Mar. 4, 2026
NR PLUS Law & the Courts

What the Founders’ Drinking Habits Have to Do with Gun Rights

By Charles C. W. Cooke
March 3, 2026 2:41 PM


Supreme Court Associate Justice Neil Gorsuch poses during a group portrait at the Supreme Court in Washington, D.C., October 7, 2022. (Evelyn Hockstein/Reuters)

Justice Gorsuch raised the issue during oral arguments this week. ... During yesterday’s oral arguments in the case of United States v. Hemani, Justice Neil Gorsuch posed a question that has not typically been debated in detail at the Supreme Court: whether the Founding Fathers of the United States were “all habitual drunkards.” ... To casual observers this line of inquiry may have sounded somewhat peculiar — or perhaps even rude. On the contrary: It was brilliant. At stake in Hemani is the question of whether a person who is “an unlawful user of or addicted to any controlled substance” can, by virtue of that habit, be generally banned from purchasing, possessing, and carrying firearms. At present, under 18 U.S.C. Section 922(g)(3), they can. But, in recent years this provision has come under attack — including in recent cases heard by the United States District Court for the Eastern District of Texas and the U.S. Court of Appeals for the Fifth Circuit, both of which held that it is unconstitutional when used to charge someone who regularly uses drugs but has not been shown to have used them while in possession of a weapon.

Summing up the practical case for the rule, Justice Elena Kagan suggested that “when reality dissolves, you don’t want guns around.” But, while entirely defensible in a vacuum, this is not in fact the relevant legal standard. Under the 2022 Bruen decision, the relevant legal standard is whether, historically, any laws in the United States deprived individuals of their right to keep and bear arms on the grounds that they were “addicted to a controlled substance.” The answer to this question is that no such laws existed — and, moreover, that there were no “controlled substances,” in the legal sense of that term, until the mid-to-late 19th century. This being so, Bruen obliges the government to reason by analogy and to find “relevantly similar” laws to the one that it is defending in Court. To achieve this, it is all but forced to examine the regulation of booze.

It is true that, historically, America has hosted laws that sought to separate drunkards and drug users from their weapons. Crucially, though, these separations were invariably temporary. An armed man who was visibly hammered in the streets could be disarmed and thrown in a cell to sober up. But he was given back his gun the next morning. Likewise, the taverns and saloons that required patrons to check their firearms at the door returned them when the customer left. Simply being a drinker — whether casually or to excess — was not sufficient grounds for exclusion. If the use and the possession coincided, the government could act. If they did not, it was powerless. As the United States District Court for the Eastern District of Texas concluded, the “statutes” that the government points to as evidence of its historical authority do indeed “bar the use of firearms by intoxicated people,” but “the violation of these statutes only results in fines and imprisonment — not disarmament” on an ongoing basis.

Hence Gorsuch’s unassailable question. One can quibble with the exact amounts at hand, but the answer to “Were the Founders a bunch of drunkards?” is unequivocally “yes.” The plaintiff in Hemani was prosecuted after he told the authorities that he used marijuana every other day. Does that constitute an “addiction” — a term that is never defined in the statute? If so, one might have expected to find some similar rules governing alcohol — rules that did not apply temporarily, but that foreclosed the possibility of gun ownership to anyone who constantly imbibed. As Justice Gorsuch noted, if Hemani was “addicted,” then so, surely, were the Founders. The record shows that “James Madison reportedly drank a pint of whiskey every day,” and that Thomas Jefferson, who “said he wasn’t much a user of alcohol . . . had three or four glasses of wine a night.” Indeed, two nights before the end of the Constitutional Convention in Philadelphia, 55 attendees repaired to the City Tavern, where, on George Washington’s tab, they “drank 54 bottles of Madeira, 60 bottles of Claret, 8 bottles of Whiskey, 22 bottles of Porter, 8 bottles of Hard Cider, 12 of Beer and seven bowls of Alcoholic Punch.” These, lest we forget, were the men who debated, wrote, and enforced the Second Amendment, the many state-level equivalents that preceded and succeeded it, and the majority of the statutes that filled the law books of the original 13 colonies. Evidently, none of them expected to be disarmed or to disarm their similarly “addicted” peers. ... Permanently depriving a person of an enumerated constitutional right is supposed to be difficult. Under existing Supreme Court precedent, the federal government is permitted to do so in connection with the Second Amendment only in such instances as it can point to a “historical tradition of firearm regulation” that is consistent with its present administration. In Hemani, the government fails in that task — and all because the founding generation comprised a bunch of hearty libertarian sponges.

Charles C. W. Cooke is a senior editor at National Review and the host of The Charles C. W. Cooke Podcast. @charlescwcooke