U.S. v. HEMANI, PART II:
THE NOT SO UNANIMOUS CONCURRENCES
By
Prof. Anthony Michael Sabino
In United States v. Hemani, 608 U.S. ___ (No. 24-1234) (June 18, 2026) (“Hemani”), the United States Supreme Court decreed that a federal law prohibiting firearms possession by “unlawful user[s] of…any controlled substance,” see 18 U.S.C. § 922(g)(3), violated the individual Right to Keep and Bear Arms, insofar as the statute was applied to an occasional user of marijuana.
Part I of this article summarized the unanimous opinion. Here, in Part II, we shall exposit the three concurrences, each of which has crucial implications for future Second Amendment adjudications—if not additional matters of constitutional import.
Justice Jackson and Bruen
We commence with Justice Jackson’s concurring opinion. Joined by Justice Sotomayor, the Court’s most junior Justice provides an extraordinary writing. Notwithstanding her assent to the main opinion, for reason that it adheres to New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), she “continue[s] to believe we veered off course” in the aforementioned landmark.
In Justice Jackson’s estimation, “Bruen is unworkable;” it “leaves no room” for contemplating real, present-day societal problems. For both reasons, the Justice calls upon the supreme tribunal to “retire the failed Bruen experiment” at such time it is squarely asked to reconsider the relatively new precedent. Her stated preference is for a reversion to what she denominates as a “more rational” means-end test.
Given that none of the parties in Hemani suggested that Bruen be reversed, Justice Jackson tempered her comments in a parenthetical, delimiting them to the mechanics of a means-end test, not what that standard might have produced in the case at bar. Nevertheless, it is undeniable that the Court’s most junior Justice has staked out a position that shall almost certainly be reasserted in some future constitutional controversy.
Justice Alito—a narrow view
Next is Justice Alito, who, accompanied by Justice Kagan, concurred in the judgment only. His limited joinder was premised upon two aspects of the case at bar. First, that the government failed to meet the Bruen standard because it relied upon historical analogues lacking relevant similarity to the statute in controversy. Second, that the instant ruling left untouched Section 922’s remaining proscriptions, especially those barring firearms possession by felons and the mentally ill.
Justice Alito tacitly agreed that the habitual drunkard laws cited by the prosecutors were inapposite to the matter at hand; such legislation was unquestionably focused upon individuals so intoxicated that they were “practically incapacitated and incapable of managing their affairs.” Statutes of this ilk were enforced against those who “drank so much, so often” that they were incapacitated “in a more persistent and pervasive manner” than ordinary drinkers (quotation and citation omitted).
The veteran jurist also joined his brethren in commiserating that the record below sorely lacked pertinent detail. “All that we know” is the respondent was alleged to have used marijuana “about every other day.” Nothing was adduced about the amounts or strength of the drug, and the when, where, and frequency of Hemani’s usage.
Most of all, left undefined was “the degree to which this use affected his ability to exercise judgment and perform daily tasks responsibly.” This concurrence was obviously troubled by the fact that the government had failed to tender any evidence that the respondent was “incapacitated in a way analogous to the habitual drunkards” who suffered deprivation of their Second Amendment liberties.
Significant here is the veteran jurist’s frank assessment of the times. Without moralizing, he acknowledged that: many States have legalized marijuana; the national authorities have been tolerant of the drug; and, notwithstanding that marijuana possession persists as a federal crime, prosecutions for its cultivation and use are declining.
“[M]arijuana use today is like alcohol at the founding….widespread and increasingly considered socially acceptable in many quarters.” Therefore, habitual drunkard laws were inappropriate comparators, and Justice Alito would have cabined the instant ruling to that narrow and solitary ground, deeming it unnecessary and inadvisable to say more.
Justice Alito’s concurrence bears some faint similarity to Justice Jackson’s writing, given that both look beyond the immediate. But whereas the most junior Justice openly calls for jettisoning Bruen, the second most senior Justice’s admonishment of the government for relying upon historical analogues “too far afield” implicitly, if not explicitly, signals confidence in that young landmark.
Justice Thomas and the Commerce Clause
We finally arrive at the concurrence authored by the progenitor of Bruen. And while the Court’s most senior Justice joined Hemani’s main opinion without reservation, his perspective was markedly different.
This is a Commerce Clause case, declared Justice Thomas, staunchly reminding that constitutional proviso “does not authorize Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines” (quotation and citation omitted). To hold otherwise would imbue the Article I branch with “a general police power of the sort retained by the States.”
As a matter of both original meaning and high Court precedent, it is impermissible for the Legislative Branch “to regulate the possession of firearms solely on the ground that they crossed state lines at some point in the past.” Nonetheless, Section 922 purports to criminalize intrastate possession of firearms, including in the home, without any need for the government to allege, let alone prove, that an individual came into possession of a firearm by partaking in interstate commerce.
Justice Thomas expressed doubt that the statute was a legitimate exercise of the Commerce Clause power as “an original matter.” The Clause’s seminal meaning simultaneously empowers Congress to regulate genuine commerce between the States, while denying the lawmakers permission to regulate activities wholly separate from business, amongst them marriage, littering, or animal cruelty.
Section 922 fared no better when scrutinized pursuant to the high bench’s contemporary Commerce Clause jurisprudence, which for three decades has strictly enumerated three (and only three) distinct categories of economic activity susceptible to federal regulation: the channels of interstate commerce; the instrumentalities of interstate commerce; and activities which substantially affect interstate commerce. See United States v. Lopez, 514 U.S. 549 (1995).
Justice Thomas was openly skeptical that the statute came within the ambit of the first two classifications. “I also doubt that §922(g) can fall within the third and broadest category.” Keeping in the home a firearm which might have transited states lines in the dim past “is not ‘economic activity’ in any sense,” and the Supreme Court has “emphatically rejected” any notion that Congress can regulate noneconomic, violent criminal conduct solely on the basis of some supposed impact upon commerce between the States. See U.S. v. Morrison, 529 U.S. 598 (2000).
What of the government’s contention that the statutory prohibition’s jurisdictional element validated its constitutionality? Justice Thomas quickly disabused that argument, highlighting the inherent danger in treating every jurisdictional “hook” as dispositive.
Such a practice could very well erase centuries of precedent establishing the Commerce Clause’s boundaries, encroach upon police powers traditionally left to the States, and defy the Clause’s original meaning. The mere fact that Congress believes it is exercising its lawful prerogative to regulate interstate commerce is no guarantee that any enactment “falls within the legitimate scope of those powers.”
Justice Thomas forcefully concludes that the Constitution strictly defines and delimits the authority to legislate, and those restraints may not be dismissed, lest the Constitution crumble. See Marbury v. Madison, 1 Cranch 137 (1803). Therefore, “Congress’s enumerated powers, like Supreme Court opinions setting forth their limits, are…to be taken seriously.”
The Future of the Concurrences
For our dénouement, none can dispute that Hemani is, at least technically, a unanimous ruling. There was no dissent, let alone a strenuous one, from its core holding that habitual drunkard laws were inapt as historical analogues to a modern statute which proscribed firearms possession by those unlawfully using controlled substances.
Yet it would work a grave injustice not to take heed of that decision’s three remarkably powerful concurrences, each of which is certain to resonate in future Second Amendment cases, if not further.
First is Justice Jackson’s unambiguous declaration that Bruen is unworkable. Whether or not her allegation ever gains traction remains to be seen; but it surely points to a day of reckoning.
Next, Justice Alito’s concurrence exemplified commendable fidelity to the principle that constitutional questions should be decided on the narrowest ground possible. While his view did not carry the day in Hemani, it is, nonetheless, an invaluable postulation, one certain to influence, not just the evolution of the Second Amendment’s guaranteed liberty, but other matters of constitutional import.
Justice Thomas’s concurrence is probably the most intriguing, for reason of its superb exposition of the maxims which cabin what would otherwise be irresistible federal power to regulate all things. His writing may yet provide the template for future constitutional adjudications of the Right to Keep and Bear Arms—and beyond. The veteran Justice may also prove prescient in his stern warning against providing lawmakers with almost limitless vistas to legislate under the aegis of the Commerce Clause power.
In closing, Hemani is more than a unanimous ruling or the latest addition to the pantheon of recent Second Amendment jurisprudence. We foresee both the main opinion and its diverse concurrences as touchstones for a wide range of future constitutional controversies.
Prof. Anthony Michael Sabino, partner, Sabino & Sabino, P.C., is also a Professor of Law, Tobin College of Business, St. John’s University. Anthony.Sabino@sabinolaw.com