WEBVTT 00:00:10.818 --> 00:00:17.801 - All right, good morning. So my name is Dr. Jodi Madeera, or Jodi, and I'll be addressing you today on 00:00:17.801 --> 00:00:24.715 - Great Scott. The Supreme Court goes back to the future with substance use disorder. So how do I come 00:00:24.715 --> 00:00:31.561 - to be here today? This doesn't grow out of my elected office. So I'm one of a growing number of law 00:00:31.561 --> 00:00:35.326 - professors who teach Second Amendment or firearms law. 00:00:35.810 --> 00:00:41.281 - I'm the proud author of Blocher, Charles, Madeira, and Miller, the Second Amendment Gun Rights 00:00:41.281 --> 00:00:47.098 - and Regulation, which we published in 2025 from Foundation Press. I'm also the section chair for the 00:00:47.098 --> 00:00:53.087 - American Association of Law Professors, Firearms Law Section. So I've done research on and use as well. 00:00:53.087 --> 00:00:57.694 - In the integration of MAT, I've designed educational apps for college students. 00:00:57.762 --> 00:01:03.612 - and educational programs for problem solving court judges and staff through grants from foundations 00:01:03.612 --> 00:01:09.930 - and the Office of Justice Programs in the Department of Justice. So my work really sits at the intersection 00:01:09.930 --> 00:01:15.839 - of these two fields. So there's obviously tension in this title. Everyone in this room has a working 00:01:15.839 --> 00:01:21.864 - theory of who is dangerous. You build it out of assessments, you build it out of relapse histories and 00:01:21.864 --> 00:01:25.374 - a couple thousand hours from working with people in groups. 00:01:25.890 --> 00:01:34.157 - Over the past four years, the Supreme Court has been building a very different narrative of who is dangerous 00:01:34.157 --> 00:01:41.893 - out of statutes about, quote unquote, habitual drunkards from the 1700s and from 19th century probate 00:01:41.893 --> 00:01:49.552 - records, very authoritative sources for today. So in June, these two theories about who is dangerous 00:01:49.552 --> 00:01:54.558 - are modern theory that medical and recovery experience has built, 00:01:54.754 --> 00:02:01.325 - and the Supreme Court's narrative from the 1700s, they collided in a case about a young man in Texas 00:02:01.325 --> 00:02:08.222 - who used marijuana every other day and who kept a firearm in his house. And he won that case unanimously. 00:02:08.222 --> 00:02:15.053 - So today we're going to work out why he won, what it means for the clients you serve, and why the reason 00:02:15.053 --> 00:02:21.560 - he won has almost nothing to do with anything you were trained in. So first a little bit about what 00:02:21.560 --> 00:02:23.902 - this session is and what it is not. 00:02:24.642 --> 00:02:31.575 - This session is legal literacy for clinical and peer staff. It's a map of what changed starting in June 00:02:31.575 --> 00:02:38.441 - 2026 and what might change in the future. A comparison of two ways of judging risk and a guide to when 00:02:38.441 --> 00:02:45.241 - to stop talking to clients and when to refer clients. I don't mean it to be legal advice to you or to 00:02:45.241 --> 00:02:52.574 - any client. It's not a substitute for a defense lawyer. It's not a position for or against firearm ownership. 00:02:53.058 --> 00:03:00.558 - And it's definitely not guidance on how to answer questions on a federal firearms purchase form. The 00:03:00.558 --> 00:03:08.578 - single most useful sentence you can carry out of this room is on the screen. The law here changed recently, 00:03:08.578 --> 00:03:16.152 - and it's still moving. I can tell you what the categories are. I cannot tell you which one you're in. 00:03:16.152 --> 00:03:22.910 - That answer has to come from a lawyer, and here's how we will get you one. So there we go. 00:03:24.066 --> 00:03:35.139 - A question before any law. If you had to decide who should not have a firearm, what would you want to 00:03:35.139 --> 00:03:43.390 - know about this person? So just take a look about this on these categories. 00:04:20.962 --> 00:04:28.815 - Thank you. So the point is not that the court is being obtuse. It's that the court is asking a different 00:04:28.815 --> 00:04:36.818 - question. You ask, is this person dangerous? Theirs is, does this restriction fit our tradition of firearm 00:04:36.818 --> 00:04:44.447 - regulation? These two questions can actually produce opposite answers about the same human being, and 00:04:44.447 --> 00:04:50.206 - both can be defensible on their own terms. So why talk about guns and drugs? 00:04:51.970 --> 00:04:57.885 - We're spending 70 minutes talking about this right now, not quite that long. But for starters, many 00:04:57.885 --> 00:05:03.919 - of your clients are going to care about this right. A third of US households have a firearm. In rural 00:05:03.919 --> 00:05:10.071 - counties, in farming, and in ranching work, among veterans and among hunters, the share is considerably 00:05:10.071 --> 00:05:15.986 - higher. Ownership is often bound up with questions of identity, with family history, and how people 00:05:15.986 --> 00:05:19.358 - understand their own competence and standing in society. 00:05:20.258 --> 00:05:25.836 - So telling someone in early recovery that entering treatment can cost them something they value that 00:05:25.836 --> 00:05:31.910 - dearly is not a small ask. And if we're going to be in that conversation at all, we really need to understand 00:05:31.910 --> 00:05:37.433 - the legal terrain. Second, it's a constitutional right. Whatever we think about firearm policy, the 00:05:37.433 --> 00:05:43.287 - Second Amendment is in the Bill of Rights, and since 2008, it's been read to protect an individual right. 00:05:43.287 --> 00:05:48.478 - So losing what we call an enumerated right, a right specified directly in the Bill of Rights, 00:05:48.898 --> 00:05:56.222 - raises the questions about what we would ask about any other issue. On what basis do we take that thing 00:05:56.222 --> 00:06:03.334 - away? Who decides whether that's taken away? By what process? For how long? Three, under the statute 00:06:03.334 --> 00:06:10.588 - I'm gonna talk about in a little bit, which is section 922G3, this right disappears the moment someone 00:06:10.588 --> 00:06:17.278 - becomes, quote unquote, an unlawful user. Without notice, without a hearing, without an order. 00:06:17.826 --> 00:06:24.873 - without a finding by anyone that this person is dangerous, regardless of what substance they take. Often, 00:06:24.873 --> 00:06:31.854 - they aren't aware that it has disappeared at all. And four, our clients are part of a structure in which 00:06:31.854 --> 00:06:38.568 - other rights are taken away like this, besides that firearm right. Housing, occupational, licensing, 00:06:38.568 --> 00:06:45.150 - immigration, employment, benefits, child welfare presumptions. It's the same framework every time. 00:06:45.602 --> 00:06:52.230 - Denial is automatic on the basis of the status as a substance user with no individual's finding, 00:06:52.230 --> 00:06:59.064 - no notice, and no mechanism for change lives. In other words, there's no way to put someone back in 00:06:59.064 --> 00:07:06.102 - the system once the status is awarded. There's no way that if, quote unquote, they change their lives, 00:07:06.102 --> 00:07:11.774 - they can get these benefits back. So why is this really a question about recovery? 00:07:13.186 --> 00:07:19.680 - Firearm law is the one place where a court has finally said out loud that this absence of process matters. 00:07:19.680 --> 00:07:25.810 - This is the clearest available illustration of a pattern that governs almost everything else. And so 00:07:25.810 --> 00:07:32.122 - that possibly makes it a lever. Hundreds of collateral consequences attached to a drug conviction. Most 00:07:32.122 --> 00:07:38.252 - of them are invisible to clients the moment they take a plea. Here and so far only here, a court has 00:07:38.252 --> 00:07:40.862 - identified the missing process as a defect 00:07:40.994 --> 00:07:47.152 - rather than an administrative detail and rather than the person themselves. My sixth reason is because 00:07:47.152 --> 00:07:53.131 - no mechanism for the person who changes is a description of the entire recovery fields problem. The 00:07:53.131 --> 00:07:59.468 - recovery field works on the proposition that people recover and that recovery should count for something. 00:07:59.468 --> 00:08:05.506 - Every assessment that is used, every level of care decision, every outcome measure a funder asks for 00:08:05.506 --> 00:08:07.838 - is built to register change over time. 00:08:08.450 --> 00:08:14.333 - A legal structure that fixes status at a moment and never reopens or reconsiders that status is the 00:08:14.333 --> 00:08:20.393 - precise opposite of that. Everyone stays prohibited. Recovery is cognizable in every area but the law. 00:08:20.393 --> 00:08:26.335 - Seven, the question isn't whether we approve. It's not whether we approve of firearm ownership or of 00:08:26.335 --> 00:08:31.924 - anyone's behavior. The question is whether the clients we serve can find out where they stand. 00:08:31.924 --> 00:08:37.278 - Right now, they mostly can't. Their acting on headlines and a wrong guess can be a felony. 00:08:37.826 --> 00:08:45.387 - Reducing this uncertainty is squarely inside our scope. Answering the underlying legal question for 00:08:45.387 --> 00:08:53.023 - every individual isn't. And so I'd like to proceed basically about the statute quickly. So what does 00:08:53.023 --> 00:09:00.811 - the law on the books look like? The statute that we're gonna talk about is called 18 USC 922 G3. These 00:09:00.811 --> 00:09:04.894 - are the words that do the work. And this is the story 00:09:05.058 --> 00:09:12.335 - This is where the story starts. Incidentally, this is the statute that Hunter Biden was convicted of 00:09:12.335 --> 00:09:19.685 - or under in 2024. So going back to the Federal Gun Control Act of 1968, it created a list of a lot of 00:09:19.685 --> 00:09:27.178 - people who couldn't own firearms. Felons, fugitives, people convicted of domestic violence. So in 1986, 00:09:27.178 --> 00:09:32.510 - Congress added another category. Anyone who quote, is an unlawful user of 00:09:32.706 --> 00:09:40.708 - or addicted to a controlled substance, any controlled substance. And the statute says, it shall be unlawful 00:09:40.708 --> 00:09:48.784 - for any person who is an unlawful user of or addicted to any controlled substance to possess in or affecting 00:09:48.784 --> 00:09:56.341 - commerce any firearm or ammunition. So three features of this text matter. First, notice that there's 00:09:56.341 --> 00:10:00.638 - two separate parts joined by or. It's an unlawful user of 00:10:01.346 --> 00:10:07.540 - and addicted to. These are different things, and a prosecutor can charge either one of them. This is 00:10:07.540 --> 00:10:14.287 - the single most important thing here. Second, we don't have in this statute a definition of what a controlled 00:10:14.287 --> 00:10:20.542 - substance is. That's borrowed wholesale from something called the Controlled Substances Act. Congress 00:10:20.542 --> 00:10:27.166 - didn't sit down here and decide what drugs make people dangerous, when they control firearms in particular. 00:10:27.586 --> 00:10:37.232 - It pointed at the Controlled Substances Act schedules and said those drugs. So whatever drugs get scheduled 00:10:37.232 --> 00:10:46.342 - for whatever reason, those drugs are in. Third, the consequences of violating this are really severe. 00:10:46.342 --> 00:10:56.702 - And here are some of the consequences. First of all, it's an automatic permanent ban on firearm ownership, this ban 00:10:56.834 --> 00:11:03.630 - comes into being the moment a person becomes an unlawful user, and it lasts until the pattern of substance 00:11:03.630 --> 00:11:09.537 - use ends. There is no hearing, no finding. In other words, no due process, no order. Second, 00:11:09.537 --> 00:11:15.889 - it's categorical. It doesn't matter what drug. It doesn't matter how often they take it. It doesn't 00:11:15.889 --> 00:11:22.304 - matter in what form or with what effect. So technically, you take a weed gummy and you're subject to 00:11:22.304 --> 00:11:26.814 - this law because marijuana is a scheduled substance. At oral argument, 00:11:27.106 --> 00:11:33.674 - In the case that I'm going to talk about, the US government conceded that a husband who regularly took 00:11:33.674 --> 00:11:40.050 - his wife's prescription ambient to sleep or a college student using a friend's Adderall to cram for 00:11:40.050 --> 00:11:46.427 - a test would both be in the prohibited class and both lose this right until they regained it, which 00:11:46.427 --> 00:11:53.122 - is almost impossible to do. Third, it's blind to the person. There's no requirement to show that someone 00:11:53.122 --> 00:11:54.334 - was ever impaired. 00:11:54.754 --> 00:12:01.752 - ever violent, ever risk to themselves, or ever handled a firearm carelessly, or ever handled a firearm 00:12:01.752 --> 00:12:08.682 - at all. And finally, it's total and scope. It bans essentially any firearm for any purpose, including 00:12:08.682 --> 00:12:15.748 - one locked in a safe at home for self-defense, including one that you would handle as a police officer, 00:12:15.748 --> 00:12:22.814 - law enforcement, et cetera. So everything a clinician is trained to assess lives in that third feature. 00:12:22.946 --> 00:12:30.960 - that being blind to the person, showing that the individual was ever impaired, violent, a risk to themselves. 00:12:30.960 --> 00:12:38.610 - So functional impairment, comorbidity, violence history, protective factors, none of it appears anywhere 00:12:38.610 --> 00:12:46.114 - in this analysis. A person who uses a mild edible on Saturdays and a person who injects fentanyl daily 00:12:46.114 --> 00:12:51.870 - occupy identical legal positions. What's at stake for someone in this category 00:12:52.546 --> 00:13:00.134 - up to 15 years in federal prison. And because this conviction is itself a felony, then it triggers another 00:13:00.134 --> 00:13:07.438 - version of the statute, 922G1, which is permanent disarmament. So a single charge converts a temporary 00:13:07.438 --> 00:13:14.743 - status into a lifetime one. It's true that people who are convicted under this subsection just account 00:13:14.743 --> 00:13:21.054 - for 5% of all people convicted under the statute. So that's not a high volume of people. 00:13:21.634 --> 00:13:28.516 - But it's a charge that sits on top of an enormously exposed population, tens of millions of regular 00:13:28.516 --> 00:13:35.399 - cannabis or marijuana users alone. So law enforcement volume against a huge exposed population is a 00:13:35.399 --> 00:13:42.488 - recipe for arbitrary and selective prosecution. And that's exactly the argument the defendant Hamani's 00:13:42.488 --> 00:13:49.370 - lawyers made here. So a little bit about why the Supreme Court decides things according to laws set 00:13:49.370 --> 00:13:50.334 - in the 1700s. 00:13:53.954 --> 00:13:59.685 - I'd like to walk you through the three cases that really matter. So way back when, from this nation 00:13:59.685 --> 00:14:05.645 - was founded up until 2008, we assumed that gun rights were built on what's called a militia connection. 00:14:05.645 --> 00:14:11.376 - In other words, you had to have some connection to militia to really have firearm rights. But along 00:14:11.376 --> 00:14:17.164 - came a case called District of Columbia versus Heller in 2008. Heller established that it's actually 00:14:17.164 --> 00:14:22.494 - not a militia linked right. It's an individual right to keep and bear arms for self-defense. 00:14:23.234 --> 00:14:30.336 - And there's another statement in that case that really mattered. There is a statement that Justice Scalia 00:14:30.336 --> 00:14:37.103 - said, almost in passing, without any analysis, that said longstanding prohibitions on the possession 00:14:37.103 --> 00:14:43.936 - of firearms by felons and the mentally ill were presumptively lawful. This turns out to be one of the 00:14:43.936 --> 00:14:50.636 - most consequential sentences in modern constitutional law. So it's why courts don't question felons 00:14:50.636 --> 00:14:53.182 - not having firearms. It's why people. 00:14:53.410 --> 00:15:01.075 - Courts don't question people with mental health illnesses being barred from having firearms. The second 00:15:01.075 --> 00:15:08.740 - case that came down is called New York State Rifle and Pistol Association versus Bruin. This was bigger 00:15:08.740 --> 00:15:16.110 - than Heller. So for about a decade after Heller, all the federal courts bumbled around and wondered 00:15:16.110 --> 00:15:23.038 - how to apply it. They finally arrived on one particular way, and they looked at how important 00:15:23.330 --> 00:15:31.240 - essentially they weighed how governments, how well governments weighed public interest when they passed 00:15:31.240 --> 00:15:39.377 - laws involving firearms. So in other words, did a firearm law that was passed, was it based on statistics, 00:15:39.377 --> 00:15:47.059 - was it based on really good empirical data on what public safety showed? So we could consider social 00:15:47.059 --> 00:15:51.774 - science data, we could consider research, and that ended with 00:15:51.874 --> 00:16:00.034 - New York State Rifle and Pistol Association versus Bruin. In that case, the court said that gives judges 00:16:00.034 --> 00:16:07.806 - too much discretion. Instead, we have to go back to what laws were on the books in 1791 or 1868. So 00:16:07.806 --> 00:16:15.888 - instead of looking at the research, the data science, the lived experience on which legislatures passed 00:16:15.888 --> 00:16:20.862 - laws, we had to compare the laws that legislatures passed today 00:16:20.962 --> 00:16:29.751 - to the laws they passed in 1791 or 1868. Why? Because 1791 was the year that the Second Amendment was 00:16:29.751 --> 00:16:38.539 - enacted into the Bill of Rights. And 1868 becomes relevant when the Bill of Rights is made applicable 00:16:38.539 --> 00:16:47.587 - to the states. So what happens, for example, when the laws relate to something that doesn't really exist 00:16:47.587 --> 00:16:50.430 - in 1791, like domestic violence? 00:16:50.594 --> 00:16:57.377 - What happens when they relate to people who legally weren't people in 1791 or 1868, people who were 00:16:57.377 --> 00:17:04.160 - slaves, people who didn't have legal property rights? And so these are some of the issues with this 00:17:04.160 --> 00:17:11.147 - test. So this test got qualified a little bit in United States versus Rahimi, where the court softened 00:17:11.147 --> 00:17:14.878 - what they meant by history and tradition a little bit. 00:17:15.554 --> 00:17:23.708 - And they said, well, you don't have to find an exact parallel to laws in 1791 or 1868. You just have 00:17:23.708 --> 00:17:31.862 - to find a law that looks sort of like this in 1791 or 1868. It's a historical analogy. It's based on 00:17:31.862 --> 00:17:40.177 - the same principles. It has to be relevantly similar, based on similar reasons why or similar effects. 00:17:40.177 --> 00:17:41.630 - And so in Rahimi, 00:17:41.730 --> 00:17:49.364 - They actually upheld a law that banned domestic violence, people who had been accused of or committed 00:17:49.364 --> 00:17:57.148 - domestic violence and were subject to protective orders or restraining orders by analogizing it to laws 00:17:57.148 --> 00:18:04.783 - that prohibited people who were dangerous in 1791 from having firearms. So that's how they got around 00:18:04.783 --> 00:18:11.070 - some of this difficulty. So here's a little bit more about the test. They looked at 00:18:11.394 --> 00:18:19.644 - Well, first of all, the government has to show that it's based on history and tradition. Government 00:18:19.644 --> 00:18:28.224 - has the burden here. Normally, in constitutional litigation, the government has to, this is a different 00:18:28.224 --> 00:18:36.474 - burden. I'll just leave it like that. So here, I think I have some information on the slides that's 00:18:36.474 --> 00:18:38.206 - different over here. 00:18:38.562 --> 00:18:45.168 - The first question is, does the Second Amendment's text cover what this person did? Are we really sure 00:18:45.168 --> 00:18:51.582 - that this has to deal with firearms law? Usually, courts just assume this is the case. And then the 00:18:51.582 --> 00:18:58.124 - second is, can the government prove a historical tradition that fits? Here, it's kind of like pin the 00:18:58.124 --> 00:19:04.537 - tail on the donkey, because the government will say, here's a law that deals with, for example, and 00:19:04.537 --> 00:19:06.718 - I'm not kidding, stealing horses. 00:19:08.674 --> 00:19:15.309 - What are some other ones? I have some examples later on in the presentation. Habitual drunkards is the 00:19:15.309 --> 00:19:21.750 - one I'll be talking about. And they say, these laws are similar based on these reasons. And so then 00:19:21.750 --> 00:19:28.385 - the court will say, well, it was really passed too late. Well, they were passed for different reasons. 00:19:28.385 --> 00:19:34.955 - And the Supreme Court will say, yes, this law is similar, or no, it's not. But there is no step where 00:19:34.955 --> 00:19:37.918 - anyone asks, historically, did this law work? 00:19:38.050 --> 00:19:45.728 - For example, there's no opportunity to consider data science to ask why legislators pass these laws. 00:19:45.728 --> 00:19:53.634 - So that's really unfortunate. This brings us to evidence. Under the old test, a government lawyer would 00:19:53.634 --> 00:20:00.704 - have arrived with epidemiology, overdose data, research on substance use and firearm injury, 00:20:00.704 --> 00:20:07.166 - suicide risk, inactive addiction. But after Bruin, this evidence has no place to go. 00:20:07.298 --> 00:20:13.776 - It's irrelevant, there's no step or anyone in the court that can receive it. So what decides cases now 00:20:13.776 --> 00:20:20.379 - are colonial and founding era statutes, 19th century state laws, legal treatises, early court decisions, 00:20:20.379 --> 00:20:26.857 - legal history scholarship about how these laws were actually used. What do you think these people know 00:20:26.857 --> 00:20:33.335 - about substance use? Very, very little, right? These laws that they're using as analogies may not have 00:20:33.335 --> 00:20:36.542 - even been passed in relationship to substance use. 00:20:38.530 --> 00:20:46.189 - What we know is that these cases are not being decided on overdose and injury mortality data. The DSM-5 00:20:46.189 --> 00:20:53.775 - doesn't even come in here. So here's the problem that this argument creates. How do you determine what 00:20:53.775 --> 00:21:01.434 - the drug laws were in 1791? There is none to argue from. Most substances that the Controlled Substances 00:21:01.434 --> 00:21:07.326 - Act regulates were unknown at the time of the founding. Cannabis, or marijuana, 00:21:07.810 --> 00:21:13.942 - is introduced in the 19th century. It was widely used as a patent medicine and prohibitions 00:21:13.942 --> 00:21:20.741 - didn't proliferate until the 20th century. The first laws that disarm people for drug use date to the 00:21:20.741 --> 00:21:27.874 - 1920s. Opium wasn't only legal, it was given to people from infants all the way to the very, very elderly. 00:21:27.874 --> 00:21:35.006 - So the government had no choice in the case I'm going to talk about, but to argue by analogy from alcohol. 00:21:35.618 --> 00:21:43.417 - Everything then turned on whether an 18th century quote unquote habitual drunkard is meaningfully like 00:21:43.417 --> 00:21:51.216 - a 21st century unlawful user. So here's our introduction to United States versus Hamani, the case that 00:21:51.216 --> 00:21:59.470 - was actually decided this past July. So on its face, this was not a sympathetic case with which to challenge 00:21:59.470 --> 00:22:03.710 - 922G3. The search arose from a terrorism investigation. 00:22:03.906 --> 00:22:10.269 - cocaine had been found in the Hamani household. This use was frequent rather than occasional. Several 00:22:10.269 --> 00:22:16.632 - experienced scholars predicted that the government would win. So Ali Hamani was a dual citizen of the 00:22:16.632 --> 00:22:23.244 - United States and Pakistan. He was born in Texas. He had spent most of his life in the Dallas area living 00:22:23.244 --> 00:22:29.607 - with his parents and working a steady job. In 2022, the government suspected Hamani and his family of 00:22:29.607 --> 00:22:33.662 - terrorism related activity. So the FBI searched the family home. 00:22:34.338 --> 00:22:40.418 - Hamani was fully cooperative throughout. He surrendered a firearm he kept in the house. He pointed agents 00:22:40.418 --> 00:22:46.325 - to marijuana on the property. He consented to an interview where he said he used marijuana about every 00:22:46.325 --> 00:22:52.233 - other day. Agents found cocaine in his parents' closet, so he claimed ownership of it as well. He said 00:22:52.233 --> 00:22:58.198 - his mother hid it from him, and he hadn't used any recently. More than six months later, the government 00:22:58.198 --> 00:23:02.270 - brought a single count indictment, not for terrorism, not for cocaine, 00:23:02.402 --> 00:23:08.305 - not for trafficking, the charge was possessing a firearm while he was an unlawful user of a controlled 00:23:08.305 --> 00:23:14.037 - substance. It rested entirely on his admitted marijuana use. But look at what the government didn't 00:23:14.037 --> 00:23:19.997 - allege. They didn't allege he was addicted, not that he was intoxicated when he possessed the gun. They 00:23:19.997 --> 00:23:25.728 - didn't allege that he had misused it, or that he had done anything with the firearm at all, or that 00:23:25.728 --> 00:23:28.766 - he had ever been a danger to himself or anyone else. 00:23:29.282 --> 00:23:36.561 - Everything a clinician would consider relevant was affirmatively not alleged. The government's position 00:23:36.561 --> 00:23:43.630 - was that none of it was necessary. He spent six months in jail before a district court dismissed the 00:23:43.630 --> 00:23:50.979 - charge. So, and this is a little bit about the road to the Supreme Court. The search was in 22, indicted 00:23:50.979 --> 00:23:58.398 - at February 23. It permutated all the way up to the Supreme Court in 2026, which was actually quite fast. 00:24:00.418 --> 00:24:08.093 - So the government based its case on so-called habitual drunkard laws. This is the closest thing they 00:24:08.093 --> 00:24:15.692 - had to historical analog. And they offered basically three different types. Vagrancy laws. Habitual 00:24:15.692 --> 00:24:23.366 - drunkards were sometimes swept into the quote unquote vagrant category, where they could be confined 00:24:23.366 --> 00:24:25.342 - to a workhouse or jailed. 00:24:26.242 --> 00:24:32.375 - Civil commitment and guardianship statutes. Courts could appoint a guardian over habitual drunkard's 00:24:32.375 --> 00:24:38.873 - person or estate or commit him to an asylum. And surety of good behavior. A judicial officer could require 00:24:38.873 --> 00:24:45.189 - a bond that guaranteed good conduct. Failure to post a bond meant jail. Misbehavior after posting meant 00:24:45.189 --> 00:24:51.261 - forfeiture. So from these laws, the government made three claims. That these laws targeted habitual 00:24:51.261 --> 00:24:55.998 - drunkards for the same reason 922G3 targeted unlawful users of whatever drug. 00:24:56.578 --> 00:25:03.373 - because they regularly use intoxicants. They existed to protect the public from unusually dangerous 00:25:03.373 --> 00:25:10.372 - people prone to violent crime, and that they operated as 922G3 by placing somewhere that they couldn't 00:25:10.372 --> 00:25:17.167 - bear arms, in other words, temporary disarmament. So the question was, was that good enough to make 00:25:17.167 --> 00:25:23.486 - the statute constitutional as applied to someone like Hamani? But the Supreme Court said no. 00:25:24.354 --> 00:25:31.066 - So all nine of them said no, and that happens very rarely, especially now. They said this analogy failed 00:25:31.066 --> 00:25:37.330 - every time. First of all, they said a habitual drunkard at the founding wasn't a regular drinker. 00:25:37.330 --> 00:25:43.722 - He was, and he had to be, someone incapacitated by drink. Why was the bar so high? Because everyone 00:25:43.722 --> 00:25:50.241 - in America in the early days drank prodigiously. John Adams took cider with breakfast. Washington had 00:25:50.241 --> 00:25:52.990 - Madeira in the evening. A secretary of war 00:25:53.090 --> 00:25:59.581 - Estimated in 1829, the three quarters of the nation's laborers drank several ounces of spirits daily. 00:25:59.581 --> 00:26:06.072 - Water wasn't safe to drink. The American Temperance Society classified 12 ounces of hard liquor a day 00:26:06.072 --> 00:26:12.499 - as merely occasional drunkenness. 24 ounces made you quote unquote confirmed. So the historical laws 00:26:12.499 --> 00:26:19.117 - keyed on the frequency, the function of drink, not its frequency. And 922G3 on the government's account 00:26:19.117 --> 00:26:21.790 - requires no showing of incapacity at all. 00:26:22.818 --> 00:26:29.474 - So this is the rejection that should interest us most, and the one that media missed in their coverage 00:26:29.474 --> 00:26:36.130 - of this case. The founding era law wasn't that he uses a substance. He's so far gone that he can't run 00:26:36.130 --> 00:26:42.851 - his own life or do much of anything else. So whatever else you think, the court's drawing a distinction 00:26:42.851 --> 00:26:49.313 - that the recovery field also draws between use and disorder, between consumption and impairment. So 00:26:49.313 --> 00:26:52.350 - the court put it in terms that we should feel. 00:26:52.738 --> 00:26:59.367 - How much marijuana does Jimani use? At what potency and to what effect? Is he routinely able to manage 00:26:59.367 --> 00:27:05.803 - his affairs? Is he a risk to his family? Does he use just a mild gummy as a sleep aid a few times a 00:27:05.803 --> 00:27:12.433 - week? We don't know. And the government can't say it doesn't matter. They have to have a higher proof. 00:27:12.433 --> 00:27:18.869 - The Supreme Court also said these old laws weren't about public danger. They said the vagrancy laws 00:27:18.869 --> 00:27:20.542 - were about work and vice. 00:27:21.602 --> 00:27:28.441 - They targeted people who didn't meet the societal expectations meant for those who worked. They aimed 00:27:28.441 --> 00:27:35.414 - at productivity. The guardianship and commitment statutes were protective. They aimed to protect people 00:27:35.414 --> 00:27:42.320 - from themselves, not to protect the public. And finally, the surety statutes that were meant to ensure 00:27:42.320 --> 00:27:46.142 - good behavior, they were about scandal and not violence. 00:27:47.234 --> 00:27:54.271 - These bonds covered everything from quote unquote haunting body houses to eavesdropping to public cursing 00:27:54.271 --> 00:28:01.109 - and blasphemy. They didn't require a threat of violence. They protected the community from scandal and 00:28:01.109 --> 00:28:07.747 - vice and offenses against good morals. And so again, not on par. The third basis on which the court 00:28:07.747 --> 00:28:14.651 - rejected this analogy, they said the old laws gave you a hearing first. A vagrant went to the workhouse 00:28:14.651 --> 00:28:16.510 - only after being convicted. 00:28:16.962 --> 00:28:23.130 - A guardianship only came into effect after proceedings were held in a probate court or something like 00:28:23.130 --> 00:28:29.359 - that. A surety bond required a hearing before a justice of the peace. But 922G3 provides none of that. 00:28:29.359 --> 00:28:35.467 - On the government's account, it strips rights the instant a person becomes an unlawful user. And the 00:28:35.467 --> 00:28:41.636 - ban lasts until the use stops. A criminal trial only comes later. And the person has already violated 00:28:41.636 --> 00:28:44.478 - a ban that no one has ever told them attached. 00:28:46.722 --> 00:28:54.776 - So, and finally, Rejection 4. The statute undercuts its own premise. Section 922G3 defines the class 00:28:54.776 --> 00:29:02.830 - of people to which it applies by reference to the Controlled Substance Act. The Controlled Substance 00:29:02.830 --> 00:29:11.283 - Act says it was passed to protect the health and general welfare of the American people. And that statute 00:29:11.283 --> 00:29:12.958 - schedules substances 00:29:13.090 --> 00:29:20.257 - based on abuse potential, accepted medical use, precursor status, and public health risk. They're not 00:29:20.257 --> 00:29:27.353 - scheduled on the basis of violence. And so the court noted it's far from obvious that a statute that 00:29:27.353 --> 00:29:34.730 - defines itself this way is limited to those who are catically and unusually dangerous or concerns itself 00:29:34.730 --> 00:29:41.054 - with anything based on dangerousness. So let's be clear about what Hamani did not decide. 00:29:43.170 --> 00:29:49.846 - The opinion calls itself narrow and then says it leaves a number of decisions open. It says it doesn't 00:29:49.846 --> 00:29:56.458 - decide anything for people quote unquote addicted to a substance. The government never alleged Hamani 00:29:56.458 --> 00:30:03.069 - was a quote unquote addict. And so it says the disarmament of drug addicts is not before us. Nor does 00:30:03.069 --> 00:30:09.681 - it decide anything for people who are presently intoxicated. So nothing protects possessing a firearm 00:30:09.681 --> 00:30:10.718 - while impaired. 00:30:11.810 --> 00:30:19.506 - Also, the court did not decide whether the government could charge if they did have actual proof that 00:30:19.506 --> 00:30:27.503 - Hamani's drug use had made him dangerous. Or if, for example, fentanyl, if they have proof that a certain 00:30:27.503 --> 00:30:35.425 - drug always makes people dangerous, if that in fact exists. Also, it does not decide anything if someone 00:30:35.425 --> 00:30:40.254 - has a past drug felony or past convictions. Finally, they said, 00:30:40.386 --> 00:30:47.782 - Congress is always free to write new laws about particular drugs if they determine that users of certain 00:30:47.782 --> 00:30:54.825 - drugs pose a special risk of violence or misuse with firearms. So all of this should really get our 00:30:54.825 --> 00:31:02.080 - attention. The Supreme Court protected the recreational user, but they expressly declined to reach the 00:31:02.080 --> 00:31:10.110 - person with the diagnosis. That's really interesting. That's the inversion of how this field is supposed to work. 00:31:11.106 --> 00:31:18.141 - The recovery field allocates protection and care to those with the diagnosis. That's how it's supposed 00:31:18.141 --> 00:31:25.449 - to work. Under the ADA and every clinical framework that we use, the diagnosis is what unlocks protection, 00:31:25.449 --> 00:31:32.553 - it unlocks treatment and accommodation. But this is the prong the court left standing and didn't touch. 00:31:32.553 --> 00:31:39.383 - So this is a little bit about, if you guys take the slides later, what the court said. Interesting, 00:31:39.383 --> 00:31:41.022 - I'll just focus on two. 00:31:41.474 --> 00:31:48.561 - Jackson, I think, hits the closest to a public health holding. She argued, why are we looking at 1791 00:31:48.561 --> 00:31:55.509 - and 1868 for this? How can we compare laws that were written that long ago when we have all of this 00:31:55.509 --> 00:32:02.110 - medical knowledge today? She argues that we should come up with a better test. I agree. Alito, 00:32:02.110 --> 00:32:04.542 - of all people, Justice Alito said, 00:32:04.802 --> 00:32:12.877 - Marijuana use today is like alcohol use at the founding. It's widespread, increasingly socially accepted, 00:32:12.877 --> 00:32:20.647 - and broadly tolerated by law enforcement, and stops. So two interesting statements. So this brings us 00:32:20.647 --> 00:32:28.494 - to two ways of deciding who is dangerous. We have the same question and two different methods. So here 00:32:28.494 --> 00:32:33.598 - they are side by side. Two different ways of, let me go over here. 00:32:36.386 --> 00:32:43.565 - of asking the question of who is dangerous. So the law looks at, is this risk consistent with our historical 00:32:43.565 --> 00:32:50.350 - tradition of firearm regulation to find out who is dangerous? But this, our field, the recovery field, 00:32:50.350 --> 00:32:57.134 - says, does this person have a disorder? How severe is it? What is their risk? And other questions that 00:32:57.134 --> 00:32:59.966 - look at individuals. What evidence counts? 00:33:00.194 --> 00:33:08.182 - Law looks at statutes, treatises, court records, again, from 1791 and 1868, whereas the recovery field, 00:33:08.182 --> 00:33:16.477 - DSM-5 criteria, ASAM placement criteria, evidence-based screening tools, risk assessment, outcome research. 00:33:16.477 --> 00:33:24.465 - Units of analysis. Well, we look at two categories of people, but compare it across two centuries. This 00:33:24.465 --> 00:33:29.918 - looks like historical fiction that you might find in Barnes and Noble. 00:33:30.082 --> 00:33:37.187 - But recovery field looks at one person followed over time. Time orientation, very different. We've already 00:33:37.187 --> 00:33:44.092 - looked at separated by two centuries. What impairment does? Well, the historical analogs that law looks 00:33:44.092 --> 00:33:50.732 - at, they're tied to incapacity. Impairment in the recovery field is just but one criteria among 11. 00:33:50.732 --> 00:33:58.302 - And severity is on a spectrum. It's not a binary on-off switch in the recovery community. That's woefully simple. 00:33:58.498 --> 00:34:04.727 - What recovery does? Well, in law, there's no doctrinal category for it. The analysis has no place to 00:34:04.727 --> 00:34:11.326 - record it because it didn't exist in 1791. But in the recovery field, it's the entire objective. Remission 00:34:11.326 --> 00:34:17.987 - is a defined, measurable status, which is on a spectrum like everything else and which has very complicated 00:34:17.987 --> 00:34:24.401 - assessments and definitions. Who carries the burden? In law, that's the government. But in the clinical 00:34:24.401 --> 00:34:28.286 - field, that's shared, the person, the program, and the system. 00:34:29.282 --> 00:34:37.011 - Working vocabulary, the law makes me get a bad taste in my mouth. Habitual, drunkard, unlawful user, 00:34:37.011 --> 00:34:44.740 - addicted to, dangerous. Those aren't healthy healing words. But in the clinical field, substance use 00:34:44.740 --> 00:34:52.393 - disorder, person in recovery, and sustained remission, those are evidence-based terms. So it's like 00:34:52.393 --> 00:34:55.454 - whiplash. What are we doing in the law? 00:34:57.314 --> 00:35:03.760 - The diagnosis, and this hits on a point that I made before, the diagnosis is the exposure. That's the 00:35:03.760 --> 00:35:10.080 - first paradox, and it's the most important one, now in this post-law segment of my presentation. In 00:35:10.080 --> 00:35:16.778 - the clinical world, the diagnosis is supposed to protect. It's the gateway to treatment. It's the gateway 00:35:16.778 --> 00:35:22.782 - to coverage. It governs everything. You can't get insurance, for example, without a diagnosis. 00:35:22.946 --> 00:35:29.523 - Substance use disorder can be a disability under the ADA, under Section 504. Naming it is the first 00:35:29.523 --> 00:35:36.363 - step of nearly every program. But in 922G3, the diagnosis exposes. Unlawful user is the prong the court 00:35:36.363 --> 00:35:43.137 - narrowed, but addicted to is the prong the court expressly refused to reach. The recreational user got 00:35:43.137 --> 00:35:49.714 - constitutional protection. The person with the disorder didn't. A client who says, I'm an addict in 00:35:49.714 --> 00:35:52.542 - a group is using the language of recovery. 00:35:52.994 --> 00:35:58.858 - It is also word for word the language of the statutory prong the Supreme Court left standing and the 00:35:58.858 --> 00:36:04.953 - language it abandoned. So here is the core finding. And if you should take any sentence out of the room, 00:36:04.953 --> 00:36:10.933 - I want it to be this one. This benefit runs inverse to clinical severity. A regular cannabis user with 00:36:10.933 --> 00:36:16.971 - no diagnosis and no record gets substantial protection, but a person who meets criteria for a substance 00:36:16.971 --> 00:36:22.718 - use disorder, they get nothing. They get a footnote that says, we're not going to address you yet. 00:36:23.490 --> 00:36:30.815 - A person with a prior drug felony gets nothing from the Hamani case. But in other words, a person who's 00:36:30.815 --> 00:36:38.352 - adjudicated or civilly committed for substance-related reasons comes off actively worse positioned because 00:36:38.352 --> 00:36:45.959 - the court goes out of its way to protect recreational users. So that's not how our field allocates concern. 00:36:45.959 --> 00:36:53.214 - Severity is supposed to, in clinical terms, unlock care. Severity in this legal frame unlocks exposure 00:36:53.890 --> 00:37:00.264 - And this reason isn't malice or ignorance. It follows from the court's own historical backwards logic. 00:37:00.264 --> 00:37:06.886 - Because the historical tradition is key to incapacity. The closer a real person comes to that description, 00:37:06.886 --> 00:37:13.137 - the better the government's analogy gets. And that leads to disarmament, incapacity, and punishment. 00:37:13.137 --> 00:37:19.449 - So then there is the group doing everything right. What do we do with the patient who's stabilized on 00:37:19.449 --> 00:37:21.182 - methadone or buprenorphine? 00:37:21.634 --> 00:37:27.687 - who's taking a lawfully prescribed controlled substance. Well, the regulatory definition of unlawful 00:37:27.687 --> 00:37:33.739 - user turns on use that is unlawful or outside a valid prescription, which is why lawfully prescribed 00:37:33.739 --> 00:37:40.091 - medication for opioid use disorder shouldn't make someone an unlawful user. But the status has two prongs 00:37:40.091 --> 00:37:46.443 - joined by or, and the second is addicted to. So whether a person in stable medication-supported remission 00:37:46.443 --> 00:37:50.878 - is addicted to a controlled substance is a question with no clean answer. 00:37:51.330 --> 00:37:58.453 - Hamani pointedly doesn't supply one. So the person who follows every recommendation the recovery field 00:37:58.453 --> 00:38:04.954 - makes sits in the most ambiguous position here. And so that's a referral trigger, not a topic 00:38:04.954 --> 00:38:12.008 - for reassurance. So one last thing, and it's about records and not language. None of this is a reason 00:38:12.008 --> 00:38:17.886 - to change how anyone talks to a recovery group or to document things less precisely. 00:38:18.434 --> 00:38:25.769 - It's a reason to know confidentiality rules cold. 42 CFR part two exists precisely because SUD treatment 00:38:25.769 --> 00:38:32.825 - records carry legal consequences that other medical records don't. And they're substantially revised 00:38:32.825 --> 00:38:39.811 - to align with HIPAA after the CARES Act with a compliance deadline in early 2026. So we have to ask 00:38:39.811 --> 00:38:47.006 - ourselves, who here knows right now what your program does if law enforcement asks for client records? 00:38:47.522 --> 00:38:56.365 - That's a very important question. So the second paradox, and this one protects our credibility, so it's 00:38:56.365 --> 00:39:05.463 - also important, would be to believe that it's easy to leave here thinking that the court's simply ignorant 00:39:05.463 --> 00:39:14.221 - about addiction. This isn't accurate, and it's not useful to teach. What the majority were looking for 00:39:14.221 --> 00:39:15.326 - in Hamadi is 00:39:15.522 --> 00:39:21.622 - And what it found is, quote unquote, a functional impairment standard. In other words, the court locked 00:39:21.622 --> 00:39:28.075 - onto a standard of someone who's incapable of conducting affairs, someone who lost the power of self-control. 00:39:28.075 --> 00:39:34.117 - And then they held the government to proving that standard. Hamani won because the government couldn't 00:39:34.117 --> 00:39:40.217 - show he was impaired in any way that mattered. The clinical framework and the Hamani framework actually 00:39:40.217 --> 00:39:43.326 - agree on one point. Use is not the same as disorder. 00:39:43.778 --> 00:39:49.988 - Frequency alone tells you very little about dangerousness. What matters is what the substance does to 00:39:49.988 --> 00:39:56.077 - a person. Categorical status is a poor proxy for individual risk. But they can also be different in 00:39:56.077 --> 00:40:02.530 - dangerous ways. The court reads incapacity from 19th century probate records. You read it from a clinical 00:40:02.530 --> 00:40:08.984 - interview. The court asks whether a category ever existed. You ask whether this person is impaired today. 00:40:08.984 --> 00:40:13.246 - And the court has no mechanism at all for the person who gets better. 00:40:13.922 --> 00:40:20.311 - So it's worth adding what contemporary medicine actually says, because the court never asks. DSM-5 describes 00:40:20.311 --> 00:40:25.880 - a spectrum disorder built for impaired control, social and occupational impairment, risky use, 00:40:25.880 --> 00:40:31.742 - and pharmacological phenomenon, including tolerance and withdrawal, that range from mild to severe. 00:40:32.418 --> 00:40:37.744 - ASAM describes addiction as a treatable chronic medical disease involving neurobiology, genetics, 00:40:37.744 --> 00:40:43.450 - environment, and experience characterized by compulsive engagement despite harmful consequences. Neither 00:40:43.450 --> 00:40:49.156 - of these definitions contains dangerousness to others as part of that definition. Addiction is a disease 00:40:49.156 --> 00:40:54.917 - state. Dangerousness is a risk assessment. One does not logically establish the other. So the case really 00:40:54.917 --> 00:41:00.732 - contains two independent questions, a clinical one and a regulatory one, and the historical method managed 00:41:00.732 --> 00:41:01.982 - to keep them separate. 00:41:06.882 --> 00:41:12.402 - This is something I'll skip through very quickly. This is an example of another case with what happens 00:41:12.402 --> 00:41:17.923 - with the law's approach. Melinda Vincent was convicted of bank fraud roughly 15 years ago, writing bad 00:41:17.923 --> 00:41:23.390 - checks during active addiction. She completed treatment, earned an undergrad degree, and two graduate 00:41:23.390 --> 00:41:29.017 - degrees. She founded a harm reduction coalition, and she started a counseling practice. The 10th Circuit 00:41:29.017 --> 00:41:29.982 - held that a 922G1 00:41:30.210 --> 00:41:36.312 - statute applied to her consistently with the Second Amendment. So after multiple relistings, the Supreme 00:41:36.312 --> 00:41:42.529 - Court denied the review of her case in April 2026, along roughly a dozen other similar felon in possession 00:41:42.529 --> 00:41:48.457 - petitions. By every other measure, this field uses, this is what success looks like. It has sustained 00:41:48.457 --> 00:41:54.326 - remission, education, employment, and a career spent giving other people the same chance. But by the 00:41:54.326 --> 00:41:59.614 - measure that governs the statute, she has a felony conviction, and the inquiry ends there. 00:41:59.810 --> 00:42:06.369 - The historical analog analysis asks what the category is, not what has happened to the person since. 00:42:06.369 --> 00:42:13.058 - And the point isn't that the courts are cruel or that the Supreme Court was wrong to deny review. It's 00:42:13.058 --> 00:42:19.618 - that the framework has no feel for and then she recovered. That's just a blank. 15 years of evidence 00:42:19.618 --> 00:42:25.982 - about who a person became doesn't fit anywhere in this analysis. The law is just blind to it. So, 00:42:27.138 --> 00:42:33.754 - Again, a little bit more, if you have the slide deck later, two justices actually make the argument 00:42:33.754 --> 00:42:40.437 - that law should not be blind to it. So there are real client stakes attached to this holding. If you 00:42:40.437 --> 00:42:47.384 - ask clients questions, they're gonna have real answers. I'm sorry, clients are gonna have real questions 00:42:47.384 --> 00:42:54.133 - about how this applies to them. A client might say, I heard the Supreme Court legalize guns and weed, 00:42:54.133 --> 00:42:55.390 - so I'm good to go. 00:42:56.066 --> 00:43:04.560 - A client might ask you what legal category they fit into. And you might ask yourself, what would you 00:43:04.560 --> 00:43:13.137 - want a judge to know about your clients that the law's framework isn't ready to hear or can't fit in, 00:43:13.137 --> 00:43:21.883 - and how you're going to language that so the legal framework can hear that. So one of the things I want 00:43:21.883 --> 00:43:24.574 - to cover quickly in wrapping up 00:43:25.122 --> 00:43:32.182 - is what has changed since Hamani. In the aftermath, the federal government can't prosecute someone under 00:43:32.182 --> 00:43:39.108 - the quote unquote unlawful user prong on regular marijuana use alone without more. And this even holds 00:43:39.108 --> 00:43:46.034 - in statutes where marijuana is illegal. Hamani's own state was Texas, so state legalization wasn't the 00:43:46.034 --> 00:43:50.270 - basis of the ruling and the holding travels. Medical marijuana 00:43:50.562 --> 00:43:56.775 - under state licensed and FDA approved marijuana drug products are moved to schedule three effective 00:43:56.775 --> 00:44:02.989 - of April 28th, 2026. And there's a federal rights restoration process that I'll talk about a little 00:44:02.989 --> 00:44:09.450 - later on under 925C that's functional again for the first time in about 30 years. That just came online 00:44:09.450 --> 00:44:15.912 - on April 26th, sorry, August 26th, 2026. I'll hit that as a last thing in the presentation. But there's 00:44:15.912 --> 00:44:20.510 - a lot of things that did not change and the media isn't clear about this. 00:44:20.802 --> 00:44:27.753 - State law didn't change. Possession, permits, carry, and permit applications all are untouched, irrespective 00:44:27.753 --> 00:44:34.449 - of marijuana. The firearms purchase form is untouched. The addicted to quote unquote prong is untouched. 00:44:34.449 --> 00:44:41.145 - Drug felonies still disarm. Adjudication and commitment still triggers federal prohibitions on firearms. 00:44:41.145 --> 00:44:47.522 - And most marijuana remains schedule one. One more category that's entirely unaffected is conditions 00:44:47.522 --> 00:44:48.542 - of supervision. 00:44:49.058 --> 00:44:55.642 - So programs that serve drug court participants, people on probation and parole, or people in diversion 00:44:55.642 --> 00:45:02.097 - are not affected by Hamani. Hamani does almost nothing for them. So a supervising court can prohibit 00:45:02.097 --> 00:45:08.745 - firearm possession as a condition of release, and violating it is a supervision violation, not a Second 00:45:08.745 --> 00:45:15.712 - Amendment question. That also goes for facility policies, sober living house rules, and employment policies. 00:45:15.712 --> 00:45:17.182 - The most misunderstood 00:45:17.442 --> 00:45:23.793 - I think here is the state law point. This ruling is about prosecution, not eligibility. This is just 00:45:23.793 --> 00:45:30.208 - a quick slide that I won't spend much time on, again, for your identification afterwards. The firearm 00:45:30.208 --> 00:45:36.685 - purchase form is called ATF form 4473. It's the mandatory firearms transaction record. It asks whether 00:45:36.685 --> 00:45:43.099 - the buyer is an unlawful user of or addicted to marijuana or any other controlled substance. When you 00:45:43.099 --> 00:45:46.558 - sign this form, it is signed under penalty of perjury. 00:45:46.978 --> 00:45:54.391 - A false answer is a crime and can be charged independently under a different federal statute, whether 00:45:54.391 --> 00:46:02.023 - or not the underlying possession of the firearm was ever prosecutable. The form has not cut up to Hamani 00:46:02.023 --> 00:46:09.291 - yet. So ATF said on the day that the case came down that it was reviewing the ruling. However, they 00:46:09.291 --> 00:46:15.614 - have not revised the form. And so I just wanted to give a caution about that. Finally, 00:46:16.706 --> 00:46:23.421 - This is one thing on your map that did not exist a month ago. On August 20th, 2026, the Justice Department 00:46:23.421 --> 00:46:29.948 - published a final rule creating a working process that's called Section 925C. This is a statutory route 00:46:29.948 --> 00:46:36.224 - for someone called a, quote, prohibited person, in other words, someone with a prior conviction, to 00:46:36.224 --> 00:46:42.813 - apply for restoration of federal firearm rights. It took effect September 21st, 2026, or it takes effect 00:46:42.813 --> 00:46:46.014 - next month. It's going to be rolled out in stages. 00:46:46.562 --> 00:46:52.680 - It's administered by the Office of the Pardon Attorney rather than the ATF. This is made functional 00:46:52.680 --> 00:46:58.860 - again after three decades of dormancy. It provides individualized review of whether the applicant is 00:46:58.860 --> 00:47:05.100 - likely to be dangerous and whether relief would be contrary to the public interest. There is a modest 00:47:05.100 --> 00:47:11.219 - fee for it. It does have an indigency waiver. What matters here, however, is that this is the first 00:47:11.219 --> 00:47:13.054 - federal mechanism in 30 years 00:47:13.154 --> 00:47:20.571 - that can actually receive evidence about who a person has become after they have a substance use conviction. 00:47:20.571 --> 00:47:27.444 - Conduct since here is disqualifying. So the government will look at record and reputation, character 00:47:27.444 --> 00:47:34.726 - references. This is an administrative process doing exactly the work that the government's constitutional, 00:47:34.726 --> 00:47:40.510 - that the Supreme Court's constitutional framework in Hamadi has no room for. And so, 00:47:40.674 --> 00:47:48.010 - It's addressed by regulation rather than constitutional law. There are waiting periods of five to 10 00:47:48.010 --> 00:47:55.491 - years after an offense. So in other words, you can't apply until five to 10 years after you commit the 00:47:55.491 --> 00:48:02.827 - offense. There is a presumption that someone with a serious or violent offense may not ever qualify. 00:48:02.827 --> 00:48:08.638 - Drug trafficking is going to get you a 10-year application waiver, for example. 00:48:09.122 --> 00:48:15.841 - The documentation is extensive, but for, can you imagine if this were available for employment, housing, 00:48:15.841 --> 00:48:22.240 - benefits waivers, child custody, that kind of thing. It's a step in the right direction for looking 00:48:22.240 --> 00:48:28.831 - at what people have done to change their lives. It also does not touch state prohibitions. Someone can 00:48:28.831 --> 00:48:34.206 - have their rights restored federally and still be barred in states where they live. 00:48:38.946 --> 00:48:45.849 - So what do you do when your client asks you about firearm rights quickly? Name that a legal question 00:48:45.849 --> 00:48:52.684 - exists and that it changed recently. You can describe the categories in general terms. You can know 00:48:52.684 --> 00:48:59.930 - and explain your program's confidential obligations under 42 CFR Part 2. You can maintain a live referral 00:48:59.930 --> 00:49:07.038 - list, the federal defender, state public defender, legal aid, reentry clinics, and nail a 925C process. 00:49:07.138 --> 00:49:13.429 - that where I work, the IU Maurer School of Law, we also have an expungement clinic. And we do expunge 00:49:13.429 --> 00:49:19.597 - offenses on the state level. In other words, prepare a warm handoff to those resources. Know what's 00:49:19.597 --> 00:49:26.258 - outside your scope. And that includes telling anyone whether or not they are a prohibited person, providing 00:49:26.258 --> 00:49:32.981 - guidance on how to answer form 4473, predicting whether a prosecution would succeed, advising on possession, 00:49:32.981 --> 00:49:36.990 - responding to a law enforcement records request without counsel, 00:49:37.410 --> 00:49:44.851 - reassuring you're fine now. And so none of this changes, of course, what you do clinically. So volunteer 00:49:44.851 --> 00:49:52.221 - safety planning is unaffected. Firearm access is still a recognized risk factor in overdose and suicide 00:49:52.221 --> 00:49:59.307 - prevention. Collaborative voluntary conversations about temporary storage remain standard practice. 00:49:59.307 --> 00:50:05.118 - These are clinical matters. Nothing here also obliges anyone to give up anything. 00:50:05.698 --> 00:50:11.541 - These conversations work when they're the client's choice, made with their family on their terms. Your 00:50:11.541 --> 00:50:17.213 - assessments will still assess what they always assess, severity, impairment, comorbidity, and risk. 00:50:17.213 --> 00:50:23.113 - The court doesn't redefine any clinical construct they don't have any authority to. Mandatory reporting 00:50:23.113 --> 00:50:28.842 - and duty to protect obligations are untouched because those are governed by state law, and state law 00:50:28.842 --> 00:50:34.174 - did not change here. And finally, if your organization has a trained lethal means curriculum, 00:50:34.722 --> 00:50:43.175 - I think it's important to tell clients about it. So what will I be watching over the coming year? I'll 00:50:43.175 --> 00:50:51.627 - be looking for the revised form 4473 to come down. I'll be looking for broader marijuana rescheduling. 00:50:51.627 --> 00:50:58.110 - A DEA hearing began on June 29th, 2026. But rescheduling is not de-scheduling. 00:50:58.530 --> 00:51:05.273 - This statute covers unlawful use of any controlled substance on any schedule. So unlawful use of a schedule 00:51:05.273 --> 00:51:11.954 - three substance is still unlawful use. Only removing marijuana from the CSA entirely would take it outside 00:51:11.954 --> 00:51:18.509 - 922G3. I'll be looking in a law sense for the first individualized dangerousness prosecutions. The court 00:51:18.509 --> 00:51:25.003 - invited them to take place. So I'll be looking to see whether a specific substance like methamphetamine 00:51:25.003 --> 00:51:28.062 - or fentanyl, I think those are the obvious ones, 00:51:28.162 --> 00:51:35.496 - categorically renders users dangerousness. We're going to be looking at other substances than marijuana. 00:51:35.496 --> 00:51:42.971 - And I think this is going to result in a battle of experts on pharmacology and violence and a link between 00:51:42.971 --> 00:51:50.026 - the two. I'm looking for 925C as a rollout. I'm going to watch how many people actually get this. So 00:51:50.026 --> 00:51:56.382 - I think we'll be able to see within a year whether this is a genuine path or a paper path. 00:51:57.058 --> 00:52:03.121 - I'm looking to see whether it has a 2% grant rate or something more substantial. Because you're going 00:52:03.121 --> 00:52:09.421 - to be advising people whether or not to go through this process, because it's going to have a substantial 00:52:09.421 --> 00:52:15.365 - burden of paperwork. And if it has a 2% rate of grant, I'm not going to advise anyone I really care 00:52:15.365 --> 00:52:21.369 - about to go through that paperwork if it's not going to succeed. So a few things to carry out of the 00:52:21.369 --> 00:52:24.222 - room. And I realize that's really hard to read. 00:52:25.250 --> 00:52:30.638 - First of all, status versus conduct. The government can't impose a serious legal disability on a category 00:52:30.638 --> 00:52:35.721 - of persons without showing that the category actually tracks the harm it claims to prevent. Second, 00:52:35.721 --> 00:52:40.855 - the Controlled Substances Act isn't carrying the weight it was built for. It was designed to protect 00:52:40.855 --> 00:52:46.090 - health and general welfare, not to establish that a class of people is unusually dangerous. And notice 00:52:46.090 --> 00:52:51.377 - how many consequences are bolted onto the CSA now. I've talked about them. Immigration, public housing, 00:52:51.377 --> 00:52:53.918 - occupational licensing, child welfare, et cetera. 00:52:54.018 --> 00:52:59.958 - Each takes a public health classification and uses it as a proxy for something it was never designed 00:52:59.958 --> 00:53:06.134 - to resolve. Three, whose expertise counts and legal arguments has changed? We've moved from epidemiology 00:53:06.134 --> 00:53:12.486 - and risk research to legal history. This redistributes authority away from clinicians and social scientists 00:53:12.486 --> 00:53:18.485 - towards legal historians. Four, the disease model has never been automatically rights protective, and 00:53:18.485 --> 00:53:19.838 - we're seeing this now. 00:53:20.386 --> 00:53:26.623 - The history that the court digs up is history of guardianship, stigma, asylum commitment, and lost legal 00:53:26.623 --> 00:53:32.860 - capacity. It's an illness is not by itself a rights protective argument, and I think we too often assume 00:53:32.860 --> 00:53:39.216 - that it is. Here, the rights protective arguments are autonomy, individualized proof, and the government's 00:53:39.216 --> 00:53:45.216 - burden and not pathology. Five and last, we have to be scrupulous about what this case does not say. 00:53:45.216 --> 00:53:48.958 - It's not a holding that substance use and firearms mix safely, 00:53:49.538 --> 00:53:57.480 - The court says that that's not a question that it addresses. It doesn't weigh the risk literature because 00:53:57.480 --> 00:54:05.271 - the framework gives it nowhere to do that. So anyone who cites this case as evidence that that happened 00:54:05.271 --> 00:54:10.366 - is misreading it. And I'll conclude there. And I'll take questions. 00:54:21.922 --> 00:54:29.559 - No, but I think maybe on an ancillary note, the red flag laws or the Jake Laird laws, as they're known 00:54:29.559 --> 00:54:37.419 - in Indiana, if someone has a history of a certain substance, of use of a certain substance, like fentanyl 00:54:37.419 --> 00:54:45.205 - meth, et cetera, if it's ever linked to dangerousness, for example, in those individualized prosecutions 00:54:45.205 --> 00:54:51.582 - I just talked about, I think that might become a criteria for red flag determinations 00:54:51.682 --> 00:54:59.027 - if that link is ever made in individualized prosecutions. And this is why I think it's very dangerous 00:54:59.027 --> 00:55:06.300 - to link pharmacology to dangerousness for any particular substances, because the red flag law should 00:55:06.300 --> 00:55:13.645 - be based on individualized assessments, not, oh my gosh, he's on X substance, let's take his firearms 00:55:13.645 --> 00:55:19.550 - away. Austin asks a question, if that's all right. In your discussion of the CSA, 00:55:19.810 --> 00:55:27.554 - You very briefly mentioned immigration. And it's really clear that both state and federal policy or 00:55:27.554 --> 00:55:35.453 - practice is viewing residency as a means to define dangerousness. Can you expand a little bit on that 00:55:35.453 --> 00:55:43.584 - as it relates to the CSA? Yes. I would say those two things, like 1791 and drug use, have nothing really 00:55:43.584 --> 00:55:47.998 - to do with each other. And so their proxies as something 00:55:48.258 --> 00:55:56.582 - They're entirely specious proxies. So I guess I wish I could expand on that, but I think that the government 00:55:56.582 --> 00:56:04.295 - here is just bootstrapping something that it shouldn't to a category to be used as a filter, because 00:56:04.295 --> 00:56:12.085 - a better filter doesn't exist, but yet it needs a filter. But the two in actuality have nothing to do 00:56:12.085 --> 00:56:17.278 - with each other. So in practice, where we're asking for our clients 00:56:17.634 --> 00:56:25.542 - proof of residency, that's just a bootstrap legal guideline. Yes, because obviously these affect the 00:56:25.542 --> 00:56:33.685 - same harms no matter where we live. And in actuality, it's being used to deny care that everyone should 00:56:33.685 --> 00:56:41.749 - qualify for. Excuse me. I was under the impression that the federal laws overrides the state laws. But 00:56:41.749 --> 00:56:47.230 - I believe what I heard was you still get prosecuted during the state. 00:56:47.394 --> 00:56:55.218 - And that seems, I guess, a little bit backwards, doesn't it? Yes, there is a system of state fire and 00:56:55.218 --> 00:57:03.348 - law. And the federal law can prohibit people for federal crimes. The state can have its own disqualifying 00:57:03.348 --> 00:57:10.942 - measures as well. And so you can be disqualified both on the state level and on the federal level. 00:57:11.106 --> 00:57:18.426 - It can also work in the reverse way. If you have state crimes that would disqualify you, you can have 00:57:18.426 --> 00:57:25.747 - those crimes expunged but still be prohibited on the federal level. But there's two tiers. Thank you. 00:57:25.747 --> 00:57:33.139 - It's often very frustrating to people to find that out. I just wanted to state that I think it's crazy 00:57:33.139 --> 00:57:34.718 - that we're looking at 00:57:35.138 --> 00:57:41.685 - things from 1700s when animals had more rights than women and children then? I will note that in the 00:57:41.685 --> 00:57:48.362 - 1700s, talking about animals having rights, we also prosecuted animals for witchcraft. So we were very 00:57:48.362 --> 00:57:55.039 - sophisticated legally in the 1700s. We totally knew what we were doing. Yeah, totally. I mean, if your 00:57:55.039 --> 00:57:59.966 - cow got sick, that also meant that someone really hated you in the village. 00:58:05.890 --> 00:58:13.159 - That's where we get our medical treatment from now, folks. If you have any questions or want any other 00:58:13.159 --> 00:58:20.498 - information, I'll make my slides available to you guys. Also, if you have any questions, I'm right down 00:58:20.498 --> 00:58:27.696 - the road at Mauer Law. My last name is Madeira, like the wine. In fact, the Washington drink. So same 00:58:27.696 --> 00:58:30.942 - spelling. Thank you. Thank you so much, Jody.