United States v. Hemani · ¶92

Although I agree with the Court on these points, I would affirm on a different ground from those on which the majority relies. As the opinion of the Court explains, the habitual-drunkard laws that the Government cites did not allow officials to disarm all those who “regularly used intoxicants,” or even just those who “sometimes used them to excess.” Ante, at 785. These laws instead threatened disarmament only for those whose use of an intoxicant “rendered them practically incapacitated and incapable of managing their affairs.” Ante, at 785–786. Those persons drank so much, so often, that they were incapacitated not only during bouts of drunkenness but also in a more persistent and pervasive manner. Yet the Government argues that these historical analogues establish a regulatory tradition that allows it to disarm “anyone” who regularly uses “any amount” of marijuana unlawfully. Ante, at…

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