All right, good morning. So my name is Dr. Jodi Madeera, or Jodi, and I'll be addressing you today on
Great Scott. The Supreme Court goes back to the future with substance use disorder. So how do I come
to be here today? This doesn't grow out of my elected office. So I'm one of a growing number of law
professors who teach Second Amendment or firearms law.
I'm the proud author of Blocher, Charles, Madeira, and Miller, the Second Amendment Gun Rights
and Regulation, which we published in 2025 from Foundation Press. I'm also the section chair for the
American Association of Law Professors, Firearms Law Section. So I've done research on and use as well.
In the integration of MAT, I've designed educational apps for college students.
and educational programs for problem solving court judges and staff through grants from foundations
and the Office of Justice Programs in the Department of Justice. So my work really sits at the intersection
of these two fields. So there's obviously tension in this title. Everyone in this room has a working
theory of who is dangerous. You build it out of assessments, you build it out of relapse histories and
a couple thousand hours from working with people in groups.
Over the past four years, the Supreme Court has been building a very different narrative of who is dangerous
out of statutes about, quote unquote, habitual drunkards from the 1700s and from 19th century probate
records, very authoritative sources for today. So in June, these two theories about who is dangerous
are modern theory that medical and recovery experience has built,
and the Supreme Court's narrative from the 1700s, they collided in a case about a young man in Texas
who used marijuana every other day and who kept a firearm in his house. And he won that case unanimously.
So today we're going to work out why he won, what it means for the clients you serve, and why the reason
he won has almost nothing to do with anything you were trained in. So first a little bit about what
this session is and what it is not.
This session is legal literacy for clinical and peer staff. It's a map of what changed starting in June
2026 and what might change in the future. A comparison of two ways of judging risk and a guide to when
to stop talking to clients and when to refer clients. I don't mean it to be legal advice to you or to
any client. It's not a substitute for a defense lawyer. It's not a position for or against firearm ownership.
And it's definitely not guidance on how to answer questions on a federal firearms purchase form. The
single most useful sentence you can carry out of this room is on the screen. The law here changed recently,
and it's still moving. I can tell you what the categories are. I cannot tell you which one you're in.
That answer has to come from a lawyer, and here's how we will get you one. So there we go.
A question before any law. If you had to decide who should not have a firearm, what would you want to
know about this person? So just take a look about this on these categories.
Thank you. So the point is not that the court is being obtuse. It's that the court is asking a different
question. You ask, is this person dangerous? Theirs is, does this restriction fit our tradition of firearm
regulation? These two questions can actually produce opposite answers about the same human being, and
both can be defensible on their own terms. So why talk about guns and drugs?
We're spending 70 minutes talking about this right now, not quite that long. But for starters, many
of your clients are going to care about this right. A third of US households have a firearm. In rural
counties, in farming, and in ranching work, among veterans and among hunters, the share is considerably
higher. Ownership is often bound up with questions of identity, with family history, and how people
understand their own competence and standing in society.
So telling someone in early recovery that entering treatment can cost them something they value that
dearly is not a small ask. And if we're going to be in that conversation at all, we really need to understand
the legal terrain. Second, it's a constitutional right. Whatever we think about firearm policy, the
Second Amendment is in the Bill of Rights, and since 2008, it's been read to protect an individual right.
So losing what we call an enumerated right, a right specified directly in the Bill of Rights,
raises the questions about what we would ask about any other issue. On what basis do we take that thing
away? Who decides whether that's taken away? By what process? For how long? Three, under the statute
I'm gonna talk about in a little bit, which is section 922G3, this right disappears the moment someone
becomes, quote unquote, an unlawful user. Without notice, without a hearing, without an order.
without a finding by anyone that this person is dangerous, regardless of what substance they take. Often,
they aren't aware that it has disappeared at all. And four, our clients are part of a structure in which
other rights are taken away like this, besides that firearm right. Housing, occupational, licensing,
immigration, employment, benefits, child welfare presumptions. It's the same framework every time.
Denial is automatic on the basis of the status as a substance user with no individual's finding,
no notice, and no mechanism for change lives. In other words, there's no way to put someone back in
the system once the status is awarded. There's no way that if, quote unquote, they change their lives,
they can get these benefits back. So why is this really a question about recovery?
Firearm law is the one place where a court has finally said out loud that this absence of process matters.
This is the clearest available illustration of a pattern that governs almost everything else. And so
that possibly makes it a lever. Hundreds of collateral consequences attached to a drug conviction. Most
of them are invisible to clients the moment they take a plea. Here and so far only here, a court has
identified the missing process as a defect
rather than an administrative detail and rather than the person themselves. My sixth reason is because
no mechanism for the person who changes is a description of the entire recovery fields problem. The
recovery field works on the proposition that people recover and that recovery should count for something.
Every assessment that is used, every level of care decision, every outcome measure a funder asks for
is built to register change over time.
A legal structure that fixes status at a moment and never reopens or reconsiders that status is the
precise opposite of that. Everyone stays prohibited. Recovery is cognizable in every area but the law.
Seven, the question isn't whether we approve. It's not whether we approve of firearm ownership or of
anyone's behavior. The question is whether the clients we serve can find out where they stand.
Right now, they mostly can't. Their acting on headlines and a wrong guess can be a felony.
Reducing this uncertainty is squarely inside our scope. Answering the underlying legal question for
every individual isn't. And so I'd like to proceed basically about the statute quickly. So what does
the law on the books look like? The statute that we're gonna talk about is called 18 USC 922 G3. These
are the words that do the work. And this is the story
This is where the story starts. Incidentally, this is the statute that Hunter Biden was convicted of
or under in 2024. So going back to the Federal Gun Control Act of 1968, it created a list of a lot of
people who couldn't own firearms. Felons, fugitives, people convicted of domestic violence. So in 1986,
Congress added another category. Anyone who quote, is an unlawful user of
or addicted to a controlled substance, any controlled substance. And the statute says, it shall be unlawful
for any person who is an unlawful user of or addicted to any controlled substance to possess in or affecting
commerce any firearm or ammunition. So three features of this text matter. First, notice that there's
two separate parts joined by or. It's an unlawful user of
and addicted to. These are different things, and a prosecutor can charge either one of them. This is
the single most important thing here. Second, we don't have in this statute a definition of what a controlled
substance is. That's borrowed wholesale from something called the Controlled Substances Act. Congress
didn't sit down here and decide what drugs make people dangerous, when they control firearms in particular.
It pointed at the Controlled Substances Act schedules and said those drugs. So whatever drugs get scheduled
for whatever reason, those drugs are in. Third, the consequences of violating this are really severe.
And here are some of the consequences. First of all, it's an automatic permanent ban on firearm ownership, this ban
comes into being the moment a person becomes an unlawful user, and it lasts until the pattern of substance
use ends. There is no hearing, no finding. In other words, no due process, no order. Second,
it's categorical. It doesn't matter what drug. It doesn't matter how often they take it. It doesn't
matter in what form or with what effect. So technically, you take a weed gummy and you're subject to
this law because marijuana is a scheduled substance. At oral argument,
In the case that I'm going to talk about, the US government conceded that a husband who regularly took
his wife's prescription ambient to sleep or a college student using a friend's Adderall to cram for
a test would both be in the prohibited class and both lose this right until they regained it, which
is almost impossible to do. Third, it's blind to the person. There's no requirement to show that someone
was ever impaired.
ever violent, ever risk to themselves, or ever handled a firearm carelessly, or ever handled a firearm
at all. And finally, it's total and scope. It bans essentially any firearm for any purpose, including
one locked in a safe at home for self-defense, including one that you would handle as a police officer,
law enforcement, et cetera. So everything a clinician is trained to assess lives in that third feature.
that being blind to the person, showing that the individual was ever impaired, violent, a risk to themselves.
So functional impairment, comorbidity, violence history, protective factors, none of it appears anywhere
in this analysis. A person who uses a mild edible on Saturdays and a person who injects fentanyl daily
occupy identical legal positions. What's at stake for someone in this category
up to 15 years in federal prison. And because this conviction is itself a felony, then it triggers another
version of the statute, 922G1, which is permanent disarmament. So a single charge converts a temporary
status into a lifetime one. It's true that people who are convicted under this subsection just account
for 5% of all people convicted under the statute. So that's not a high volume of people.
But it's a charge that sits on top of an enormously exposed population, tens of millions of regular
cannabis or marijuana users alone. So law enforcement volume against a huge exposed population is a
recipe for arbitrary and selective prosecution. And that's exactly the argument the defendant Hamani's
lawyers made here. So a little bit about why the Supreme Court decides things according to laws set
in the 1700s.
I'd like to walk you through the three cases that really matter. So way back when, from this nation
was founded up until 2008, we assumed that gun rights were built on what's called a militia connection.
In other words, you had to have some connection to militia to really have firearm rights. But along
came a case called District of Columbia versus Heller in 2008. Heller established that it's actually
not a militia linked right. It's an individual right to keep and bear arms for self-defense.
And there's another statement in that case that really mattered. There is a statement that Justice Scalia
said, almost in passing, without any analysis, that said longstanding prohibitions on the possession
of firearms by felons and the mentally ill were presumptively lawful. This turns out to be one of the
most consequential sentences in modern constitutional law. So it's why courts don't question felons
not having firearms. It's why people.
Courts don't question people with mental health illnesses being barred from having firearms. The second
case that came down is called New York State Rifle and Pistol Association versus Bruin. This was bigger
than Heller. So for about a decade after Heller, all the federal courts bumbled around and wondered
how to apply it. They finally arrived on one particular way, and they looked at how important
essentially they weighed how governments, how well governments weighed public interest when they passed
laws involving firearms. So in other words, did a firearm law that was passed, was it based on statistics,
was it based on really good empirical data on what public safety showed? So we could consider social
science data, we could consider research, and that ended with
New York State Rifle and Pistol Association versus Bruin. In that case, the court said that gives judges
too much discretion. Instead, we have to go back to what laws were on the books in 1791 or 1868. So
instead of looking at the research, the data science, the lived experience on which legislatures passed
laws, we had to compare the laws that legislatures passed today
to the laws they passed in 1791 or 1868. Why? Because 1791 was the year that the Second Amendment was
enacted into the Bill of Rights. And 1868 becomes relevant when the Bill of Rights is made applicable
to the states. So what happens, for example, when the laws relate to something that doesn't really exist
in 1791, like domestic violence?
What happens when they relate to people who legally weren't people in 1791 or 1868, people who were
slaves, people who didn't have legal property rights? And so these are some of the issues with this
test. So this test got qualified a little bit in United States versus Rahimi, where the court softened
what they meant by history and tradition a little bit.
And they said, well, you don't have to find an exact parallel to laws in 1791 or 1868. You just have
to find a law that looks sort of like this in 1791 or 1868. It's a historical analogy. It's based on
the same principles. It has to be relevantly similar, based on similar reasons why or similar effects.
And so in Rahimi,
They actually upheld a law that banned domestic violence, people who had been accused of or committed
domestic violence and were subject to protective orders or restraining orders by analogizing it to laws
that prohibited people who were dangerous in 1791 from having firearms. So that's how they got around
some of this difficulty. So here's a little bit more about the test. They looked at
Well, first of all, the government has to show that it's based on history and tradition. Government
has the burden here. Normally, in constitutional litigation, the government has to, this is a different
burden. I'll just leave it like that. So here, I think I have some information on the slides that's
different over here.
The first question is, does the Second Amendment's text cover what this person did? Are we really sure
that this has to deal with firearms law? Usually, courts just assume this is the case. And then the
second is, can the government prove a historical tradition that fits? Here, it's kind of like pin the
tail on the donkey, because the government will say, here's a law that deals with, for example, and
I'm not kidding, stealing horses.
What are some other ones? I have some examples later on in the presentation. Habitual drunkards is the
one I'll be talking about. And they say, these laws are similar based on these reasons. And so then
the court will say, well, it was really passed too late. Well, they were passed for different reasons.
And the Supreme Court will say, yes, this law is similar, or no, it's not. But there is no step where
anyone asks, historically, did this law work?
For example, there's no opportunity to consider data science to ask why legislators pass these laws.
So that's really unfortunate. This brings us to evidence. Under the old test, a government lawyer would
have arrived with epidemiology, overdose data, research on substance use and firearm injury,
suicide risk, inactive addiction. But after Bruin, this evidence has no place to go.
It's irrelevant, there's no step or anyone in the court that can receive it. So what decides cases now
are colonial and founding era statutes, 19th century state laws, legal treatises, early court decisions,
legal history scholarship about how these laws were actually used. What do you think these people know
about substance use? Very, very little, right? These laws that they're using as analogies may not have
even been passed in relationship to substance use.
What we know is that these cases are not being decided on overdose and injury mortality data. The DSM-5
doesn't even come in here. So here's the problem that this argument creates. How do you determine what
the drug laws were in 1791? There is none to argue from. Most substances that the Controlled Substances
Act regulates were unknown at the time of the founding. Cannabis, or marijuana,
is introduced in the 19th century. It was widely used as a patent medicine and prohibitions
didn't proliferate until the 20th century. The first laws that disarm people for drug use date to the
1920s. Opium wasn't only legal, it was given to people from infants all the way to the very, very elderly.
So the government had no choice in the case I'm going to talk about, but to argue by analogy from alcohol.
Everything then turned on whether an 18th century quote unquote habitual drunkard is meaningfully like
a 21st century unlawful user. So here's our introduction to United States versus Hamani, the case that
was actually decided this past July. So on its face, this was not a sympathetic case with which to challenge
922G3. The search arose from a terrorism investigation.
cocaine had been found in the Hamani household. This use was frequent rather than occasional. Several
experienced scholars predicted that the government would win. So Ali Hamani was a dual citizen of the
United States and Pakistan. He was born in Texas. He had spent most of his life in the Dallas area living
with his parents and working a steady job. In 2022, the government suspected Hamani and his family of
terrorism related activity. So the FBI searched the family home.
Hamani was fully cooperative throughout. He surrendered a firearm he kept in the house. He pointed agents
to marijuana on the property. He consented to an interview where he said he used marijuana about every
other day. Agents found cocaine in his parents' closet, so he claimed ownership of it as well. He said
his mother hid it from him, and he hadn't used any recently. More than six months later, the government
brought a single count indictment, not for terrorism, not for cocaine,
not for trafficking, the charge was possessing a firearm while he was an unlawful user of a controlled
substance. It rested entirely on his admitted marijuana use. But look at what the government didn't
allege. They didn't allege he was addicted, not that he was intoxicated when he possessed the gun. They
didn't allege that he had misused it, or that he had done anything with the firearm at all, or that
he had ever been a danger to himself or anyone else.
Everything a clinician would consider relevant was affirmatively not alleged. The government's position
was that none of it was necessary. He spent six months in jail before a district court dismissed the
charge. So, and this is a little bit about the road to the Supreme Court. The search was in 22, indicted
at February 23. It permutated all the way up to the Supreme Court in 2026, which was actually quite fast.
So the government based its case on so-called habitual drunkard laws. This is the closest thing they
had to historical analog. And they offered basically three different types. Vagrancy laws. Habitual
drunkards were sometimes swept into the quote unquote vagrant category, where they could be confined
to a workhouse or jailed.
Civil commitment and guardianship statutes. Courts could appoint a guardian over habitual drunkard's
person or estate or commit him to an asylum. And surety of good behavior. A judicial officer could require
a bond that guaranteed good conduct. Failure to post a bond meant jail. Misbehavior after posting meant
forfeiture. So from these laws, the government made three claims. That these laws targeted habitual
drunkards for the same reason 922G3 targeted unlawful users of whatever drug.
because they regularly use intoxicants. They existed to protect the public from unusually dangerous
people prone to violent crime, and that they operated as 922G3 by placing somewhere that they couldn't
bear arms, in other words, temporary disarmament. So the question was, was that good enough to make
the statute constitutional as applied to someone like Hamani? But the Supreme Court said no.
So all nine of them said no, and that happens very rarely, especially now. They said this analogy failed
every time. First of all, they said a habitual drunkard at the founding wasn't a regular drinker.
He was, and he had to be, someone incapacitated by drink. Why was the bar so high? Because everyone
in America in the early days drank prodigiously. John Adams took cider with breakfast. Washington had
Madeira in the evening. A secretary of war
Estimated in 1829, the three quarters of the nation's laborers drank several ounces of spirits daily.
Water wasn't safe to drink. The American Temperance Society classified 12 ounces of hard liquor a day
as merely occasional drunkenness. 24 ounces made you quote unquote confirmed. So the historical laws
keyed on the frequency, the function of drink, not its frequency. And 922G3 on the government's account
requires no showing of incapacity at all.
So this is the rejection that should interest us most, and the one that media missed in their coverage
of this case. The founding era law wasn't that he uses a substance. He's so far gone that he can't run
his own life or do much of anything else. So whatever else you think, the court's drawing a distinction
that the recovery field also draws between use and disorder, between consumption and impairment. So
the court put it in terms that we should feel.
How much marijuana does Jimani use? At what potency and to what effect? Is he routinely able to manage
his affairs? Is he a risk to his family? Does he use just a mild gummy as a sleep aid a few times a
week? We don't know. And the government can't say it doesn't matter. They have to have a higher proof.
The Supreme Court also said these old laws weren't about public danger. They said the vagrancy laws
were about work and vice.
They targeted people who didn't meet the societal expectations meant for those who worked. They aimed
at productivity. The guardianship and commitment statutes were protective. They aimed to protect people
from themselves, not to protect the public. And finally, the surety statutes that were meant to ensure
good behavior, they were about scandal and not violence.
These bonds covered everything from quote unquote haunting body houses to eavesdropping to public cursing
and blasphemy. They didn't require a threat of violence. They protected the community from scandal and
vice and offenses against good morals. And so again, not on par. The third basis on which the court
rejected this analogy, they said the old laws gave you a hearing first. A vagrant went to the workhouse
only after being convicted.
A guardianship only came into effect after proceedings were held in a probate court or something like
that. A surety bond required a hearing before a justice of the peace. But 922G3 provides none of that.
On the government's account, it strips rights the instant a person becomes an unlawful user. And the
ban lasts until the use stops. A criminal trial only comes later. And the person has already violated
a ban that no one has ever told them attached.
So, and finally, Rejection 4. The statute undercuts its own premise. Section 922G3 defines the class
of people to which it applies by reference to the Controlled Substance Act. The Controlled Substance
Act says it was passed to protect the health and general welfare of the American people. And that statute
schedules substances
based on abuse potential, accepted medical use, precursor status, and public health risk. They're not
scheduled on the basis of violence. And so the court noted it's far from obvious that a statute that
defines itself this way is limited to those who are catically and unusually dangerous or concerns itself
with anything based on dangerousness. So let's be clear about what Hamani did not decide.
The opinion calls itself narrow and then says it leaves a number of decisions open. It says it doesn't
decide anything for people quote unquote addicted to a substance. The government never alleged Hamani
was a quote unquote addict. And so it says the disarmament of drug addicts is not before us. Nor does
it decide anything for people who are presently intoxicated. So nothing protects possessing a firearm
while impaired.
Also, the court did not decide whether the government could charge if they did have actual proof that
Hamani's drug use had made him dangerous. Or if, for example, fentanyl, if they have proof that a certain
drug always makes people dangerous, if that in fact exists. Also, it does not decide anything if someone
has a past drug felony or past convictions. Finally, they said,
Congress is always free to write new laws about particular drugs if they determine that users of certain
drugs pose a special risk of violence or misuse with firearms. So all of this should really get our
attention. The Supreme Court protected the recreational user, but they expressly declined to reach the
person with the diagnosis. That's really interesting. That's the inversion of how this field is supposed to work.
The recovery field allocates protection and care to those with the diagnosis. That's how it's supposed
to work. Under the ADA and every clinical framework that we use, the diagnosis is what unlocks protection,
it unlocks treatment and accommodation. But this is the prong the court left standing and didn't touch.
So this is a little bit about, if you guys take the slides later, what the court said. Interesting,
I'll just focus on two.
Jackson, I think, hits the closest to a public health holding. She argued, why are we looking at 1791
and 1868 for this? How can we compare laws that were written that long ago when we have all of this
medical knowledge today? She argues that we should come up with a better test. I agree. Alito,
of all people, Justice Alito said,
Marijuana use today is like alcohol use at the founding. It's widespread, increasingly socially accepted,
and broadly tolerated by law enforcement, and stops. So two interesting statements. So this brings us
to two ways of deciding who is dangerous. We have the same question and two different methods. So here
they are side by side. Two different ways of, let me go over here.
of asking the question of who is dangerous. So the law looks at, is this risk consistent with our historical
tradition of firearm regulation to find out who is dangerous? But this, our field, the recovery field,
says, does this person have a disorder? How severe is it? What is their risk? And other questions that
look at individuals. What evidence counts?
Law looks at statutes, treatises, court records, again, from 1791 and 1868, whereas the recovery field,
DSM-5 criteria, ASAM placement criteria, evidence-based screening tools, risk assessment, outcome research.
Units of analysis. Well, we look at two categories of people, but compare it across two centuries. This
looks like historical fiction that you might find in Barnes and Noble.
But recovery field looks at one person followed over time. Time orientation, very different. We've already
looked at separated by two centuries. What impairment does? Well, the historical analogs that law looks
at, they're tied to incapacity. Impairment in the recovery field is just but one criteria among 11.
And severity is on a spectrum. It's not a binary on-off switch in the recovery community. That's woefully simple.
What recovery does? Well, in law, there's no doctrinal category for it. The analysis has no place to
record it because it didn't exist in 1791. But in the recovery field, it's the entire objective. Remission
is a defined, measurable status, which is on a spectrum like everything else and which has very complicated
assessments and definitions. Who carries the burden? In law, that's the government. But in the clinical
field, that's shared, the person, the program, and the system.
Working vocabulary, the law makes me get a bad taste in my mouth. Habitual, drunkard, unlawful user,
addicted to, dangerous. Those aren't healthy healing words. But in the clinical field, substance use
disorder, person in recovery, and sustained remission, those are evidence-based terms. So it's like
whiplash. What are we doing in the law?
The diagnosis, and this hits on a point that I made before, the diagnosis is the exposure. That's the
first paradox, and it's the most important one, now in this post-law segment of my presentation. In
the clinical world, the diagnosis is supposed to protect. It's the gateway to treatment. It's the gateway
to coverage. It governs everything. You can't get insurance, for example, without a diagnosis.
Substance use disorder can be a disability under the ADA, under Section 504. Naming it is the first
step of nearly every program. But in 922G3, the diagnosis exposes. Unlawful user is the prong the court
narrowed, but addicted to is the prong the court expressly refused to reach. The recreational user got
constitutional protection. The person with the disorder didn't. A client who says, I'm an addict in
a group is using the language of recovery.
It is also word for word the language of the statutory prong the Supreme Court left standing and the
language it abandoned. So here is the core finding. And if you should take any sentence out of the room,
I want it to be this one. This benefit runs inverse to clinical severity. A regular cannabis user with
no diagnosis and no record gets substantial protection, but a person who meets criteria for a substance
use disorder, they get nothing. They get a footnote that says, we're not going to address you yet.
A person with a prior drug felony gets nothing from the Hamani case. But in other words, a person who's
adjudicated or civilly committed for substance-related reasons comes off actively worse positioned because
the court goes out of its way to protect recreational users. So that's not how our field allocates concern.
Severity is supposed to, in clinical terms, unlock care. Severity in this legal frame unlocks exposure
And this reason isn't malice or ignorance. It follows from the court's own historical backwards logic.
Because the historical tradition is key to incapacity. The closer a real person comes to that description,
the better the government's analogy gets. And that leads to disarmament, incapacity, and punishment.
So then there is the group doing everything right. What do we do with the patient who's stabilized on
methadone or buprenorphine?
who's taking a lawfully prescribed controlled substance. Well, the regulatory definition of unlawful
user turns on use that is unlawful or outside a valid prescription, which is why lawfully prescribed
medication for opioid use disorder shouldn't make someone an unlawful user. But the status has two prongs
joined by or, and the second is addicted to. So whether a person in stable medication-supported remission
is addicted to a controlled substance is a question with no clean answer.
Hamani pointedly doesn't supply one. So the person who follows every recommendation the recovery field
makes sits in the most ambiguous position here. And so that's a referral trigger, not a topic
for reassurance. So one last thing, and it's about records and not language. None of this is a reason
to change how anyone talks to a recovery group or to document things less precisely.
It's a reason to know confidentiality rules cold. 42 CFR part two exists precisely because SUD treatment
records carry legal consequences that other medical records don't. And they're substantially revised
to align with HIPAA after the CARES Act with a compliance deadline in early 2026. So we have to ask
ourselves, who here knows right now what your program does if law enforcement asks for client records?
That's a very important question. So the second paradox, and this one protects our credibility, so it's
also important, would be to believe that it's easy to leave here thinking that the court's simply ignorant
about addiction. This isn't accurate, and it's not useful to teach. What the majority were looking for
in Hamadi is
And what it found is, quote unquote, a functional impairment standard. In other words, the court locked
onto a standard of someone who's incapable of conducting affairs, someone who lost the power of self-control.
And then they held the government to proving that standard. Hamani won because the government couldn't
show he was impaired in any way that mattered. The clinical framework and the Hamani framework actually
agree on one point. Use is not the same as disorder.
Frequency alone tells you very little about dangerousness. What matters is what the substance does to
a person. Categorical status is a poor proxy for individual risk. But they can also be different in
dangerous ways. The court reads incapacity from 19th century probate records. You read it from a clinical
interview. The court asks whether a category ever existed. You ask whether this person is impaired today.
And the court has no mechanism at all for the person who gets better.
So it's worth adding what contemporary medicine actually says, because the court never asks. DSM-5 describes
a spectrum disorder built for impaired control, social and occupational impairment, risky use,
and pharmacological phenomenon, including tolerance and withdrawal, that range from mild to severe.
ASAM describes addiction as a treatable chronic medical disease involving neurobiology, genetics,
environment, and experience characterized by compulsive engagement despite harmful consequences. Neither
of these definitions contains dangerousness to others as part of that definition. Addiction is a disease
state. Dangerousness is a risk assessment. One does not logically establish the other. So the case really
contains two independent questions, a clinical one and a regulatory one, and the historical method managed
to keep them separate.
This is something I'll skip through very quickly. This is an example of another case with what happens
with the law's approach. Melinda Vincent was convicted of bank fraud roughly 15 years ago, writing bad
checks during active addiction. She completed treatment, earned an undergrad degree, and two graduate
degrees. She founded a harm reduction coalition, and she started a counseling practice. The 10th Circuit
held that a 922G1
statute applied to her consistently with the Second Amendment. So after multiple relistings, the Supreme
Court denied the review of her case in April 2026, along roughly a dozen other similar felon in possession
petitions. By every other measure, this field uses, this is what success looks like. It has sustained
remission, education, employment, and a career spent giving other people the same chance. But by the
measure that governs the statute, she has a felony conviction, and the inquiry ends there.
The historical analog analysis asks what the category is, not what has happened to the person since.
And the point isn't that the courts are cruel or that the Supreme Court was wrong to deny review. It's
that the framework has no feel for and then she recovered. That's just a blank. 15 years of evidence
about who a person became doesn't fit anywhere in this analysis. The law is just blind to it. So,
Again, a little bit more, if you have the slide deck later, two justices actually make the argument
that law should not be blind to it. So there are real client stakes attached to this holding. If you
ask clients questions, they're gonna have real answers. I'm sorry, clients are gonna have real questions
about how this applies to them. A client might say, I heard the Supreme Court legalize guns and weed,
so I'm good to go.
A client might ask you what legal category they fit into. And you might ask yourself, what would you
want a judge to know about your clients that the law's framework isn't ready to hear or can't fit in,
and how you're going to language that so the legal framework can hear that. So one of the things I want
to cover quickly in wrapping up
is what has changed since Hamani. In the aftermath, the federal government can't prosecute someone under
the quote unquote unlawful user prong on regular marijuana use alone without more. And this even holds
in statutes where marijuana is illegal. Hamani's own state was Texas, so state legalization wasn't the
basis of the ruling and the holding travels. Medical marijuana
under state licensed and FDA approved marijuana drug products are moved to schedule three effective
of April 28th, 2026. And there's a federal rights restoration process that I'll talk about a little
later on under 925C that's functional again for the first time in about 30 years. That just came online
on April 26th, sorry, August 26th, 2026. I'll hit that as a last thing in the presentation. But there's
a lot of things that did not change and the media isn't clear about this.
State law didn't change. Possession, permits, carry, and permit applications all are untouched, irrespective
of marijuana. The firearms purchase form is untouched. The addicted to quote unquote prong is untouched.
Drug felonies still disarm. Adjudication and commitment still triggers federal prohibitions on firearms.
And most marijuana remains schedule one. One more category that's entirely unaffected is conditions
of supervision.
So programs that serve drug court participants, people on probation and parole, or people in diversion
are not affected by Hamani. Hamani does almost nothing for them. So a supervising court can prohibit
firearm possession as a condition of release, and violating it is a supervision violation, not a Second
Amendment question. That also goes for facility policies, sober living house rules, and employment policies.
The most misunderstood
I think here is the state law point. This ruling is about prosecution, not eligibility. This is just
a quick slide that I won't spend much time on, again, for your identification afterwards. The firearm
purchase form is called ATF form 4473. It's the mandatory firearms transaction record. It asks whether
the buyer is an unlawful user of or addicted to marijuana or any other controlled substance. When you
sign this form, it is signed under penalty of perjury.
A false answer is a crime and can be charged independently under a different federal statute, whether
or not the underlying possession of the firearm was ever prosecutable. The form has not cut up to Hamani
yet. So ATF said on the day that the case came down that it was reviewing the ruling. However, they
have not revised the form. And so I just wanted to give a caution about that. Finally,
This is one thing on your map that did not exist a month ago. On August 20th, 2026, the Justice Department
published a final rule creating a working process that's called Section 925C. This is a statutory route
for someone called a, quote, prohibited person, in other words, someone with a prior conviction, to
apply for restoration of federal firearm rights. It took effect September 21st, 2026, or it takes effect
next month. It's going to be rolled out in stages.
It's administered by the Office of the Pardon Attorney rather than the ATF. This is made functional
again after three decades of dormancy. It provides individualized review of whether the applicant is
likely to be dangerous and whether relief would be contrary to the public interest. There is a modest
fee for it. It does have an indigency waiver. What matters here, however, is that this is the first
federal mechanism in 30 years
that can actually receive evidence about who a person has become after they have a substance use conviction.
Conduct since here is disqualifying. So the government will look at record and reputation, character
references. This is an administrative process doing exactly the work that the government's constitutional,
that the Supreme Court's constitutional framework in Hamadi has no room for. And so,
It's addressed by regulation rather than constitutional law. There are waiting periods of five to 10
years after an offense. So in other words, you can't apply until five to 10 years after you commit the
offense. There is a presumption that someone with a serious or violent offense may not ever qualify.
Drug trafficking is going to get you a 10-year application waiver, for example.
The documentation is extensive, but for, can you imagine if this were available for employment, housing,
benefits waivers, child custody, that kind of thing. It's a step in the right direction for looking
at what people have done to change their lives. It also does not touch state prohibitions. Someone can
have their rights restored federally and still be barred in states where they live.
So what do you do when your client asks you about firearm rights quickly? Name that a legal question
exists and that it changed recently. You can describe the categories in general terms. You can know
and explain your program's confidential obligations under 42 CFR Part 2. You can maintain a live referral
list, the federal defender, state public defender, legal aid, reentry clinics, and nail a 925C process.
that where I work, the IU Maurer School of Law, we also have an expungement clinic. And we do expunge
offenses on the state level. In other words, prepare a warm handoff to those resources. Know what's
outside your scope. And that includes telling anyone whether or not they are a prohibited person, providing
guidance on how to answer form 4473, predicting whether a prosecution would succeed, advising on possession,
responding to a law enforcement records request without counsel,
reassuring you're fine now. And so none of this changes, of course, what you do clinically. So volunteer
safety planning is unaffected. Firearm access is still a recognized risk factor in overdose and suicide
prevention. Collaborative voluntary conversations about temporary storage remain standard practice.
These are clinical matters. Nothing here also obliges anyone to give up anything.
These conversations work when they're the client's choice, made with their family on their terms. Your
assessments will still assess what they always assess, severity, impairment, comorbidity, and risk.
The court doesn't redefine any clinical construct they don't have any authority to. Mandatory reporting
and duty to protect obligations are untouched because those are governed by state law, and state law
did not change here. And finally, if your organization has a trained lethal means curriculum,
I think it's important to tell clients about it. So what will I be watching over the coming year? I'll
be looking for the revised form 4473 to come down. I'll be looking for broader marijuana rescheduling.
A DEA hearing began on June 29th, 2026. But rescheduling is not de-scheduling.
This statute covers unlawful use of any controlled substance on any schedule. So unlawful use of a schedule
three substance is still unlawful use. Only removing marijuana from the CSA entirely would take it outside
922G3. I'll be looking in a law sense for the first individualized dangerousness prosecutions. The court
invited them to take place. So I'll be looking to see whether a specific substance like methamphetamine
or fentanyl, I think those are the obvious ones,
categorically renders users dangerousness. We're going to be looking at other substances than marijuana.
And I think this is going to result in a battle of experts on pharmacology and violence and a link between
the two. I'm looking for 925C as a rollout. I'm going to watch how many people actually get this. So
I think we'll be able to see within a year whether this is a genuine path or a paper path.
I'm looking to see whether it has a 2% grant rate or something more substantial. Because you're going
to be advising people whether or not to go through this process, because it's going to have a substantial
burden of paperwork. And if it has a 2% rate of grant, I'm not going to advise anyone I really care
about to go through that paperwork if it's not going to succeed. So a few things to carry out of the
room. And I realize that's really hard to read.
First of all, status versus conduct. The government can't impose a serious legal disability on a category
of persons without showing that the category actually tracks the harm it claims to prevent. Second,
the Controlled Substances Act isn't carrying the weight it was built for. It was designed to protect
health and general welfare, not to establish that a class of people is unusually dangerous. And notice
how many consequences are bolted onto the CSA now. I've talked about them. Immigration, public housing,
occupational licensing, child welfare, et cetera.
Each takes a public health classification and uses it as a proxy for something it was never designed
to resolve. Three, whose expertise counts and legal arguments has changed? We've moved from epidemiology
and risk research to legal history. This redistributes authority away from clinicians and social scientists
towards legal historians. Four, the disease model has never been automatically rights protective, and
we're seeing this now.
The history that the court digs up is history of guardianship, stigma, asylum commitment, and lost legal
capacity. It's an illness is not by itself a rights protective argument, and I think we too often assume
that it is. Here, the rights protective arguments are autonomy, individualized proof, and the government's
burden and not pathology. Five and last, we have to be scrupulous about what this case does not say.
It's not a holding that substance use and firearms mix safely,
The court says that that's not a question that it addresses. It doesn't weigh the risk literature because
the framework gives it nowhere to do that. So anyone who cites this case as evidence that that happened
is misreading it. And I'll conclude there. And I'll take questions.
No, but I think maybe on an ancillary note, the red flag laws or the Jake Laird laws, as they're known
in Indiana, if someone has a history of a certain substance, of use of a certain substance, like fentanyl
meth, et cetera, if it's ever linked to dangerousness, for example, in those individualized prosecutions
I just talked about, I think that might become a criteria for red flag determinations
if that link is ever made in individualized prosecutions. And this is why I think it's very dangerous
to link pharmacology to dangerousness for any particular substances, because the red flag law should
be based on individualized assessments, not, oh my gosh, he's on X substance, let's take his firearms
away. Austin asks a question, if that's all right. In your discussion of the CSA,
You very briefly mentioned immigration. And it's really clear that both state and federal policy or
practice is viewing residency as a means to define dangerousness. Can you expand a little bit on that
as it relates to the CSA? Yes. I would say those two things, like 1791 and drug use, have nothing really
to do with each other. And so their proxies as something
They're entirely specious proxies. So I guess I wish I could expand on that, but I think that the government
here is just bootstrapping something that it shouldn't to a category to be used as a filter, because
a better filter doesn't exist, but yet it needs a filter. But the two in actuality have nothing to do
with each other. So in practice, where we're asking for our clients
proof of residency, that's just a bootstrap legal guideline. Yes, because obviously these affect the
same harms no matter where we live. And in actuality, it's being used to deny care that everyone should
qualify for. Excuse me. I was under the impression that the federal laws overrides the state laws. But
I believe what I heard was you still get prosecuted during the state.
And that seems, I guess, a little bit backwards, doesn't it? Yes, there is a system of state fire and
law. And the federal law can prohibit people for federal crimes. The state can have its own disqualifying
measures as well. And so you can be disqualified both on the state level and on the federal level.
It can also work in the reverse way. If you have state crimes that would disqualify you, you can have
those crimes expunged but still be prohibited on the federal level. But there's two tiers. Thank you.
It's often very frustrating to people to find that out. I just wanted to state that I think it's crazy
that we're looking at
things from 1700s when animals had more rights than women and children then? I will note that in the
1700s, talking about animals having rights, we also prosecuted animals for witchcraft. So we were very
sophisticated legally in the 1700s. We totally knew what we were doing. Yeah, totally. I mean, if your
cow got sick, that also meant that someone really hated you in the village.
That's where we get our medical treatment from now, folks. If you have any questions or want any other
information, I'll make my slides available to you guys. Also, if you have any questions, I'm right down
the road at Mauer Law. My last name is Madeira, like the wine. In fact, the Washington drink. So same
spelling. Thank you. Thank you so much, Jody.