SCOTUS Said You Can’t Lose Gun Rights for Smoking Pot. But You Could Still Lose a Government License To Work.
The Supreme Court ruled unanimously in June. United States / Hemani That the government cannot take away your right to own a firearm just because you smoke marijuana. But a past drug conviction could still keep you from waxing your eyebrows, cutting your hair, or getting a massage.
Hemani He draws attention to the double standard in constitutional law: While courts roll out the red carpet for some rights, they relegate other rights, such as the right to subsistence, to service access.
Inside HemaniThe Supreme Court ruled that Ali Hemani could not be tried for possession of a gun during the illegal use of marijuana. Under the court’s Second Amendment framework, when a law mandates protected behavior, such as gun ownership, the government must show that the law is consistent with the historical tradition of firearm regulation. Here, the Court ruled that the government failed this test.
However similar laws You face a much more forgiving test when it comes to a different right: the right to earn a living. States often use “good moral character” requirements for a license to perform certain businesses; This means regulators can deny licenses because of past drug convictions. These requirements have similar effect to the law that prevented Hemani from owning a gun because of his marijuana habit.
For example, Courtney Haveman rejected Because of her misdemeanors during her drinking days, she had obtained a cosmetology license to perform facials and epilation; years after getting sober. Thank God it’s a court afflicted that the character requirement violates the Pennsylvania Constitution.
But a win like Haveman’s is rare, and the character requirements are still quite high. If you have a history of drug possession, Texas bureaucrats may ban you from becoming a dietitian. State licensing boards have broad authority to grant work permits to people from exterminators to beauticians, thanks to past convictions or even simple arrests that have no impact on their ability to do the job. Hemani’s marijuana use won’t stop him from owning a firearm, but an old drug charge might stop you from advising people to eat their vegetables.
Laws restricting your right to work have much greater latitude than laws restricting your right to own a firearm. Unlike the Second Amendment context, where laws restricting protected behavior such as firearm ownership are deemed unconstitutional, laws restricting the right to subsistence face the opposite presumption: They are constitutional unless the opposing party can show that they lack any “rational basis.” This burden is almost impossible to meet because the courts in question even one imaginary The reason may justify a law that challenges your right to work.
Why asymmetry? The error dates back to one of the most famous (or infamous) footnotes in Supreme Court history. In the case of the Depression era United States vs. Carolen ProductsIn , the Court upheld a law enacted by the dairy lobby banning interstate shipments of milk substitutes, stating that laws “affecting ordinary business transactions” are “presumed” unconstitutional. He then dropped the footnote that has graced every textbook on constitutional law since: “There may be narrower scope for the operation of the presumption of constitutionality if the legislature appears on its face to be within a particular prohibition of the Constitution, as in the first ten Amendments.” In other words, if a right such as the right to bear arms is included in the Constitution, it falls within the full protection of the Constitution, while unenumerable rights are left to the mercy of the regulators.
At first glance, it may seem logical to make a distinction between the rights listed in the Constitution and those that are not. But in fact, this logic misunderstands the Bill of Rights at a fundamental molecular level. The framers viewed the Bill of Rights as an unnecessary safeguard because they thought the original Constitution already protected individual liberties. They were concerned that the promulgation of a Bill of Rights might mean that rights excluded from the list did not deserve protection. James Madison, principal author of the Bill of Rights anxious He said it would imply that “unreserved rights were intended to be placed in the hands of the General Government, and were therefore insecure.”
So Madison added the Ninth Amendment as a precaution: “The enumeration in the Constitution of particular rights shall not be construed as a denial or disparagement of other rights retained by the people.” In other words, all rights long protected under common law, including the right to earn a living, were preserved, and the Bill of Rights did not imply otherwise. Yet Carolen Products Footnote 4 did exactly what Madison feared.
This laid the foundation for today’s two-tiered system: the strict approach to the law that prohibits marijuana users from carrying guns. Hemani and a forgiving stance on similar “good moral character” requirements that keep people out of jobs. What if we granted the right to earn a living the same protection as the right to bear arms, demanding that laws imposing the right to work be rooted in the nation’s tradition of regulating occupations? If the question were posed that way, courts would almost certainly disregard “good moral character” requirements, because there is no long-standing tradition of keeping people away from work because of a minor criminal record.
While some professional licenses have historically existed, character requirements were limited to trust-intensive professions such as law and focused on fraud rather than minor misdemeanors such as substance abuse. Instead, courts support character requirements for professional licenses as long as everyone can establish a rational basis for the burden on individual rights. Therefore, while the Ali Hemanis get their guns and marijuana, the Courtney Havemans cannot work in their chosen profession due to their complicated past. This was exactly the dilemma the Framers feared, and this would be a good year to start reclaiming their vision.
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