A Case That Should Alarm Liberals Too
The Supreme Court heard arguments last week in a case that most of the mainstream press is covering as a gun rights story. It isn't — or rather, it isn't only that. It is a civil rights case about whether the government can permanently deprive a class of people of constitutional protections based on membership in a status category, not based on a specific dangerous act.
The federal law at issue, 18 U.S.C. § 922(g)(3), makes it a crime for anyone who is "an unlawful user of or addicted to any controlled substance" to possess a firearm. Not someone who committed a violent crime while under the influence. Not someone who used a weapon while impaired. Someone who uses drugs — past tense, present tense, regardless of current dangerousness — is categorically disarmed.
The government's position, which several justices pressed hard during oral argument, is that this falls within America's historical tradition of disarming "dangerous" classes of persons. Under the Bruen framework the Court established in 2022, gun regulations must have historical analogues. And the government's analogues are genuinely disturbing: laws disarming "lunatics," laws disarming the "disloyal," laws disarming free Black citizens that were struck down by the Fourteenth Amendment.
That last category should give everyone pause.
The Status Problem
There is a meaningful constitutional difference between punishing conduct and eliminating rights based on status. Criminal law, at its core, is supposed to punish acts — things a person did, with mens rea, with consequences proportional to harm caused. The drug user gun prohibition is not that. It is a categorical rule that says: if you belong to this class of people, you forfeit a constitutional right. Permanently. Regardless of whether you pose any specific threat to anyone.
I teach civil rights history, and the parallels to categories we have long since rejected are not comfortable. Jim Crow disarmed Black Southerners not based on anything they had done but based on what they were. Vagrancy laws criminalized status rather than conduct. The Dred Scott decision, among its horrors, specifically held that Black citizens could not be trusted with firearms — the argument being that their status made them inherently dangerous.
We spent a century dismantling the legal architecture of status-based rights deprivation. The Equal Protection Clause exists precisely because we recognized that permanent categorization of persons as second-class rights-holders is incompatible with constitutional government. And yet here is the federal government, in 2026, arguing that drug users are a class of people who can be stripped of Second Amendment rights indefinitely, based on behavioral characteristics rather than specific dangerous conduct.
The Second Amendment is not my primary constitutional concern in daily life. But the principle that rights can be taken based on status rather than conduct — that principle is everyone's concern, regardless of how you feel about guns.
What the Historical Record Actually Shows
The Bruen test requires historical analogues from the founding era or the Reconstruction era. The government's proposed analogues are thin. Colonial-era laws disarming "dangerous" persons were largely aimed at specific categories of enemies — British loyalists, Native Americans in specific conflict contexts, enslaved people. These are not analogues that a Court committed to the Fourteenth Amendment's equality principles should find persuasive.
The more relevant historical tradition points the other way. The Founders' understanding of dangerous persons who could be disarmed centered on those who had committed specific violent acts or who were in a state of active insurrection. Not drug users. Not the mentally ill as a categorical group. Not people whose "status" suggested potential future dangerousness.
Justice Clarence Thomas, who wrote Bruen, has been consistent that the historical tradition matters and that categorical disarmament of large classes of people requires serious historical justification. Several other justices pressed the government's attorneys on how broadly their theory could be extended. If drug users can be disarmed based on presumed dangerousness, what about people who have been involuntarily committed to psychiatric facilities and later recovered? What about people with certain medical diagnoses? The government's logic, pushed to its conclusion, licenses an enormous amount of status-based rights stripping.
The Ruling's Real Stakes
A decision upholding § 922(g)(3) would not just affect drug users. It would validate the constitutional logic that the government can identify classes of people, declare them insufficiently trustworthy to exercise constitutional rights, and strip those rights without a specific criminal conviction for a specific dangerous act. That logic does not stop at the Second Amendment.
The same framework — identify a status category, declare it dangerous, remove rights — has been used throughout American history against groups we have since recognized as deserving of equal protection. The fact that the current target is drug users, a group that generates less political sympathy than, say, racial minorities, does not make the constitutional principle less important. Constitutional rules protect unpopular people too. That is the whole point.
My read of the oral argument is that at least four justices are skeptical of the government's position in its broadest form. Whether they can coalesce around a narrowing principle — allowing disarmament in some contexts while rejecting the categorical approach — or whether they strike down the provision entirely, will determine how far the Court is willing to let status-based rights deprivation extend.
The outcome matters. Not because of guns. Because of what kind of country we are building — one where rights are held by all citizens as citizens, or one where the government gets to sort people into categories and assign constitutional protection accordingly.
We have tried the second approach before. It did not go well.
