ATF/NICS firearm purchase form showing the marijuana-user exclusion question. iStock-919659526
The U.S. Supreme Court today heard vigorous oral arguments in United States v. Hemani, a high-profile Second Amendment case testing whether a decades-old federal law can permanently disarm Americans who regularly use marijuana or other controlled substances. The justices appeared deeply divided on the scope of historical analogues but broadly skeptical of applying the ban to non-impaired, occasional-to-moderate users, denoting a likely victory for respondent Ali Danial Hemaniand potentially millions of cannabis consumers in states where the drug is legal.
The case revolves on 18 U.S.C. § 922(g)(3), part of the 1968 Gun Control Act, which makes it a felony for any “unlawful user of or addicted to any controlled substance” to possess a firearm or ammunition. Marijuana is still a Schedule I substance under federal law, despite legalization or decriminalization in most states and continuing efforts (including under the current Trump administration) to reschedule it to Schedule III.
ADVERTISEMENT
United States v. Hemani
In 2022, FBI agents raided the Denton County, Texas, home shared by Hemani (a 25-year-old dual U.S.-Pakistani citizen) and his parents as part of a wider investigation. They found a 9mm pistol, a small amount of marijuana, and trace cocaine. Hemani admitted to smoking marijuana “every other day.” He was indicted only on the § 922(g)(3) charge, with no allegation that he was intoxicated at the moment he possessed the gun, and no other charges were filed.
Hemani moved to dismiss, arguing the statute violated the Second Amendment as applied to him. Both the federal district court and the conservative 5th U.S. Circuit Court of Appeals agreed, relying on the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen. That ruling requires modern gun restrictions to be “consistent with this Nation’s historical tradition of firearm regulation.” The 5th Circuit held that § 922(g)(3) can constitutionally apply only when the government proves the defendant was presently intoxicated while possessing the firearm. Habitual or past use alone is insufficient.
The Government’s Defense of the Ban
ADVERTISEMENT
The United States, represented by Sarah M. Harris, Principal Deputy Solicitor General, defended the law as a “modest, temporary” restriction on a category of people who present special risks when mixing firearms and mind-altering substances. She pointed to founding-era laws disarming “habitual drunkards,” vagrants, and those subject to civil commitment or surety bonds measures that targeted individuals whose frequent intoxicant use created public-safety dangers without requiring proof of intoxication at every moment.
Harris emphasized that the restriction is reversible (rights can be restored upon cessation of use) and that illegal drugs differ from alcohol because of their federal illegality, association with black-market violence, and explicit congressional scheduling judgments about abuse potential and lack of accepted medical use.
Hemani’s Rebuttal: A Historical Mismatch
Hemani’s lawyers, Erin E. Murphy (of Clement & Murphy PLLC, arguing alongside ACLU and other counsel), countered that the government’s analogy fails Bruen’s“relevantly similar” test.
Historical “habitual drunkard” laws focused on severe, life-disrupting intoxication, people who were “falling-down drunk,” neglecting families, or unable to function, not moderate or occasional users. Founding-era Americans, she noted, consumed far more alcohol than modern marijuana users without losing gun rights. Applying the ban to someone who consumes marijuana “a few times a week” is a category error and renders the statute unconstitutionally vague and overbroad.
Murphy urged the Court to limit the “unlawful user” prong to cases of proven functional impairment or to strike it entirely, while conceding that the “addict” prong (loss of self-control) may have firmer historical grounding.
Gorsuch, Barrett Signal Skepticism
Justice Neil Gorsuch repeatedly pointed out the mismatch. He asked whether daily hard cider drinkers like John Adams or nightly whiskey drinkers like James Madison would have been disarmed. When Harris suggested the law targets “habitual” illegal-drug use, Gorsuch quipped about “one gummy bear every other night” and pressed whether that qualifies. He appeared inclined to rule narrowly for Hemani: “Isn’t it just enough to say that is not a habitual drunkard?”
Justice Amy Coney Barrett zeroed in on practical absurdity. She asked whether lawful users of Ambien, Xanax, or even Robitussin who exceed dosage become “unlawful users” subject to lifetime disarmament. She questioned whether Congressional scheduling decisions automatically translate into Second Amendment disqualifications. Barrett seemed open to some restrictions, but unconvinced of a blanket rule untethered to actual dangerousness.
Liberal Judges Focus on Dangerousness
Justices Sonia Sotomayor and Ketanji Brown Jackson (who dissented or concurred skeptically in Bruen and Rahimi) expressed concern that the government offered no specific congressional finding that marijuana users as a class are dangerously impaired with guns. Sotomayor stressed that historical drunkard laws required evidence of lost self-control affecting daily life. Both appeared ready to side with Hemani.
Justice Elena Kagan explored hypotheticals involving hallucinogens like ayahuasca, probing whether frequency alone or functional impairment should determine whether gun rights are lost.
Chief Justice John Roberts and Justice Samuel Alito voiced practical worries about the government’s position. Roberts questioned whether case-by-case dangerousness hearings would flood courts. Alito noted modern synthetic drugs post-date the founding and suggested stricter rules might be justified for substances unlike culturally entrenched alcohol. They appeared more receptive to upholding the ban in its entirety.
The overall tone was technical and respectful, with occasional flashes of humor (Gorsuch’s Founding Fathers drinking references drew chuckles). There was broad agreement that the “addict” prong has historical support if properly tied to loss-of-control cases. The fight centered on the far broader “unlawful user” prong, which is likely a good thing for the Second Amendment.
Likely a Narrow Ruling — With Major National Impact
While no final votes were cast today, a majority appeared prepared to rule for Hemani at a minimum, striking the law as applied to him and likely narrowing § 922(g)(3) to require proof of present impairment, addiction, or clear dangerousness. A divided decision is possible, with different justices writing separately on how Bruen’s history-and-tradition test applies to modern substances.
The ruling, expected by late June, would have enormous practical consequences. It could open gun ownership to tens of millions of state-sanctioned marijuana users, force ATF form revisions, and intersect with federal rescheduling efforts. It would also test the durability of the Bruenframework just four years after it upended Second Amendment jurisprudence.
For now, the justices’ questions today suggest the federal government’s categorical ban on gun ownership by marijuana users is on shaky constitutional ground.
! That’s the baggie the bud tender gets to take home as a tip! 
so divided.