Alito Concurrence in Judgment
Whether 18 U.S.C. §922(g)(3), the federal statute that prohibits the possession of firearms by a person who "is an unlawful user of or addicted to any controlled substance," violates the Second Amendment as applied to respondent.
Alito concurs in the judgment only — he agrees with the result but rejects the majority opinion entirely, believing the case fails on the mismatched historical analogues alone.
Where Alito Aligns with the Majority
- The government's historical analogues are insufficient — not similar enough to the modern law (§922(g)(3) as applied to drug users)
- This decision does not undermine other §922(g) prohibitions:
- §922(g)(1) — felons
- §922(g)(4) — mentally ill
- These remain constitutional
The Government's Historical Analogue (and Its Problem)
The government relied on historical "Habitual Drunkard Laws" to justify the ban on gun possession by drug users. Historical drunkard laws were not written to apply to just anyone who drank a lot, because that was essentially everyone. Instead these laws applied to people who were incapable of managing their lives or of making sound decisions due to their alcohol use. Someone you might actually call "a drunk," whether they were actually intoxicated at the time or not.
The Government mismatches habitual drunkard laws with drug laws that apply to any use at all.
Evidentiary Record — What We Know vs. Don't Know
The facts we have in evidence for this case are very limited.
- Respondent used marijuana approximately every other day
- Quantity used, strength, or location
- Frequency within a day
- How much his marijuana use impacted his life
The Government has therefore failed to show that Habitual Drunkard Laws are historical analogues to modern drug laws, at least in this case.
Alito's Comparison — The Analogue Fails
"…marijuana use today is like alcohol use at the founding. It is widespread and increasingly considered socially acceptable in many quarters. And from a practical standpoint, law enforcement widely tolerates the use of marijuana."
The federal government currently classifies marijuana as a Schedule I drug, meaning it is deemed to have: high potential for abuse, no currently accepted medical use in treatment in the US, and lack of accepted safety for use under medical supervision.
Congressional Rule on Medical Marijuana
Congress has prohibited the DOJ from blocking state attempts to regulate (legally) medical marijuana.
On its face, this prevents DOJ from interfering directly with state efforts, but some federal courts have interpreted this move to block criminal investigations of medical marijuana activities by private individuals.
Congressional Research Service, L. Sacco & J. Lampe, The Federal Status of Marijuana and the Policy Gap with the States 2 (2026). Cited by Alito, J., concurring in judgment, FN 1.
The Government's Analogue Undermines Itself
Like alcohol at the founding, where the letter of the law (Habitual Drunkard Laws did not explicitly limit themselves beyond regular users of alcohol) and the enforcement of those laws (and yet the laws were only applied in narrow circumstances), marijuana laws today show a disparate wording (Schedule I) and application (restriction on DOJ).
The government hoped to use habitual drunkard laws as an analogue to modern marijuana laws. If anything, they demonstrated in their similarity that as applied, habitual drunkard laws would have rarely if ever disarmed marijuana users, unless proof existed that the drug made the user incapable of decision-making.
Alito's Bottom Line
The government's analogues are too far afield to prove that a law which disarmed a truly habitually incapacitated individual is historically analogous to one that disarms an individual like the respondent, who is engaged in "regular use" of a drug that is gaining wider acceptance due to the perception that it is less dangerous.
"We need not say more to decide this case, and I would for that reason say no more. I accordingly would affirm on this ground alone."
Alito's analysis here is a worked example of means-end scrutiny — the framework unifying all standards of review (strict scrutiny, intermediate scrutiny, rational basis). The question is always: does the government's chosen means (banning gun possession by any drug user) fit its stated end (preventing dangerously incapacitated individuals from possessing firearms)? Alito concludes the fit is too loose — the historical analogues don't justify the modern law's breadth.