Will Baude

It's constitutional to have this rule for a regular user of even marijuana, but not for somebody who used it once or who, you know, didn't inhale when they passed the bong around or whatever.

Then presumably the indictment and the jury instructions will have to say something about this.

Like they'll have to indict you as a, like the statute just says user.

They'll have to indict you not just as a user under the statute, but they'll have to indict you as a habitual user under the statute as construed by Hamani.

And then you'll be entitled to a Hamani instruction where they have to prove that you were a user where user is defined to mean use it at least once a week or something.

And if the next person doesn't admit to the cops how often they use it, they'll have to somehow prove that.

Yes.

It's a little tricky because sometimes when a statute is unconstitutionally vague, the court then narrows it to its core.

Right.

In cases about honest services fraud or whatever, they say, well, okay, we're not sure.

But the one thing we are sure is, you know, habitual drunkard.

So if you are the marijuana equivalent of a habitual drunkard, it can be applied to you.

Other times, as in the Armed Criminals Act, the court just gives up.

Yeah.

Like, we're not going to try to find a core.

We just don't know what this means.

And if Congress wants a statute, they can try harder.

Yeah.

So going that route then still opens up multiple forks.

Especially because, and why it's nice to talk to these cases in the same episode, because these cases are both being considered in the same term and many ways will be being written.