait for that danger to happen.

416

You know, the government is often very

effective in pushing arguments of, You

417

know, do we, do we really wanna wait

for that risk to occur and the bad thing

418

to happen before we try to stop it?

419

Whereas Mr.

420

Hemani is coming back and saying, look,

you're talking about different cases,

421

we're talking about marijuana use.

422

every one of your studies that says,

you know, marijuana use is dangerous.

423

I have a study that says it not.

424

and what's really fascinating here

is, I was alluding to earlier, you

425

know, the administration has proposed,

rescheduling marijuana from a Schedule

426

one, which would be of, you know, the

highest risk of misuse to a schedule

427

three, which would really put it in

a line with like a anabolic steroid.

428

Their HHS is determination is,

most people that use marijuana are

429

not, really a danger to, either

themselves or to the public.

430

So, that is, it's not a,

legislature determination, but

431

it is an executive determination.

432

And how much weight do we give to that?

433

So there's really two things going on

here is there's a doctrinal question

434

of are we gonna allow Congress to

make these, broad determinations?

435

Anyone that commits a felony is

dangerous and just use that as a proxy.

436

that's kind of question one.

437

Or in this instance, anyone that uses

a drug, and we can define it broadly.

438

Because look, we're not, we don't have

to get into the nuances, so says the

439

government, versus, no, we have to look

at these in a much more class basis.

440

and someone who uses X drug or

someone who takes y type of conduct

441

is really what we're talking about.

442

And then we're gonna get into the granular

of like, let's talk about this case.

443

And the Supreme Court can really, um,

kind of choose how much they want to

444

answer the first question or other,

you know, as I said before, they left

445

that question open in previous cases.

446

the court when it wants to, it can

answer a question, but if it can avoid

447

answering those type of questions,

it may choose to do so as well.

448

for fear of saying more

than they wanted to say.

449

the special risk of misuse is, A

really important issue in this case

450

because it'll end up defining the

parameters of just how broadly we're

451

gonna get into these, other categories.

452

'cause spoiler alert, if anyone thinks

this is gonna stop with, 922(g)(3)

453

and the unlawful user, make sure you

save your punch card for how many of

454

these cases are gonna come up there.

455

You're gonna get your free smoothie

sooner or later because there,

456

there's gonna be more cases,

there's no shortage of petitions,

457

there's no sorts of prosecutions.

458

and these issues just keep

percolating, over and over.

459

Ryan Weir: Yeah.

460

Okay.

461

And so is there, you mentioned the canon

of statutory Avoidance or constitutional

462

Adeel Bashir: Constitutional.

463

Ryan Weir: So it sounds like what

you're saying is there, even though the

464

question presented, the government is

asking the Supreme Court to determine

465

the Second Amendment viability of

this statute, the Supreme Court

466

isn't bound to answer that question.

467

They could offload the case on

statutory interpretation grounds.

468

Adeel Bashir: Yeah, a a, absolutely.

469

I mean, really, and if you look at

respondent's briefs, they lead with

470

this void for vagueness due process

argument, And the best way to really

471

think about it is before we can ever

say whether a statute is constitutional

472

or not, you have to figure out

what is the statute even saying.

473

And if the Supreme Court looks at it and

says, look, any way you slice this, we

474

really can't figure out what it's saying.

475

And the text always has to, when

I was speaking earlier about the

476

constitutional avoidance and you'll

try to ascribe a meaning to a statute.

477

the text has to bear that weight, so

you will not give the text, meaning

478

that the words just cannot handle.

479

and the majority of this court, across,

ideological spectrums, ascribes to

480

this idea of, textualist reading and

using a lot of the principles of,

481

plain meaning of a statute looking

to dictionary contemporary usage.

482

Usage at the time the statute

was passed, to try to get at

483

what Congress was meaning.

484

So, there'll be the statutory battle

is a big, heavy, weighty, meaty battle

485

that really defines, what we as,

individuals, Americans, citizens et

486

cetera, understand the statute to mean

so you can have a clear understanding.

487

Not that if you're being prosecuted,

you had to know the statute existed,

488

but if somebody was looking at it in a

vacuum and say, I know what this means.

489

on the other hand, this idea of,

look, if you get five people in a

490

room and they're arguing over it

and they have to go read, you know.

491

Um, arcane or esoteric, uh, you know,

opinions to say, well, this is what it

492

actually says, and it's so divorced from

the meaning of the statute, that that's

493

where you start, running into trouble.

494

and the court can really, you know,

that spectrum is where they have to go.

495

I will say, I think courts are hesitant

to declare statutes, void for vagueness.

496

But that said, they've

done it several times.

497

and particularly in the criminal

context, in recent years and in

498

statutes that implicate, the dangers

of drugs and violence, and guns, and

499

a lot more, uh, you know, heightened

fashion than the one at issue here.

500

I'm not a Poly Markets guy, but, going

into this case, there are certainly,

501

tea leaves on both sides that, would

suggest that the Court has, different

502

ways that they can look at it.

503

But, when you get to that Second

Amendment question, now you're raising

504

an entirely different, can of worms.

505

And now looking at this,

big picture of just.

506

How broadly can we restrict

the Second Amendment right?

507

I would really encourage

people to think of it.

508

I, spent a lot of my career, and

still do, representing individuals,

509

you know, charged under the statute.

510

Um, you know, in, in various contexts

there's always the question of

511

like what Congress was getting at.

512

Um, you know, it could be laudable goal,

but really how does it play out in effect?

513

and so if you look at a lot of the

briefing in this case, you'll see.

514

How is the statute

actually being played out?

515

in Mr.

516

Hemani's case, he was being prosecuted

or being investigated for potential

517

terrorism ties, which really

had, um, you know, really kind of

518

rudimentary knowledge of, you know,

uh, traffic patterns and visitations

519

to, you know, foreign countries

would maybe dispel like the notion.

520

Not to say that there wasn't probably some

521

basis to do the investigation, but

it is telling when, you know, they

522

searched his cell phone to find evidence,

you have that issue at play here.

523

not at the forefront of legal issues.

524

But, his travel patterns,

were being, surveilled.

525

and he wasn't charged until

months after he was, confronted

526

with having this firearm.

527

and that is a consistent pattern of,

you know, there, I don't think anyone

528

thinks the government was going into

this case of saying: oh man, this guy

529

just used marijuana every other day.

530

We need to take the

firearm out of his hands.

531

they were really looking for

something else else, but the statute

532

exists so he could be charged.

533

Um, and, uh, while not.

534

you know, what's not at

issue in this case is, is Mr.

535

Hemani a dangerous person?

536

It is in the background, like, is

this the type of person or are you

537

and your friends and colleagues or

the people that you know, are you

538

the type of person that really should

be having your firearm taken away?

539

and the Supreme Court is the

body that that really is gonna

540

have to answer that question.

541

Ryan Weir: Really looking

forward to oral argument.

542

And like I said, oral arguments

take place on Monday, March 2nd.

543

You can hear oral arguments on the

High Court Report podcast feed.

544

questions for you.

545

I'll get you outta here on this.

546

in the blanks.

547

the United States wins, in the blank.

548

if Ani wins, fill in the blank.

549

Adeel Bashir: if the United States wins,

in the Second Amendment restriction

550

world, they will have a landscape

that, Much more broadly than we

551

understand today can define categories

of dangerous and risky persons.

552

and draw an analogy to say that

those are the type of people that

553

we can not only take away that

are Second Amendment rights, but

554

prosecute them, for those rights.

555

Some listening may think

that's a good thing.

556

Others may worry that that, really

restricts a Second Amendment right.

557

But I don't think there's any.

558

doubt to say if the United States wins.

559

it will be taking a broader

interpretation of what it means

560

to be a dangerous and risky person

than, we really presently understand.

561

on the other hand, if Mr.

562

Hemani wins, we will understand that

the Supreme Court is saying the Second

563

Amendment is the type of right, consistent

with other rights that we know that,

564

if you are going to restrict someone

of that right, you not only need to,

565

define the clear limits under criminal

law about what that means, but also.

566

The historical analogy has

to be, sufficiently tailored.

567

this, the level of generality cannot be

so broad as to say, dangerous and risky

568

persons could be, restricted in the past.

569

Here's a category that, in

some instances is dangerous.

570

there will certainly be a much more,

confined and narrowing construction.

571

so when we're going forward

and looking at other statutes.

572

and other restrictions, whether it be

even civil or criminal, we're really

573

looking at, hey, does this, you know,

is this consistent with, the way in

574

which this, very important, right?

575

that individuals have,

is being restricted.

576

So, you know, it's the age old battle

of broad versus versus general.

577

and I don't mean to generalize

it in that way, but it will have

578

implications, you know, going forward.

579

and I'll caveat all that to say.

580

'cause you know, if you talk to

a lawyer, you're never gonna get

581

a straight answer on anything.

582

there's always that third possibility

that, they themselves take a

583

narrow path and leave a lot of

questions open for another day.

584

which is important.

585

'cause again, this is a.

586

And as applied case, as opposed to, a

case that requires, broad generalities.

587

But, undoubtedly the oral

arguments are gonna be interesting.

588

some real titans arguing this case, some

great lawyers across the board, involved.

589

and, really no stones left unturned when

it comes to, bringing, big guns, to, a.

590

vastly important question about,

everyday life for Americans about,

591

their relationship with the government

and, their constitutional rights.

592

Ryan Weir: Adeel, thank you so much

593

Adeel Bashir: Uh.

594

Ryan Weir: for walking us through and

breaking down these complex issues.

595

is the type of case where on the surface

it can sound easy and straightforward,

596

but then you go layers deep and you

can find so many different avenues.

597

Like you mentioned.

598

This case touches on

first Amendment, statutory

599

interpretation, Second Amendment.

600

It's a really fascinating case and

we're really appreciate having you on.

601

Before you go, where can listeners

find you on social media?

602

Adeel Bashir: hopefully

soon, on other platforms.

603

But the best place, I would say

LinkedIn, you could find, Adeel,

604

Bashir, feel free to look me up if

you're in the, criminal defense world.

605

I work for the, Federal Defenders

Sentencing Resource Counsel.

606

We have, national Listservs that are

available to all federal defenders and

607

all Criminal Justice Act, attorneys.

608

and those that are members of National

Association of Criminal Defense

609

Lawyers and other, affiliations.

610

So, feel free to reach out.

611

Part of my job is to help

wonderful lawyers and individuals,

612

deal with these cases.

613

So, pleasure to be here with your

audience, but also pleasure to connect

614

with others in the community to

grapple with a lot of these issues.

615

I'm sure everyone's gonna go back

and now check their prescriptions

616

and then also make sure their

firearm is safely locked away.

617

after this, yeah.

618

Check your favorite

cannabis and smoke shop.

619

you know, they, they may have, they may

have inadvertently made you a felon.

620

Ryan Weir: Yeah.

621

Yeah.

622

Yeah.

623

Wow.

624

Well, again, thank you

so much for your time.

625

We really appreciate that.

626

LinkedIn, Adeel Bashir,

A-D-E-E-L B-A-S-H-I-R.

627

We'll link to your LinkedIn

feed in the show notes to make

628

it easy for people to find you.

629

Thanks again for your time

and we will talk again soon.

630

Adeel Bashir: Thanks so much,

Ryan, and really love the service

631

you're doing here for folks.

632

I think it's critically important we

have, an easier and broader understanding

633

of the, the Supreme Court and be able

to look at these issues 'cause they

634

impact all of our lives with, um, you

know, with a good understanding of

635

all the issues and what's at stake.

636

Ryan Weir: Thank so much.

637

I'll talk to you soon.