SCOTUS Said You Can't Lose Gun Rights for Smoking Pot. But You Could Still Lose a Government License To Work.

In June, a unanimous Supreme Court ruled in United States v. Hemani that the government can’t strip your right to possess a firearm just because you smoke marijuana. Yet an old drug conviction could still stop you from waxing eyebrows, cutting hair, or giving massages.

Hemani highlights a double standard in constitutional law: Courts roll out the red carpet for some rights while relegating others—like the right to earn a living—to the service entrance.

In Hemani, the Supreme Court held that Ali Hemani could not be prosecuted for possessing a handgun while being an unlawful user of marijuana. Under the Court’s Second Amendment framework, when a law burdens protected conduct—like possessing a gun—the government must show that the law is consistent with a historical tradition of firearm regulation. Here, the Court held that the government failed that test.

But similar laws face a much more forgiving test when it comes to a different right—the right to earn a living. States often employ “good moral character” requirements for a license to do certain jobs, which means regulators can deny licenses due to past drug convictions. These requirements have a similar effect as the law that prevented Hemani from possessing a gun because of his marijuana habit.

For example, Courtney Haveman was denied a cosmetology license to do facials and hair removal because of misdemeanors from her drinking days—years after she’d gotten sober. Thankfully, a court held that the character requirement violated the Pennsylvania Constitution.

But a win like Haveman’s is rare, and character requirements still abound. Texas bureaucrats can bar you from being a dietitian if you have an old conviction for drug possession. State licensing boards have broad leeway to deny people a license to work—from exterminators to beauticians—thanks to past convictions or even mere arrests that have no bearing on their ability to do the job. Hemani’s habitual marijuana use cannot keep him from owning a firearm, but an old drug charge may well prevent you from advising people to eat their vegetables.

Laws that restrict your right to work enjoy far greater latitude than laws restricting your right to possess a firearm. Unlike in the Second Amendment context, where laws that restrict protected conduct, like possessing a firearm, are presumed unconstitutional, laws restricting the right to earn a living face the opposite presumption: They are constitutional unless the challenger can show they lack any “rational basis.” This burden is nigh impossible to meet, because courts have said that even an imaginary rationale can justify a law that burdens your right to work.

Why the asymmetry? The error traces back to one of the most famous (or infamous) footnotes in Supreme Court history. In the Depression-era case United States vs. Carolene Products, the Court upheld a law pushed by the dairy lobby that prohibited interstate shipment of milk substitutes, stating that laws “affecting ordinary commercial transactions” are “presumed” constitutional. Then it dropped the footnote that has since graced every textbook on constitutional law: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments.” In other words, if the right is listed in the Constitution, like the right to bear arms, it comes within the Constitution’s full protection, while unenumerated rights are left to the mercy of regulators.

At first glance, a distinction between rights listed in the Constitution and rights that go unmentioned might make sense. But in fact, this logic misunderstands the Bill of Rights at a basic molecular level. The framers saw the Bill of Rights as a redundant fail-safe because they thought the original Constitution already protected individual liberties. They worried that spelling out a Bill of Rights might imply that any rights left off the list didn’t deserve protection. James Madison, the Bill of Rights’ primary author, fretted that it would imply “that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.”

So Madison inserted the Ninth Amendment as a precaution: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, all the rights long protected under common law—which included the right to earn a living—were preserved, and the Bill of Rights did not imply otherwise. Yet Carolene Products Footnote 4 did exactly what Madison feared.

This laid the foundation for today’s two-tiered system: the strict approach to the law prohibiting marijuana users from possessing guns in Hemani and the forgiving stance on similar “good moral character” requirements that keep people out of jobs. What would happen if we accorded the right to earn a living the same protection as the right to bear arms, demanding that laws burdening the right to work have roots in the nation’s tradition of regulating professions? Courts would almost certainly strike “good moral character” requirements down if that were the question asked, because there is no longstanding tradition of keeping people out of work due to a minor criminal record.

While some professional licensing existed historically, character requirements were limited to trust-heavy professions like attorneys and focused on fraud, not minor misdemeanors for substance abuse. Instead courts uphold character requirements for occupational licenses so long as anyone can drum up a rational basis for the burden on individual rights. Hence, the Ali Hemanis get their guns and their marijuana, while the Courtney Havemans cannot work in their chosen profession because of a messy past. That is the precise dichotomy the Framers feared, and this would be a good year to start restoring their vision.

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